95 Ala. 344 | Ala. | 1891
The object of this suit is to collect a bill-single, or note under seal, executed September 23, 1861, by Daniel Cameron, by which he promised to pay Martha Cameron six hundred dollars one day after date. In November, 1862, there was a payment made on the note of one hundred and forty-eight 'dollars, which is not denied by either party. In 1884, Daniel Cameron died, leaving property, real and personal, the real estate being in excess of 160 acres, worth, probably, more than two thousand dollars. Personal estate worth some three hundred dollars. He died intestate, leaving a widow and several children. No administration was had on the estate, but the widow and children continued to use and occupy the homestead and effects. Daniel and Martha Cameron were brother and sister, and lived very near each other.
The bill in the present case was filed September 15,1886, by Martha Cameron. She has since died, and the suit is now in the name of her administrator. The. widow and heirs-al-law, children of Daniel Cameron, are made defendants. The object of the bill is to enforce payment of the bill-single out of the estate left by Daniel Cameron. Among other defenses the statute of limitations of ten years is pleaded, that being our statutory limitation on such cause of action. — Code, 1886, § 2614.
To forestall the defense of ten years limitation, the bill charges that Daniel Cameron made payments on said sealed note during each of the years 1869 or ’70, 1875, 1876, 1877, 1878, 1879, and 1883. These alleged payments were very small, never in excess of two dollars in any one year, and sometimes as low as twenty-five cents. If, however, they were made as 'payments on the note, and, in each case, before the bar was complete, the statute is no bar to recovery. Code, § 2628. The answers deny that any of these alleged payments were made, except the one in 1862, twenty-four
A great deal of oral testimony was taken on each side. Some of it was illegal, and properly objected to on that account. In forming our conclusions we have disregarded all such testimony, but consider it unnecessary to specify it. We think the testimony fails to show that any of the small sums of money which Daniel Cameron let his sister have after 1862 were intended, or in fad were, payments on the bill-single. We therefore hold- that the prima fade bar is not obviated by that line of proof.
It is contended, in the second place, that the real relation between Daniel Cameron and his sister was not that of debtor and creditor, bat of voluntary trustee and cestui que trust. Vincent v. Rogers, 30Ala. 471, and Whetstone v. Whetstone, 75 Ala. 495, are relied on in support of this contention. We find nothing in the record to sustain this view. The facts show only a plain case of debtor and creditor.
There is some testimony tending to show that, before the ten years expired after the execution of the bill-single, Martha Cameron asked her brother to renew the contract, and that he replied “it would never run out of date.” It is contended for appellant tha-t this estops appellees from interposing the defense of the statute of limitations. There are several answers to this. It was only a promise not to plead the statute of limitations, and the statute runs against that promise as well as against the bill-single itself. We think it would inaugurate a very hazardous, if not injurious practice, if we were to sanction this new and wide departure from the policy which dictated the statute of limitations. A second reason: Whether or not the statute of limitations would run, was a question of law. Against such mistakes, as a rule, there is no redress in any court. — Clark v. Hart, 57 Ala. 390; 15 Amer. & Eng. Encyc. of Law, 334; 2 Pom. Eq. § 842. So, on this aspect of the case, appellant is in this dilemma: If we treat the statement as a promise, it is barred by the statute of limitations; if we regard it as an assertion, it was a mistake in law, and not a ground of recovery.
Affirmed.