Chrisman v. Irwin, 37 Mo. 169

Chrisman v. Irwin

37 Mo. 169 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

This was a suit upon a promissory note against two of three joint makers, the third being dead. One of thé defendants was not served with process, and the other pleaded the statute of limitations as a defence. To avoid this, the plaintiff relied upon a payment made within ten years before suit. The evidence showed that after the decease of the third maker, the note had been presented for allowance-in the Probate Court'against his estate, and the allowance was endorsed on the note as follows: “ Allowed vs. the estate of S. B., 18th July, 1859, |554 64, balance of one-tliird of the note.” The note was drawn payable in six months after date, and was dated the 20th of September, 1847. Payments had been made by the deceased in his lifetime, in the year 1849, but there had been no payment by either of the other makers within ten years, and at the time of the allowance the note stood barred as against all three, unless taken out by the operation of the statute by the payments made in 1849 and before; and when this suit was begun the statute had run as against the defendants, unless the allowance had- prevented the bar.

The determination of the latter point will dispose of the case. There is no express acknowledgment by the administrator of the existence of the debt, nor any new promise to pay it. He merely omits to avail himself of the statute as a defence against the allowance; the court decides that the debt is a subsisting demand against the estate, and makes the allowance, which is a judgment. He makes no voluntary payment of .the note in his character of personal representative of the deceased maker. The note was joint and several under the statute. By the death of one party all community of interest between him and the other joint makers, from which any agency could be implied, had ceased to exist. The administrator .was not the representative or *174the agent of the other makers for any purpose. He had no power as such to create a new debt, even against the estate, much less against the other parties. His duty was to collect the debts of the estate,- and pay such demands as should be allowed against the estate, when so ordered. Between him and the defendants here there was no kind of privity.

Without undertaking to review all the authorities, which are numerous and somewhat conflicting, upon the effect of partial payments in reference to the statute of limitations, it will be sufficient to declare our opinion to be that this allowance did not revive nor continue the debt as against the other makers, nor prevent the statute running against them. (Slater v. Lawson, 1 Barn. & Ad. 396; Hathaway v. Haskell, 9 Pick. 42; Smith v. Townsend, 9 Pick., S. C. 44; Ang. on Lim. § 252; Shoemaker v. Benedict, 1 Kern., N. Y. 176.)

In Craig v. Callaway (12 Mo. 94) both joint makers were still living, and a payment of interest had been made by the surety on account of the principal debtor before the statute bar had been attached; and it is, therefore, widely, distinguishable from this case. It has been held that a part payment. by an administrator will be binding on the party making it, there being an implication to that effect from the peculiar provisions of the statute, and that a part payment by one of several joint contractors will bind all the rest, when the parties are living, resting on the principle that a payment by one is a payment for all, the one acting virtually as agent for the rest. (Foster v. Starkey’s Adm’r, 12 Cush. 325; Whitcomb v. Whitney, 2 Doug. 651; Wyatt v. Hudson, 8 Bing. 309; Craig v. Callaway, 12 Mo. 94.) The words of the statute are that “nothing contained in the two preceding sections shall alter, take away, or lessen the effect of a payment of any principal or interest made by any person.” (R. C. 1855, p. 1053, §§■ 12-14.) This leaves the, effect of the payment to be determined by the general law as it stood before the passage of the act, and it may reasonably be understood to mean any person who is competent in law to make such payment, and thereby bind the other joint contractors, *175and one who does make such payment as his own voluntary, act. We are not inclined to extend the application of this doctrine any further than these cases have gone, nor is it necessary here to give our sanction to them. In Shoemaker v. Benedict, (1 Kern., N. Y. 176,) this subject is elaborately considered, and the doctrine of the cases which have followed the decision in Whitcomb v. Whiting expressly overruled, Denio, J., dissenting, but agreeing with the rest of the court that such payments made by .one of the joint contractors after the statute bar had run, was not binding on the other parties. We have no hesitation in concurring with that opinion thus far. Any joint privity or implied agency must then be considered as terminated. (Bell v. Morrison, 1 Pet. 373; Atkins v. Tredgold, 2 Barn. & C. 23; Van Deusen v. Parmelee, 2 Comst. 523.) Whether this note was barred or not at the time when this allowance was made, there was no voluntary payment made by the administrator, as the representative of the deceased party, that would have the effect, on any principle of implied agency, privity of contract, or othwise, to create a new contract, or to continue the former liability beyond the time of the statute bar. A debt might very well be allowed by a Probate Court, the administrator merely waiving or omitting to plead the statute of limitations. The court would only have to consider whether or not the debt was a subsisting demand against the estate; and when once allowed, the demand becomes a judgment, which the administrator is bound to pay when so ordered by the court. To hold that this could take the case out of the opez’ation of the statute as against the other parties, in referezice to whom the debt had stood baz-red for many years, would be goizig far beyond any authority that has been adduced, and beyond any sound and just principles of law.

The judgment is reversed and the cause remanded.

The other judges concur,