Grimball v. Mastin

OLOPTON, J. -A legal representative can not, without express power, by any act or contract, create a charge or liability against the estate he represents; nor can he, by payment, promise, or admission, suspend the operation of the statute of limitations, or remove its bar, so as to keep alive or revive a charge on lands descended or devised; nor waive, or in any manner displace, the bar of the statute of non-claim. These general propositions are not controverted. The contestation is as to their applicability to those defendants who joined in the execution of the mortgage, and to the aspect of the bill wherein it seeks to enforce thelien on their interests in the mortgaged lands. It may be regarded as settled, that a bill in equity, for the enforcement of a claim against the estate of a decedent, is subject to demurrer, if the claim is prima facie within the bar of the statute of non-claim, and there is an omission to aver its presentation within the time prescribed by the statute, or sufficient cause for excepting it from the operation of the statute. — Fretwell v. McLemore, 52 Ala. 92; Foster v. Holland, 56 Ala. 474; Williams v. Auerbach, 57 Ala. 90. An admission' of the personal representative may be evidence tending to show presentation ; but an averment of the admission — of evidence — is not the averment of the distinct fact of presentation of the claim. An explicit and positive statement of the fact, on which a material issue may be formed, is required. The bill fails to aver the presentment of the claim against the estate of the testator, or any cause for excepting it from the operation of the statute; and is defective as to the defendants who did not join in the mortgage. The rule applies only when the bill is brought to condemn to the satisfaction of the demand assets in-the hands of the legal representative for administration, or .lands descended or devised. When the purpose of the bill is to enforce a subsequent promise or contract of the devisees or heirs, founded on the validity of a claim against their testator or intestate, and a lien created by them as security for its performance, the bar of the statute of non-claim comes collaterally into question, and an averment of a presentation of the claim is net requisite. In such case, .the question of the bar of the claim by either the statute of limitations, or of non-claim, is important only as the claim may enter into and constitute the consideration of the subsequent promise or contract. Against a bill to foreclose a mortgage, any defense, other than the statute of limitations, may be set up, which will avail [560] in an action at law on the debt. If the defense be a want of consideration, the recitals of the mortgage are open to inquiry, and parol evidence is admissible. When the bill and mortgage are silent as to the particular consideration, the defense must be made by plea or answer; but, when the want of consideration appears from the bill, either by the averments proper, or by the recitals of the mortgage, it having been made an exhibit, the objection may be taken advantage of by demurrer, or motion to dismiss for want of equity.- The mortgage was executed by the executors and some of the devisees, and recites, substantially, that their testator was, at the time of his death, indebted as surety for Michael Erskine, and had taken a mortgage on lands in Texas for his indemnity ; that, in order to foreclose the mortgage, it w.as necessary to furnish evidence of the payment of the debt, and for this purpose one of the executors and Donegan, who was a co-surety with the testator, gave their note for the debt; that the mortgage on the lands in Texas was foreclosed, and the estate of the testator received the benefit thereof; and that the mortgagors desired to secure the payment of the debt, as the then trustee of the complainant’s intestate had been required, by the order of the Chancery Court, to have it secured. The mortgage recites the justness of the debt, acknowledges the liability of the testator’s estate, and the mortgagors’ promise to pay the same,' — the devisees limiting their liability to the extent of their interests in the estate. The question, on this demurrer, is, does it appear from these recitals that the mortgage is unsupported by a sufficient consideration. In the matter of the presentation of claims, the executor represents the whole estate; and his acknowledgment that a claim was presented within the time required by statute is evidence of the fact, which is not impaired by his subsequent resignation. — Starke v. Keenan, 5 Ala. 590. The admission is of equal value as evidence, whether made before or after the expiration of the time for presentment, if he was the acting executor when it was made. In Pharis v. Leachman, 20 Ala. 662, it was said : “ The admissions of the administrator, Leaehman, made by him during the continuance of his representative character, although after the expiration of the eighteen months from the grant of letters, are evidence of the fact of presentation ; and if they are to be regarded as evidence of this fact against the administrator, they are equally evidence of the same fact against the other parties. The admissions of-the personal representative, which will take the debt out of the statute of limitations, do not bind the heir; for the reason, that the one represents the personal, and the other the real estate; and the admission of the administrator, operating only on the estate [561] which he represents, is as to the heir an act inter alios. But, in relation to the presentation of claims, the administrator represents the whose estate.” It is true, there is no direct admission, or acknowledgment, that the claim was presented ; but the recitals of the mortgage contain admissions that the demand is a subsisting debt, and acknowledge the present liability of the estate. These admissions are untrue, if the debt was barred by the statute of non-claim, or were made in ignorance of the operation of the statute; for by the bar it was extinguished. We are not authorized, on demurrer, to presume either of these alternatives. We must treat the admissions as true; and so considering them, must regard the debt as an existing and enforceable liability of the estate, so far as its validity is affected by the statute of non-claim. To destroy its efficacy, as an element of consideration for the subsequent promise, the claim must have been barred; and on demurrer for want of consideration, this fact should appear from the bill, at least by reasonable implication. No such implication can arise, in opposition to admissions inconsistent with its existence; and no presumption in favor of a want of consideration will be indulged, against the positive recitals of the mortgage. We do'notmean to intimate that the admissions are conclusive, or any opinion as to the effect on the sufficiency of the consideration of the mortgage, if the claim was reaily barred. All we decide is, that it not appearing that the debt was within the bar of the statute, the want of consideration, so far as it rests on the extinguishment of the claim, does not appear from the bill. With respect to the bar of the statute of limitations, the admissions do not have the same operation. No act, promise, or acknowledgment, is sufficient to remove the bar of the statute, or is evidence of a new continuing contract, except a partial payment made upon the contract, by the party sought to be charged, before the bar is complete, or an unconditional promise in writing, signed by the party to be charged thereby. — Code, § 3240. The bill does not aver, nor do the recitals of the mortgage contain, any admission of a partial payment before the bar was complete, or of any promise in writing previous to the execution of the mortgage, made or signed by the devisees. The bar of the statute of limitations does not extinguish the debt, only the remedy. The admissions of the mortgage are not irreconcilable with the existence of such bar. A debt may be barred by limitation, and still be, in the larger legal sense, a subsisting debt. But, a claim barred by the statute of limitations may be a sufficient consideration for a promise to pay it, if such promise be expressed as required by statute. In 1 Pars, on Contracts, 434, the rule is stated as follows : “’A moral obligation to pay [562] money, or to perform a duty, is a good consideration for a promise to do so, when there was originally an obligation to pay the money, or to do the duty, which was enforceable at law but for the interference of some rule of law. Thus, a promise to pay a debt contracted during infancy, or barred by the statute of limitations, or bankruptcy, is good, without other consideration than the previous legal obligation.” A mere moral obligation is not sufficient — there must have been a valuable consideration creating a pre-existing duty or obligation, barred by some positive rule of law.— Vance v. Wells, 6 Ala. 737; Turlington v. Slaughter, 54 Ala. 195 ; Wolffe v. Eberlin, 71 Ala. 99. It is not necessary that there should have been a prior legal obligation on the promisor, which could have been enforced against him at law. In Vance v. Wells, 8 Ala. 399, it was held, that a note signed by a married woman, who had a separate estate, for goods furnished, created a moral obligation to pay the debt, which could be enforced at law, upon her subsequent promise after coverture ceased. The debt due by the testator was a statutory charge on the lands devised, and was enforceable, in a proper case, by proper legal proceedings. The effect of the statute is to bind the lands for the payment of all debts, to the same extent that debts by specialty bound real assets in England. — Lightfoot v. Lightfoot, 27 Ala. 351. Taking an estate subject to a debt or charge, is a sufficient consideration for a promise to pay the debt. When the devisees took the devised lands, they took them subject to the debts of the testator. There was created a moral obligation to pay the debt due by the testator, and a charge on the lands for its payment, which was enforceable before the remedy was barred bv the statute of limitations. Had the devisees made a promise in writing to pay the debt, and executed a mortgage to secure its performance, before the bar of the statute was complete, there would have been no question of the sufficiency of the consideration. The statute of limitations is a defense personal to them, which they may set up or waive. By the execution of the mortgage, the defense was waived. When there is a waiver of the bar, the mortgage has the same force and effect as if it had been executed before the bar was complete. In so holding, we have assumed as true the averment of the bill that the note of Mastín and Donegan was given as collateral security for, and not in payment of the debt. In Bolling v. Munchus, 65 Ala. 558, it was observed : “ We may pass over all other considerations recited in the mortgage, than that of one dollar, the receipt of which is acknowledged by the mortgagor. It is an elementary principle of the law of contracts, applicable to every form of contracts, and in all [563] courts, that if a consideration is valuable, it need not be adequate. There can be no inquiry into, and no adjustment of the value of the consideration, in the absence of duress, or of fraud, or of some confidential relation existing between the parties. . . . The law is satisfied, whenever there is a valuable consideration, supporting an executory contract the promisor is required to perform. And if there be no fraud, or imposition, the least consideration will support a contract deliberately made, with full knowledge of all the circumstances.” . In support of this, Lawrence v. McCalmont, 2 How. 426, is cited, where it was held that an expressed consideration of one dollar paid was sufficient to support a guaranty of £10,000. There can be no doubt that any valuable consideration, however small, will support an executory contract; but it must be a consideration really paid, or agreed to be paid, not nominal or fictitious — understood by the parties to be the consideration, or a part. The mortgage recites a consideration of “ the sum of ten dollars to us Í71 hand paid” and acknowledges its receipt. Prima fade, the recital shows a valuable and real consideration, and its actual payment. In the absence of opposing proof, the consideration would be held sufficient to support the mortgage, and we must so hold on demurrer for want of consideration. The bill is inartificially drawn — not sufficiently certain and explicit in some averments, and defective in some other respects. These may be remedied by amendment. "We have considered only the causes of demurrer assigned. It results, that the demurrer should have been sustained, as to the defendants who did not join in the mortgage, and overruled as to the others. Reversed and remanded.