[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 364
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 365 The bill was filed August 16, 1845, to establish a debt against the estate of Thos. H. Smith, deceased.
The cause of action was a promissory note, made to the plaintiff's testator, by Thos. H. Smith, the deceased, and George W. Bruen in the name of the firm of T.S. Smith Son, dated the 21st June, 1828, for $10,000 and upwards, payable ninety days after date. The demand consequently *Page 366 matured on the 22d September, 1828. On the 23d of the same month, Thos. H. Smith died, leaving a will, and his copartner, George W. Bruen, his executor. According to the answer, the firm of Smith Son and Thos. H. Smith were insolvent at the time of the death of the latter. No proceedings were ever taken to collect the note, and G.W. Bruen became a bankrupt and obtained his certificate in August, 1841. Herman Bruen was appointed executor and qualified on the 19th July, 1847, in the place of George W. Bruen, who was removed from that office. The main question in the cause, is upon the statute of limitations, which Herman Bruen has set up in his answer in bar of the suit. Upon this subject the bill alleges, that George W. Bruen had on repeated occasions, and to divers persons since the date of the said note, admitted that the amount thereof, with interest, remained due and unpaid and promised to pay the same; "and that he did, especially, in an answer in chancery, to a bill there filed, in which James Iddings was complainant and the said George W. Bruen defendant, sworn to on the 18th June, 1842, allege and insist, that among the debts and claims outstanding against the firm of T.H. Smith Son, was a debt due by the firm to Thomas Bloodgood amounting to $20,000 and upwards, including interest." The object of this averment was, to avoid the objection to the cause of action arising from the lapse of time; an objection which could otherwise have been taken to the bill by way of demurrer. (19 Ves. 180; Story's Eq.Plead's, § 484; 7 Paige, 373.) To effect this object, the facts must be stated in the bill in substance, as definitely as in a replication to a plea of the statute of limitations at law, for which in equity the allegation is a substitute. (19 Vesey, 185; 2 Id. 84.) The general averment of repeated acknowledgments by George W. Bruen since the date of the note, amount therefore to nothing.
Time is of the essence of an admission which is put forth to avoid a bar by the statute, and to continue or revive a debt otherwise extinguished. The statements in *Page 367 this bill may have been made within a month of the date of the note, and if the declarations were uttered within ten years, they would furnish no evidence of an existing indebtedness at the commencement of the suit. The complainant must therefore rely upon the admission of George W. Bruen contained in his answer in the Iddings suit, which alone is specifically alleged in the bill.
There are several objections to the sufficiency of this acknowledgment to avoid the bar of the statute. In the first place, it was not made to the creditor, his agent, or any person representing him, but to a stranger, or creditor of George W. Bruen individually, seeking to collect his debt in equity.
"The acknowledgment," says Story, "to take a case out of the statute, must be made, not to a stranger, but to the creditor or some one acting for him, and upon which the creditor is to act or confide." (Story's Eq. Jur. § 1521 a) It is true that there are dicta to be found in England and in this country to the contrary.
In Mounstephen v. Brooke, (3 B. Ald. 141,) the leading case in England, the acknowledgment relied upon was contained in a contract of indemnity given by a person who was not a party to a bill of exchange, to one who was, to indemnify him against the payment. The presumption arising from the facts, would be that the indemnitor was the real debtor and not a stranger; at all events the creditor had an interest in and claim upon this very security given to the debtor, which under certain circumstances equity would enforce. In Clarke v. Hougham, (2 Barn. Cress. 149,) the promise was from a landlord to certify any mistake in receiving more from the tenant for taxes than was due. This was a promise to one tenant, in behalf of all, in relation to a subject in which each had an interest. These cases might be sustained perhaps upon their own peculiar circumstances without impugning the rule above adverted to. But the reasoning of judges had gone beyond *Page 368 the particular cases, and affirmed that the statute of limitations was only presumptive evidence of the payment of the debt, and that whenever it appeared by the acknowledgment of the party that it was not paid, the admission avoided the bar of the statute. (Clarke v. Hougham, supra, per Baily, J., and casesby him cited.) It follows from this principle, that it makes no difference whether the acknowledgment was accompanied by a promise, or a refusal to pay; (16 East. 420; 5 M. S. 75;) and so are the English cases. Now the statute does not speak of a presumption of payment or loss of vouchers. It declares that no action shall be commenced after the given period. The causes of the delay, (unless within the exceptions provided for by the law,) are immaterial. The immunity is absolute. Accordingly, since the courts have come to regard the statute as a law to be obeyed and not evaded, it has been held, that there must be apromise in order to revive the debt, and that this must be made by a person competent to contract. (11 Wheat. 309.) In other words, that there must be an express contract, or facts from which one may be implied. This I suppose to be the established law in this country. If a contract is necessary, there must be a contractor, and as a general rule, the promise must be made to the person to whom the debt is payable, which forms its consideration, and not to a stranger.
In the second place the admission was not voluntary. George W. Bruen was made a witness by Iddings, the trustee of his creditor, and compelled to testify. An admission obtained in this way, can not of itself be made the foundation of a new contract or promise. A mere acknowledgment of an indebtedness, is but evidence from which a promise to pay may be inferred. (1 LordRaymond, 389; 3 Ship. 362, and cases there cited.) Where it is unconditional, a court or a jury may infer a willingness to pay, or a promise to that effect, from it; because it would be difficult to assign any other reason for a voluntary *Page 369 admission of this sort. But where the debtor is placed upon the stand as a witness, nothing can be inferred from the acknowledgment, except an intention to declare the truth. We have seen that the statute of limitations when applicable, is something more than presumptive evidence by payment of the debt. It is a complete bar. No admission of the debtor will avoid the discharge, unless made under circumstances to indicate a willingness to pay. The true rule is given in Bell v.Morrison, (1 Peters R. 351.) "If," say the court, "there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such an acknowledgment ought to contain an unqualified and direct admission of a present subsisting debt, which the party is liable and willing to pay. If there be accompanying circumstances which repel the presumption of a promise or intention to pay, c., they ought not to go to the jury as evidence of a new promise." (Ib.p. 362.) The third objection is, that the admission was not made by George W. Bruen in his character of executor of the estate of Thomas H. Smith. This is not charged in the bill; and it appears by the abstract in the Iddings suit, that the plaintiff there sought to recover a debt due to Cowperthwaite, from Bruen, by showing that the firm of T.H. Smith Co., of which George W. Bruen was surviving partner, were the creditors of T. H Smith.
With the debts due from the firm, George W. Bruen as executor has no concern. His acknowledgment of the demand in question, was therefore, prima facie, in his character of surviving partner. But a surviving partner can not revive a debt against the copartnership so as to charge the estate or interest of the deceased copartner. This question must be considered at rest in this court, since the decision in Van Keuren v. Parmelee, 2Comst. 523; 1 Peters, 373.
But if we assume with the court below, that Bruen as executor of the estate of T.H. Smith admitted this demand, *Page 370 an admission in that character can not, it seems to me, in the nature of the case, amount to a contract which will bind the estate of the testator. It is no part of the duty of an executor, to subject the estate of his testator to a demand, from which it was by law exempt. If he can do it in any manner, it must at all events be by a positive contract. It has accordingly been held even in England, that there must be an express promise, and that all the executors must unite in it. (Williams on Executors, 1659; 2 B. C. 28; Ryan Moody, 416; 3 Shep. 360; 12Wheaton, 565; 7 Connecticut, 176.) This objection applies to all the testimony offered by the complainant. Indeed, the declarations proved by Ripley were not so strong as those made in the case in 3 Shep. The expression there was, "An arrangement will soon be made to pay the note. I calculate to pay it, and always calculated to pay it." In this case the executor said, in one conversation, that as "soon as he could get the propertyextricated from its embarrassments, he would pay that claim, either by giving Bloodgood some bonds and mortgages, or real estate, to balance the claim;" in the second, "that they had not been able to get their property in a condition to pay it, but thought they would be able to do so soon, and he would then pay the claim, and he should be glad to pay it, as it should have been paid long ago." Both statements were conditional, and were merely indicative of an intent to pay, not absolutely, but upon the contingency, that they could extricate the property from its embarrassments. And the first and strongest statement was clogged with a further condition as to the manner of payment, which was to be in bonds and mortgages, or real estate. The estate of Smith was not extricated from its embarrassments in 1850, when the decree in the Iddings suit was pronounced, as we may fairly infer, which was five years after the commencement of this suit. No trust was recited by the will of Thomas H. Smith, to which the ten years' limitation by our statute could apply. Upon this subject I *Page 371 agree with the learned judge who pronounced the opinion in the superior court, that the usual directions by the testator to pay his debts, were never held to create a technical trust, to which only the limitation above mentioned applies. Upon the whole, I think the decree of the superior court should be reversed and the bill dismissed.