De Freest v. Warner

Ingalls, J.: It is only necessary to consider one question in deciding this action, which is whether the plaintiff’s cause of action has been barred-by the statute of limitations? The impression which I [96] received at the trial, that the determination of such question must depend upon the effect to be given to the provision contained in the deed executed by Michael Warner to Samuel S. Warner, Michael H. Warner and Albert Warner, on the 2d day of April, 1875, in regard to the payment of the indebtedness in question, has been confirmed by reflection. The clause in the deed is as follows : “ The aforesaid piece or parceTof land is this day sold and conveyed by the said Michael Warner to the said Samuel S. Warner, Michael H. Warner and Albert Warner, subject to the following amounts due by me to the parties hereafter specified, which forms a part of the consideration above expressed, and which I charge the said estate above conveyed with the payment thereof; and which said several amounts together with the interest, the said parties of the second part assume and agree to pay to Daniel De' Freest, about $600; to Mrs. De Freest, about $400, together with the legal interest thereon.” The deed was accepted by the grantees. The fact that the demands which are sought to be recovered in this action are the same which are specified in the clause of the deed above set out, is not controverted. Without encumbering the consideration of this question with a history of the litigation in regard to such conveyance, and abstaining from a discussion of the numerous decisions which have been cited by the counsel, and others which I have encountered in examining this case, I will, as briefly as possible, state the result which I have reached, and the process by which it has been attained. The Code of Civil Procedure (§ 395), provides as follows: “ An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.” The Code of Procedure (§110), was to the same effect. The acknowledgment or promise of Michael Warner, in order to be available to the plaintiff, must appear to have been made by Michael Warner to the plaintiff or to the grantees in the deed, for his benefit, and with the intention and expectation, on the part of said Michael Warner, that it would be ■communicated to . the plaintiff, and that such deed was delivered to and accepted by the grantees under circumstances which would fairly warrant the [97] supposition and belief that the 'provision of the deed for the benefit of the plaintiff would be communicated to him byvsuch grantees. (Bloodgood v. Bruen, 8 N. Y., 362; Wakeman v. Sherman, 9 id., 86.) In the last case Judge Gardner, at page 91, remarks: “But in the second place, the promise was not made to the plaintiff or his agent, but to a stranger who was not authorized by the defendant to communicate with the plaintiff in any manner on his account.” Again : “ The promise must be made to the creditor, or some one acting for him, or, if made to a third person, must be calculated and intended to influence the action of the creditor.” It can hardly be doubted but that Michael Warner intended and expected that-the plaintiff would avail himself of the benefit of the provision incorporated in the deed for his benefit, and that .his action would be influenced accordingly. (See, also, Winterton v. Winterton, 7 Hun, 230; Morrow v. Morrow, 12 id., 386; Ross v. Ross, 6 id., 80.) The provision of the Code referred to has not changed the rule in regard to what will be required to constitute the acknowledgment of a debt sufficient to take the same out of the operation of the statute of limitations, but merely requires that such sufficient acknowledgment or promise shall be in writing,.simply changing the character or grade of the -evidence by which the fact must be established.' In Shapley v. Abbott (42 N. Y., 447) Judge Earl remarks: “ The only effect of this section is to require that to be proved by writing which could before be proved by parol.” As to what will constitute a sufficient acknowledgment or promise to avoid the statute, the learned judge remarks, at page 446 : “ It would only have been necessary for the plaintiff to show an unconditional acknowledgment of the existence of the debt, and this could have been shown by proof of a direct acknowledgment, or by proof of facts from which it could be properly inferred.” In Van Keuren v. Parmelee (1 N. Y., 531) Judge Bronson says: “ There must, at the least, be a plain admission that the debt is due, and that the party is willing to pay it.” (The First National Bank of Utica v. Ballou, 49 N. Y., 155; Smith v. Ryan, 66 id., 352; McNamee v. Tenny, 41 Barb., 495; Anderson v. Sibley, 15 N. Y. Week. Dig., 382.) The deed executed by Michael Warner contained a clear acknowledgment of his indebtedness to the plaintiff, coupled with a provision for its payment. The real estate eon [98] veyed was expressly charged with such debt and the grantees expressly agreed to pay the same. Regarding the entire arrangement, I cannot doubt but that Michael Warner not only intended to acknowledge the indebtedness to the plaintiff and to provide for .its payment, but also desired aiid expected that the plaintiff would, be informed thereof by the grantees in such deed. The deed was recorded in the clerk’s office of the county of Rensselaer on the 5th day of April, 1875, three days after its date. Michael Warner undertook to provide for the payment of the plaintiff’s claim in a particular manner, and we mufet assume that he understood and intended the legal effect of the acknowledgment which he thus made. Certainly there is no evidence that he attempted to restrict his liability to the plaintiff. On the contrary, the plaintiff is presented in the light of a favored creditor. There is nothing in the case to show but that the indebtedness of Michael Warner to the plaintiff was voluntary and in all respects just. The legal effect of this transaction seems to me quite unlike that of an ordinary voluntary assignment for the benefit of creditors, and quite distinguishable from a case where a debt is merely included in the inventory of a debtor in bankruptcy., for the reason, among others, that this seems to savor more of a personal transaction. The plaintiff should have judgment in this action. Judgment affirmed at the General Term, on the opinion of Judge Ingalls, with costs. Present — Learned, P. J., BoARDMANand Bocees, JJ. So ordered.