Haythorn v. Cooper

[339] The opinion of the court was delivered by Cunningham, J.: • This was an action on a note and to foreclose a mortgage securing the same. The defense was based upon the statute of limitations. To remove the bar, the following letter was relied on by the plaintiff: “Belle Plains, Kan., September 13, 1894. “The Chester County Banking and Trust Co., West Chester,Pa.: “Gentlemen — I understand you own a mortgage of $3500 made by me and secured by lots 60, 62, and 64, in Mead’s addition to Wichita. This property, which cost me $15,500, is now said to be worth not over $1500. It is going to rack for want of good tenants, and will not rent for half enough to pay taxes, or has not in the last two years. If the property could be improved at a cost of about $1500, it would comfnand a good tenant at about $35 per month, or perhaps $40. But as I have no means to do this, I thought you might be willing to sell your mortgage, provided I could interest some of my friends to buy it, or you might be willing to advance enough money to improve the property, or suggest some way that both of us might be saved such a disastrous loss. I would be pleased to hear from you, suggesting any plan to put this into shape. Mbs. M. B. Haythobn.” In order to stay the running, or remove the bar, of the statute of limitations, there must be “an acknowledgment of an existing liability, debt, or claim, signed by the party to be charged thereby.” (Civil Code, §24; Gen. Stat. 1901, §4452.) Does this writing satisfy this requirement? We hold that it does not. In the case of Hanson v. Towle, Adm’r, 19 Kan. 273, the court said: “A mere reference to the indebtedness, although consistent with its validity, and implying no disposition to question such validity, or a mere suggestion of some action concerning it, is not such an acknowl [340] edgment as is contemplated in section 24 of the code of civil procedure as sufficient to suspend the running of the statute of limitations. There must be an unqualified and direct admission of a present subsisting debt on which the party is liable.” li This case has been followed in Gregg v. Barnes, 32 Kan. 310, 4 Pac. 276, and cited in several other cases'] decided by this court. We do not understand by any of these decisions that it is necessary that the acknowledgment should be in explicit and unequivocal words. Nor dó we understand that the terms and safeguards of the statute may be frittered away by any far-fetched or problematical deductions in explanation of the writing claimed to be an acknowledgment. Statutes of limitation are statutes of repose. One seeking to evade their result must bring himself - within the terms of the statute which raises the bar. A writing which is no more consistent with the claim-that an acknowledgment was intended than with the claim that it was not is not sufficient to remove the bar. It must be “an unqualified and direct admission of a present subsisting debt on which the party is liable.” Tested by this rule, we see little ground for the contention that the writing in issue is sufficient. It admits that a certain mortgage was made by the writer, but it is only by a very remote inference that any obligation now exists thereon. The ■letter would be as explainable under the hypothesis that the writer was denying the liability as with one that she was admitting it. We are cited to the cases of Elder v. Dyer, 26 Kan. 604, 40 Am. Rep. 320, and Pracht v. McNee, 40 Kan. 1, 18 Pac. 925, as authority for holding the letter in the case at bar sufficient to stay the statute. We think these cases both go to the extreme verge in their conclusions, but it will be noted that neither of them at [341] tacks the rule laid down in Hanson v. Towle, supra. In a large degree, every case must stand by itself, but in the construction of the language used in any case we must not lose sight of the explicit terms of the statute, and the sharp and unequivocal language of the leading cases which we have cited. As the court below held that there was enough in. the letter quoted above to stay the statute of limitations, and as in this we conclude that it erred, the judgment will be reversed, and the cause remanded for further proceedings. Johnston, Greene, Ellis, JJ., concurring.