Rowe v. Marchant

Lacy, L, delivered the opinion of the court. The bill was filed in this suit by the appellee against the appellants, as the administrators of Thomas B. Rowe, to collect certain debts claimed against the said estate by the plaintiff, — 178 — and to have a settlement of the estate in their hands for the benefit of the plaintiff and all other creditors who should come in on the usual terms. The answer denied the existence of any debts, admitting that the debts claimed once existed, but only as advancements, and alleging that they were barred by the statute of limitations. The case appears to be as follows: Marchant held the bonds of Rowe as folloAvs: Bond dated April 6,1854, for the sum of $1,214 38; another bond of $500, dated October 2,1854; $653 92, January 10,1856; and $1,200, due by bond dated September 17, 1849; and $1,000, due by bond dated 24th of March, 1880, and payable on demand; and $1,000, due by bond dated 6th of October, 1880. RoAAre aauis about 60 years of age and the son-inJaw of Marchant, avIio Avas about 85 years of age. RoAve AAras an inmate of Marchant’s family, and an intimate friend. Marchant Avas taken sick, and his disease developed until his life Avas dispaired of, vdion RoAve, knoAving of the AAdiereabouts of these bonds, got them out from among Marchant’s papers, and destroyed them, thinking Marchant Avould certainly die. But Marchant got Avell, and missed his bonds, and subsequently Roive confessed the foregoing, and offered to reneAV them, and a difficulty grew up between them because of the destruction of these bonds by RoAve. Mr. W. "W. WoodAAard, a laAAyer and mutual friend,' settled the difficulty as folloAAs: Marchant had preserved in his memorandum-book a list of these bonds in dispute, thus: “ Amount of bond due 6th of April, 1854, $1,214 37; amount of bond due 2d of October, 1854, $500; amount of bond d\ie 1st January, 1856, $653 92; amount of bond due 17th September, 1849, $1,200.” Under this AAas Avritten by RoAve : “June 14th, 1882. The four entries above AA-ritten, of dates and amounts of money due by me to Thomas Marchant, are correct. These bonds were in my possession, and AAdiile in my possession destroyed by me without the knowledge of the said Thomas Marchant, but Avere never paid, by me.—T. B. Roave. Witness: W. W. Woodavard.” And then Thomas Marchant — 179 — gave to Rowe the following paper: “June 14tli, 1882.—I, Thomas Marchant, of Gloucester county, in the state of Virginia, do hereby release and quit claim to all interest, due me by Thomas B. Rowe on four bonds—to wit, a bond' for $1,214 38, dated April 6th, 1854; a bond for $653 92, dated 1st of January, 1856; and a bond for $500, dated 2d October, 1854; and a bond for $1,200, dated September 7tli, 1849—it being my intention only to charge him with the principal sums of said bonds in my will. Thos. Marchant.” These papers, constituting the settlement, being mutually exchanged, civil relations wore restored between the parties. Rowe died, and in 1885, Marchant still living, this suit was brought by him as stated. The defence is, first, that these bonds were given by Mar-chant to Rowe as advancements; secondly, that they are barred by the statute of limitations. As to the first, it is not pretended that any possession of these bonds ever passed with the alleged promise to give them by chai’ging them in the will. They were xmlawfully taken by Rowe, while Marchanj:. was lying helpless, and supposed to be dying; and Rowe excuses himself for this act, when admonished of its enormity, by saying that Mr. Marchant had promised to give him these bonds in his will, and he knew he did not have a will, and thought he was dying, and did not think it was wrong. This was condoned upon such restitution as has been mentioned. "Whereupon Marchant gave him the accrued interest—a large sum—and announced his purpose of not charging him in his will with any interest—“ only with the principal of these bonds.” This may have been intended by Marchant as a promise to give him by his will all interest which might accrue, but, however that was, the will was never made, and Marchant, living, demands payment of the bonds alleged to have been given to Rowe. That there was no valid and binding gift is clear. Our statute provides that no gift of any goods and chattels shall be — 180 — valid, unless actual possession shall come to and remain with the donee or some persons claiming under him. And, if the donor and donee reside together at the time of the gift, possession at the place of their residence shall not be sufficient possession, within the meaning of this section. Code 1873, ch. 112, sec. 1; Code 1887, sec. 2414. As to what constitutes a sufficient delivery of possession, I refer to the opinion of Lewis, P., in the late case of Yancey v. Field, in 85 Va., where the subject is fully treated. This case has been so recently decided here, the opinion having been rendered February 14th of the present year, that .it is unnecessary again to discuss the question. In this case there was really no gift of these bonds, but a gift of accrued interest, and a distiuct refusal to give the bonds. There was an intention expressed to give the interest in the will, but the will has not been made, and, by the mutual understanding of the parties, the whole subject was retained under the control of the supposed donor. There is no valid ground upon which Marchant can be claimed to have given these bonds to Rowe. Rowe took possession of them without authority, while Marchant was supposed to be dying, but this act Marchant repudiated when he got well, and compelled from Rowe all the restitution he desired. As to the second contention, that the bonds are barred by the statute of limitation, we will observe that the acknowledgment of Rowe is claimed to have taken these bonds -out of the bar of the statute. By the eighth section of chapter 146 of the Code of 1873, 2Ó years is the limitation prescribed as to these bonds, and this period has elapsed, unless the statute is saved by the acknowledgment of June 14, 1882. As to this, the tenth section of the same chapter provides: “ If any person, against whom the right shall have so accrued on an award, or on any such contract [referring to the eighth section], shall, by writing signed by him or his agent, promise payment of money on such award or contract, the person to whom the right shall have „ so accrued, may maintain an action for the — 181 — money so promised, Avithin such number of years after the said promise as it might originally haAe been maintained within, upon the aAvard or contract, and the plaintiff may either sue on such promise or on the original cause of action ; and, in the latter, case, in ansAver to a plea under the eighth section, may, by Avay of replication, state such promise, and that such action aauis brought Avithin the said number of years thereafter; but no promise, except by Avriting as aforesaid, shall take any case out of the operation of the said eighth section, or deprive any party of the benefit thereof. An acknoAvledgment in Avriting as aforesaid, from wljich a promise of payment may be implied, shall be deemed to be such promise in the meaning of this section." The acknowledgment in this case is written under a statement of the bonds, dates, and amounts, and is that “ the four entries above written, of dates and amounts of money due by me to Thomas Marehant, are correct," and that the bonds themselves, by Avhich this AAas evidenced, had been destroyed by him, without the knoAA'ledge of Thomas Marehant, and that the said amounts had never'been paid. At the same time he received a gift of about $4,000 of interest from Marehant. That the intention of the parties Avas mutually to set up these lost bonds, and to promise to pay them, cannot be doubted. The actual Avriting is a statement of. a particular debt, its date, and its amount, and an acknoAvledgment by RoAve that this particular amount of money is due by him to Marehant. This was such an acknowledgment as implies a promise to pay. There could have been no other object in the Avriting. It is a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor. As was said by Judge Parker in Aylett v. Robinson, 9 Leigh, 45: “The promise or acknoAvledgment, to take the case out of the statute, must be an express promise, or such an acknowledgment of a balance due, unaccompanied by reservations or conditions." By Chief Justice Marshall in Clementson v. Williams, 8 Cranch, — 182 — 72: ‘‘The acknowledgment must go to the fact that it is still due.” To revive a debt by a new promise, the new promise may be either express or implied, and an implied promise is created by a clear and unqualified acknowledgment of the debt. Ang. Lim., 240. This court, in a late case, reported in 32 Gratt., 807 (Dinguid v. Schoolfield), said: “ There is no doubt the plaintiff, to maintain the issue on his part, was bound to prove the promise alleged in his replication (the new promise). lie was not required to prove an express promise. It was sufficient for him, under the statute, to establish an acknowledgment in writing, from which a promise in writing might be implied. * * * Such acknowledgment, to be effectual, must not consist of equivocal, vague, and indeterminate expressions, but ought to contain an unqualified and direct admission of a previous subsistory debt which the party is liable for and willing-to pay.” Bell v. Morrison, 1 Pet., 351, 362. As was said by Tindal, C. J., in Linsell v. Bonsor, 2 Bing. N. C., 241; 29 E. C. L., 519: “ A distinct and unqualified acknowledgment would have the same effect as a promise, because from such an acknowledgment the law implies a promise to pay.” If there be an unequivocal admission that the debt is still due and unpaid, unaccompanied by any expression, declaration, or qualification indicative of an intention not to pay, the state of facts out of which the law implies a promise, is then present, and the party is bound by it. Johnson, J., in Young v. Monpoey, 2 Bailey, 278. See Bangs v. Hall, 2 Pick., 368; Moore v. Bank, 6 Pet., 86; Bell v. Morrison, supra; Bell v. Crawford, 8 Gratt., 110, and airthorities there cited; Fort Scott v. Hickman, 112 U. S., 150, 5 Sup. Ct. Rep., 56; 1 Greenl. Ev., 286, 290; Walsh v. Mayer, 111 U. S., 31, 4 Sup. Ct. Rep., 260; Shepherd v. Thompson, 122 U. S., 231, 7 Sup. Ct. Rep., 1229; Bailey v. Crane, 21 Pick., 323; Russell v. Copp, 5 N. H., 154; Head v. Manner, 5 J. J. Marsh, 255; Peebles v. Mason, 2 Dev., 367; Sutton v. Burruss, 9 Leigh, 381. — 183 — The decree of the circuit, court of Gloucester county, of March 11, 1887, is in accordance with the foregoing well-settled principles, and will be affirmed. There is no error in the assigned error of the counsel for the appellee, because of the failure of the court to include in its decree the $700 91 reported in the third alternate statement. This amount is reported in •favor of J. R. Marchant, and not of Thomas Marchant, and was therefore -properly excluded from the amount decreed in favor of the latter. Upon the whole case we think there is no error in the decree complained of, and the same must be affirmed.