Arnold v. Downing

By the Court, Shankland, J. The note was due immediately, and allowing the creditor the benefit of the eighteen months, as provided by statute, to be added, in consequence of the debt- or’s death, (2 R. S. 448, § 8,) the seven years and six months elapsed on the 23d of July, 1846. (3 Hill, 36.) And as this suit was not instituted until March, 1850, the question turns upon the effect of the surrogate’s decree and order for distribution. Neither the administratrix’s petition nor the order of sale to pay debts, nor any of the other proceedings before the surrogate, mention any particular debt as due to the plaintiffs, or whether it was upon a note. But as no objection seems to have been raised for the want of that proof, I shall take it for granted that the indebtedness to the plaintiff, as established by the decree, was on this note. The question then is, whether the decree of the surrogate establishing the indebtedness on this note, and ordering a pro rata payment out of the assets of the decedent, is in law a.promise on the part of the administratrix to pay the balance, so as to deprive her of the benefit of the statute of limitations. It- seems to me quite clear that it is not. In order to take a demand out of the statute of limitations, by a part payment, it must appear that the payment was made on account of the debt for which the action is brought. And it must further appear that the payment is made as part payment of a larger debt; because the principle upon which a part payment takes a case out of the statute is, that it admits a larger debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it can not operate as an admission of any still existing debt. On this principle it was held, in the case of Deyo v. Jones, (19 Wend. 491,) that the consent of an executrix of her husband, that a note of her husband which was barred by the statute, might be deducted' from a legacy due to her, by her father’s will, did not amount to a promise to pay the balance of the note, so as to revive the debt against her as such [557] executrix of her husband; although said note was owned by the estate of her father. And the court say, “ that the admission, to avoid the statute, must amount to an unqualified acknowledgment of the debt, without any circumstance connected therewith indicating an intention not to become liable upon it. So in Davis v. Edwards, (6 Eng. Law and Eq. Rep. 520,) it was held that a payment on a note, made by the assignee of an insolvent under the directions of the insolvent debtor’s court, was insufficient to take the case out of the statute of limitations, as against the insolvent, or the other makers of the note. (6 Mees. & W. 824. 1 Exch. Rep. 117.) Some of the English cases hold that there must not only be a part payment of the debt, but even an express promise in writing to pay the balance, in order to save the statute. (1 Exch. Rep. 118.) But since, there the rule has been changed, and an actual payment of part of a larger debt, is evidence of a promise to pay the balance, (Cleave v. Jones, 4 Eng. Rep. 514,) although not in writing, the same as was held, before the statute, requiring new promises to be in writing. It has been so held in Massachusetts also, under their act, which is similar to the English statute, and to the present code of this state. (9 Metc. 482. Code, 1110.) But in order to make a part payment, evidence of a promise to pay the balance, it must be voluntary on the part of the debtor, and it must occur under such circumstances as are consistent with an intent to pay such balance; which is not the case when the payment is involuntary, or in the course of administering the assets of insolvents, bankrupts, or under decrees of surrogates. ' In this case the answer expressly denies that the payment was made by the administratrix, or with her assent; and there is no proof that it was so made. But if the complaint was founded upon the decree of the surrogate, instead of the note, still the statute of limitations would be a valid bar, because those courts are not courts of record, and the 18th section of the statute of limitations (2 R. S. 224) declares judgments of courts not of record to be barred in six years. The statute (2 R. S. 206, § 1) declares the several courts treated [558] of in the first chapter of the act to he courts of record; in which chapter surrogates’ courts are not included. [Chenango General Term, January 13, 1852. Mason, Crippen, Shankland and Gray, Justices.] For the above reasons, the judgment should he reversed and a new trial granted, with costs to abide the event.