The opinion of the court was delivered by
Isham J.In this action of assumpsit, the defendant has pleaded the general issue, the statute of limitations, and a discharge in bankruptcy. To- each of which pleas, the plaintiff has replied, a subsequent promise by the defendant to pay the debt, upon which issue is taken.
The plaintiff’s claim is for hay sold by him, as sheriff, in 1841, on execution in favor of Albert Eankin, against Thomas Knox; but the execution, in reality, was the property of Calvin Morrill. The sale and purchase of the hay is distinctly proved in the case. To prove the sale, the return of the officer on the execution is not indispensible. The title of the purchaser does not depend upon *531the return of the officer, but upon the fact of the sale and purchase, which may be proved by parol. It has long been settled, that such testimony is admissible, and that “the validity of the sale does not depend upon any thing subsequent to the sale; and if he makes no return, the sale may be proved by parol.” The moment the sale is made, the title vests ; the judgment to the amount of the sale is satisfied, and the title cannot be defeated by any neglect of the officer. Gates v. Gains, 10 Vt. 346. Bates v. Carter, 5 Vt. 602.
We think the defendant’s promise is sufficient to avoid the statute of limitations, and the discharge in bankruptcy. It is stated in the case, that in 1846, Mr. Morrill, for whose benefit the property was sold, called upon the defendant, with a statement of the hay purchased by him, and on that occasion, he first said the debt was paid, but finally he promised Mr. Morrill, that if he had not paid for the hay, he would pay for it. It is not now pretended, that the hay was ever paid for. There was no denial of the original indebtedness, or the honesty of the claim, or his obligations to pay for it if it had not been paid ; and when it is now admitted that the claim has never been paid, the promise is left absolute in its character. If the defendant had denied the justness of the debt, and insisted that he was under no obligation to pay it, the defence would be available, as held in Carruth v. Paige, 22 Vt. 180, and Phelps v. Stewart,, 12 Vt. 256: but when, as in this case, that is not denied, and there is a promise to pay the debt, if it has not been paid, and it appears never to have been paid, the promise is binding; for the qualification or condition of the promise is removed by the act of the party himself. The case of Paddock v. Colby, 18 Vt. 485, is very applicable. In that case, it was held, that “ if a debtor denies his indebtedness, yet if he express a willingness to settle it, if established, and the indebtedness is proved to have existed, the admission is sufficient to take the case out of the statute of limitations.” Dean v. Pitts, 10 Johns. 35, Mosher v. Hubbard, 13 Johns. 510.
In the notes to Smith’s Leading Cases, 1 Vol. 628, it is said, that, “ no rule of law is better settled than that a conditional promise for the payment of money, becomes absolute as soon as the condition is fulfilled, and may be declared on, as if it had never existed.” It is therefore immaterial, whether the revival of a debt *532barred by statute, be absolute or conditional in the first instance, for it becomes absolute as soon as the condition is performed. If the defendant had said, “ I will pay the debt on condition I have not,” the burthen of proof would rest on the plaintiff to show the debt unpaid ; and on such proof being given, the authorities are clear, that the promise is binding; and certainly it is none the less clear’, when the defendant promises to pay the debt, if he has not paid it, and now admits that the debt has not been paid.
If this is the legal effect of that promise, it is also sufficient to avoid the discharge in bankruptcy. The mere acknowledgment, that the debt is due and unpaid, may not be sufficient for that purpose ; nor will part payment create a legal obligation to pay the balance ; but a promise to the party, or his agent, to pay the debt, with an intent to confirm the original demand, and waive his discharge under his certificate, has always been held sufficient, If the defendant in this case had said that the 'debt was just, but that it was outlawed, and that he was likewise discharged by his certificate, the debt could not have been enforced ; but when, with these defences in his hands, he says- he will pay the claim,, if it has not been paid, and it is made to appear that it has never been paid, it is a manifest intent to confirm the original demand, and to waive the advantages derived from his certificate, and the statute of limitations. He does not rely upon those grounds of defence, but makes an absolute promise to pay the debt, if it has not been paid, and now concedes that such payment was never made. The promise is express, and becomes absolute and binding.
The promises are not assignable, and therefore must be made to the party or his agent. When the sheriff, after the sale, handed Mr. Morrill the accounts of the sale, and requested him to collect and receive the payment thereon, it authorized him to act for the sheriff in that matter ; and while he was soliciting payment of the claims, at that time for his use, he was also acting for the benefit of the officer in whom the legal interest of the contract rested. Under these circumstances, the promise inures for the benefit of the plaintiff, and upon which, he is entitled to recover. The conversation had in 1850, has no particular effect in the case, except as showing, by the acknowledgment of the defendant, that he had never paid the debt. This refusal at that time to pay the claim, ■will have no effect on his previous promise.
The judgment must be reversed and the case remanded.