Perry v. Ellis

Cooper, C. J., delivered the opinion of the court. Neither the payment of the annual interest on the debt nor the payment of a part of the principal is sufficient under our statute to withdraw it from the operation of the statute of limitations. It is true that under the act of 9 Geo. IV (Lord Tenterden’s act) it was held that a part payment was sufficient evidence of a continued recognition of or new promise to pay a debt which would otherwise have been barred, but this was because the words of that statute were that “ no acknowledgment or promise by words only shall- be deemed sufficient evidence of a new or continuous contract, etc., unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby.” Our statute is that “ no acknowledgment or promise ” shall be evidence, etc,, unless it be by or in some writing, etc.; and, therefore, whether the acknowledgment or promise be by words only or in any other manner it is invalid unless in writing. Nor is the bar of the statute avoided by reason of the alleged verbal contract by which the parties on a sufficient consideration [719] agreed to extend the time for the payment of the note, even though by the contract the complainant placed it out of his power to sue ; for where the acknowledgment or promise is required to be in writing, a contract having the same effect must also be in writing. Hodgdon v. Chase, 29 Maine 47. The fact that one of the heirs-at-law of the debtor was a nonresident of this State during much of the time during which the statute was running does not so modify its effect as to continue the liability of his interest in the land to sale. The absence of this person did not suspend the operation of the statute on the note, on which an action must have been brought, if at all, against the administrator of the debtor; and all action on the note being barred, so also is all right to go against the land, which stood • as a mere security for the note. The form of the plea by which the defense is interposed is not subject to the objections urged. The plea is sufficient in form, for if there was no promise made within six years and four months it is evident there could not have been such promise within six years and two months. The complainants had notice of what statute was relied on, and that was sufficient. Nothing appears on the record by reason of which the rule of estoppel can be applied to the defendant. She was under no legal obligation to pay the debt or the interest thereon, and all that appears is, that in consideration of payments of the interest from year to year by her, the complainant agreed not to foreclose the mortgage until a certain time, within which time the debt became barred. If it be conceded that the money loaned belonged to Mrs. Perry and not to her husband, no different result than that which has been reached would follow. If it was Mrs. Perry’s money she, or since her death her representatives, might have proceeded to collect it as long as it was collectible. But an enforceable demand cannot be created where none exists, in order that the wrong done to the wife by the husband may be remedied. Neither Beauchamp nor his representatives knew that Mrs. Perry had or claimed any [720] interest in the fund. It was loaned and borrowed as the money of Perry; the note was payable to him, and in the absence of any steps by the wife to collect it, it remained his until barred by the statute, and being barred as to him it was barred as to the wife and her distributees. The rule that though the trustee is barred by limitations, the beneficiary, if under disability, is protected, has never been recognized except in cases where the relationship of trustee and cestui que trust was known to exist. The cases of Bacon v. Gray, 23 Miss. 144 ; Fearn v. Shirley, 31 Miss. 304 ; Pearson v. McMullin, 37 Miss. 609 ; Anding v. Davis, 38 Miss. 598 ; Pittman v. McClellan, 55 Miss. 299; and Eckford v. Evans, 56 Miss. 24, were all cases in which the character of the trustee was known. Even the rule recognized in those cases has been by statute abolished (Code of 1880, § 2694), and though the bar of this statute would not have attached to this cause of action if it existed, we are unwilling to extend the operation of the rule, abolished as to the future, to cases to which it has never been applied. The decree is affirmed.