Elliott v. Leake

Opinion of the court delivered by Edwards, Judge. This was an action of assumpsit, brought by Leake against Elliott. Pleas, non assumpsit and statute oflimi-tations, and issue on each. Eighteen or twenty years ago, Elliott and Leake resided in the State of Kentucky; and while there, and about that time, Elliott sold Leake twenty acres of land, for two hundred dollars. The contract was never reduced to writing. Leake paid Elliott the two hundred dollars, the price of the land. In 1834, Elliott admitted that he “had got from Leake two hundred dollars* for land in Kentucky-* and that he had never denied it.’* [209] 5SThat he had got two hundred dollars for ¡and sold to Lea ke in Ketu ucks ; that lie had never denied it was right.” “That the two hundred dollars were just-, hut that he did not receive the ten dollars. *’ And in an-othei conversation about the same time, Elliott said he “liad soft to Leake twenty acres at’ land, in Kentucky, for two hundred dollars; and that he had received the money.” Elliott said he ,was willing to make Leake such a deed as he had. That he had got irorn Leake two hundred dollars in consideration ol twenty acres, which he had sold to Leake* in Kentucky, eighteen or twenty years ago; and that there was no writing between them; and that he was then ready to make Leake a deed for said land, and liad always been ready to do so. Leake said he would take a general warranty deed. Elliott said he would make him such a deed as he had. The law of Kentucky, on the subject of paiol contracts as to land, and under which this contract was made, was introduced and read in evidence. By this law it is declared and enacted that parol contracts as to the sale of lands are null and void. Leake had verdict and judgment. Elliott moved fora new trial, an t the Court overruled the motion. The error assigned is.the refusal to grant a new trial. It is insisted by Mr. Anderson, for the appellant, that it is clear from the evidence that the demand sued on originated fifteen or sixteen years ago, b fore the institution of this suit. That there had not been, within ten years previous to the institution of the suit, any exptess promise to pay the sum demanded or any part ihereof; and that there has been no diieetand Unqualified admission ol'a previous subsisting debt, which the defendant is liable and willing to pay. In suppoit, he cites several authorities,dnd among others, Bell v. Morrison, 1 Peter, 351. It is insisted by Mr. Wright, for the appellee, that certain acknowledgments made by Elliott* take thisca-e out .of the statute of limitations. The contract of sale being void, Leake could maintain assumpsit for money had and received; and if brought, within five years, all the ♦vidence requisite to obtain judgment, would be the reception of the money on a parol contract. Ibrland. The law will imply the prorn.se to pay. This action is brought after five years, hut the evidence is exactly what would have sustuim d the action within die period of limitation. Does the law require stronger evidence to revive [210] an obligation than it does to create it? Mr. Wright seems to think not. To take a case there must be an acknowledgment that the debt remains unpaid. dint^ck'nowd-*0* edged that he had “got $200 from soldán Kentucky1’ — that “he had never denied «Wwere'just ” &e.; these aions, though not wlíí yet* court in refusing tó grant a new tm1, aftera tiff. ° It may not require stronger evidence to revive an action than it does to create it, but it certainly requires more evidence. The acknowledgment of the receipt of money, on a parol contract for lands, would support as-f°r money hada d received, if brought within the •period of limitation, but not so if brought after that period. The law would presume that the debt had been end the defendant would not be required to -show that he had discharged the debt. To make a case that can be taken out of the staiute, there must be an original debt barred by the statute, a subsequent acknowledgment of the original debt not barred by the statute, and an acknowledgment that the debt remains unpaid. The acknowledgment of tire debt, and that it remains unpaid, form the basis fora new action; and it is upon the ground that a new cause of action has been created that these cases are considered out of the operation of the statute. It is not necessary that the party should acknowledge his willingness to pay the debt; it is sufficient that he acknowlrdged that he owed the debt^and that it remains .unpaid. That evidence which will create an obligation will revive that obligation, if connected with evidence that the obligation has not been discharged. A principal ingredient in reviving a debt barred by the statute, is the evidence that it is still subsisting—Bell v. Morrison, and the cases there cited, 1 Peter’s R. 351. In this case, Elliott received from Leake, fifteen or twenty1 years ago, two hundred dollars, for no cunsideration. He has acknowledged the receipt of the said two hundred dollars, within the last five years. Here are two of the requisites necessary to take the case out of the statute. Does the third exist? Has he acknowledged that the two hundred dollars remain unpaid? Elliott sa>’s *ie Sot mone}b and “ /md never denied it” he had “got two hundred dollars, and had never de-ni¡¡¿ was right.” “ That the two hundred dollars were but-that he had never received the, ten dollars.’’ Do these expressions show that the two hunderd dollars ro-main unpaid? They were used by Elliott in a conversa-jn ^y[qch he expressed a wish to settle, the difficulty between himself and Leake, and in which he said he had ,got two hundred dollars from Leake, lor hind sold in Kentucky,. Thf|t lie was willing to make a deed for the land. Leake said lie would take a general warranty deed. Elliott replied he jyuuld make him a deed, such a one as he211 bad. “The t.wo hundred dollars were just, but he had never received the ten dollars.” Wiiy were they just? Because he had received them and gave no consid•eration for them. To whom were they just ? To Leake, •because he had received them from Leake, “but he had -never received the-ten dollars,” and therefore they were unjust. I am not very well satisfied that this evidence is of a character as clear and conclusive as should be required to show the continued liability of the party; yet it is far from being clear that it was insufficient to justify the jury in their finding. The court com rutted no error, then, in overruling the motion for a new trial. The judgment should be affirmed; and the other judges concurring, it is affirmed.