Hayden v. Pierce

HARDIN, P. J. Whether the note was paid, or not, by the conveyance of the house and lot mentioned in the pleadings and the-evidence, was a question of fact, for the jury. Mrs. Margaret B. Wilber testified in behalf of the plaintiff, and in the course of her evidence she said: “Mrs. Brown was wheeled up to our house, and she said she did not think she had done enough for Louisa; that she (Mrs. Brown) had become paralyzed since she gave plaintiff the note, and she wanted to do something more for her, and she thought the best thing she could do would be to buy thepiaintiff a house and lot. Then she said that with the note the plaintiff had, and with a house and lot, the plaintiff could, by doing what little work she-could,—could make a living. * * * Mrs. Brown said, T don’t want to58 ■change my will, but I want to deed her [the plaintiff] this house.’ Mrs. Brown was to have the rentals during her lifetime, and said, T have money ■enough to give her this house, and not change my will.’ * * * Mrs. Brown said she wanted to give the house and lot, besides the $1,000 note, and felt she had not given Louisa as much as she ought to do. I knew of Mrs. Brown giving the plaintiff the $1,000 note. She (Mrs. Brown) asked me how much she ought to give Louisa. She asked me if I thought $500 was enough, and I said, ‘No.’ She then asked me if I thought $1,000 was enough, and I said it was none too much. I told her (Mrs. Brown) that was not as much ■as plaintiff had earned.” In giving evidence of the declarations of the testatrix, the witness Deifendorf said: “She said she didn’t think she had done enough for Louisa, and she had bought a house and lot, and wanted to know of me what I thought about her giving her the house and lot. I told her that she couldn’t do too much for Louisa. Then she said she concluded to give her a deed of that place, but to be hers as long as she lived; that is, Mrs. Brown’s. I attended to the execution of the deed.” We think the evidence just quoted, together with the other testimony bearing on the subject, amply justified the jury in finding that it was not the intention of the testatrix to satisfy and cancel the note by the conveyance of the house and lot to the plaintiff. We must therefore accept the verdict upon the question involved, ■as it is predicated upon evidence ample and sufficient to justify -a finding that the note had not been paid by the testatrix. 2. It appears by the evidence that the defendant resided in the ■city of Chicago, in the state of Illinois, when she took letters testamentary, and she has continued to reside there. We think the defendant failed to make out a defense under section 1822 of the Code ■of Civil Procedure, and that the trial judge did not err in refusing to hold that the defense of the short statute of limitations was established. Code Civil Proc. § 401;1 Titus v. Poole, 60 Hun, 1, 14 N. Y. Supp. 678; Wilder v. Ballou, 68 Hun, 118, 17 N. Y. Supp. 625; Hill v. Supervisors, 119 N. Y. 344, 23 N. E. Rep. 921. In the latter ■case, at page 347,119 N. Y., and page 921, 23 N. E. Rep., Judge Gray said: “Section 405 was enacted with reference to the enforcement of the civil remedies prescribed by the Code, and its application is to actions generally, and which the Code of Civil Procedure was enacted to regulate.” The defendant was absent from the state, “and resided out of the •state, when the cause of action accrued.” The proof and admissions upon the trial are abundant upon that subject. Wheeler v. Webster, 1 E. D. Smith, 1; Bennett v. Cook, 43 N. Y. 537. 3. We think no error was committed in rejecting the declaration •of the deceased, which the defendant sought to prove by the witness Parsball. It does not follow that, because her declarations were received in evidence against her executrix, the declarations of the de [59] ceased could be used In her own behalf. The opinion delivered at special term, by PARKER, J., properly disposes of the questions involved in the case. Judgment and order affirmed, with costs. PARKER, J., not sitting. Footnotes [1] Code Civil Proc. § 401, provides as follows: “If, when a cause of action ■accrues against a person, he is without the state, the action may be commenced within the time limited therefor, after his return into the state. If, after a cause of action has accrued against a person, he departs from and resides without the state, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited for the commencement of the action,” etc.