145 Iowa 122 | Iowa | 1909
The mortgage which plaintiff seeks to have canceled so far as it appears to be a-lien on his land, and which defendant seeks to enforce as against said land by foreclosure, was executed in 1880 by James Doran, the father of plaintiff, and was given to secure the' payment of $1,296 in three years with seven percent interest, payable annually, interest, if not paid when due, to draw interest at the same rate. In 1897 James Doran, the father, conveyed the land covered by the mortgage to this plaintiff by warranty deed, stating a consideration of $1,200, in which it was recited that “this conveyance is made subject to a mortgage executed grantor to Patrick upon which is unpaid $500 and accruing interest.” This conveyance contained also the covenant that the premises “are free from all incumbrance except mortgages to Phelps and Doran.” The ground now relied on for relieving plaintiff’s land from the lien of the mortgage executed to defendant is that the indebtedness secured thereby is barred by the statute of limitations, as against which claim defendant pleads the recitals in the deed as constituting an admission in writing, “signed by the party to -be charged, that the ’ debt is unpaid,” reviving the cause of action as provided in Code, section 3456.
We have, therefore, a statute differing in terms and evidently in purpose from those statutes construed in the .authorities above referred to. While this particular distinction has not been emphasized in our previous cases, and the question as to whether the admission sufficient under the statute must be made to the creditor or some one representing him or 'in privity with him and not a stranger has not been expressly passed upon, there are expressions in the previous decisions of this court indicating that the construction of statutes referring to .an acknowledgment, practically equivalent to a new promise, are not controlling in the construction to be given to the word “admission” which is used in our statute. In Collins v. Bane, 34 Iowa, 385, 389, the point is mooted, but no view is expressed; while in Mahon v. Cooley, 36 Iowa, 479, it is said that under the statute as it now stands an admission alone is sufficient without a new promise, and that such admission “is not regarded as a contract, but is merely a written declaration that the debt is not paid. It is not necessary that the name of the party to whom it is made should appear therein. The object of the law is to secure written. evidence attested by the. signature of the debtor that the
Bearing in- mind the sense in which the term “acknowledgment” was originally used before there was any statute on the subject, and in which it has been used in statutory provisions requiring the acknowledgment to be in writing, it is evident that the term “admission,” used in our statute, is not to be restricted within the same limits. A written admission is a statement suggesting an inference as to any fact in issue or relevant to any such fact, and it is admissible in evidence if made against his own interest by an adverse party or one in privity with him, as his grantor, or by an agent or attorney. Jones, Evidence (2d Ed.) section 235 et seq. Admissions by a. third person, a stranger to the suit, may be received in evidence where the issue is substantially upon the rights of such person at a' particular time. Bouvier, Law Dictionary (15th Ed.) 124. In short, the term relates to a statement presumably against the interest of the party making it and its admissibility is determined by the rules of evidence; and our statute makes an admission in writing by the debtor competent evidence to establish the revival of a contractual indebtedness as against the plea of the statute of limitations. There is no indication of an intention that -such evidence shall be excluded if the admission is not made to the creditor himself or some one representing him or in privity with him, but to a stranger to the contract.
The written admission contemplated by the statute seems to be analogous to the memorandum in writing generally required under the statute of frauds as enacted in different states to establish a sale of goods or merchandise when the goods have not been delivered, and' no part of the price has been paid. It is well settled that.' such a memorandum need not be in form or effect a written contract, and .that it is required only as furnishing the essential evidence of the contract- of sale as against the party to be charged. Such a memorandum need not be delivered' to the opposite party nor his agent nor a person in privity with him, but it is sufficient if it is signed and in any way promulgated so as to become an instrument of evidence. A sufficient memorandum of the terms of the sale made in a letter from the person to be charged to a third person is sufficient. Gibson v. Holland, L. R. 1 C. P. 1; Moss v. Alkinson, 44 Cal. 3; Moore v. Mountcastle, 61 Mo. 424; Kleeman v. Collins, 9 Bush (Ky.) 460; Cunningham v. Williams, 43 Mo. App. 629; Lee v. Cherry, 85 Tenn. 707 (4 S. W. 835, 4 Am. St. Rep. 800). The memorandum in such cases seems to be treated simply as
The decree of the trial court is as to each appeal affirmed.