147 Mass. 432 | Mass. | 1888
The first of these actions was brought to recover the balance of a promissory note for $500, owned by the plaintiff, and signed by the defendant’s intestate, dated January 9, 1847, payable one year after date, and bearing an indorsement in these words: “ Amherst, January 8, 1853. Paid on the within note ten dollars, and agree that I will not take any advantage of the statute of limitations. Porter Dickinson.” The second is a writ of entry to foreclose a mortgage given to secure payment of this note. Both suits were commenced on May 9,1887. There was no evidence, outside of the papers, that the note or mortgage, or the debt secured by them, had in any way been recognized or acknowledged since January 7, 1853, the time of the indorsement, or that any demand for payment of debt, interest, or rent had been made from that time to the year 1885. The defendant in the first case contended, and asked the court to rule, that the note was barred by the statute of limitations. The court refused so to rule, and ruled that, “ if the indorsement of the note declared on was made by Porter Dickinson, it had the legal effect of barring the defence by the defendant of the statute of limitations.”
It is unnecessary to decide in this case whether a separate contract not at any time in the future to set up the statute of limitations as a defence to a promissory note, entered into for a valuable consideration by the maker of the note, would be void as against public policy. The statute of limitations would not begin to run upon such a contract so long as it remained unbroken. Assuming, without deciding, that in a -suit upon the note, brought many years after its maturity, a contract of this kind would avail the plaintiff, either by way of estoppel, or to avoid circuity of action, as an answer to a plea of the statute of limitations by the defendant, the indorsement upon the note in the present case can have no such effect. For there was no evidence at the trial of any consideration for the agreement contained in it; and the court took from the consideration of the jury the second count in the declaration, alleging the exist
There were only two ways in which this agreement could be operative. It was a sufficient acknowledgment and new promise to take the note out of the statute. Perhaps, also, it created a technical estoppel against the maker. See Burton v. Stevens, 24 Vt. 131. Utica Ins. Co. v. Bloodgood, 4 Wend. 652. Quick v. Corlies, 10 Vroom, 11.
Considered as an acknowledgment and new promise, it extended the time during which the note could be sued to the end of six years from the date of the indorsement, and no longer. In that aspect, it is therefore of no avail to the plaintiff in this suit. If, as appears probable, the agreement was signed under such circumstances, and was so acted upon, as to work an estoppel against the defendant, two questions arise: First, can such an estoppel be effective in any case after the expiration of six years from the act relied on as creating it ? Secondly, if it can, was the language of this indorsement intended to have effect for a longer time than six years ? The first of these questions it is unnecessary to consider, for the answer to the second is decisive of the case. The indorsement was written the day before the expiration of six years from the date, and five years less three days from the maturity of the note. It plainly indicates that the parties were considering the effect upon their rights of the lapse of time after the note was made. That, if taken advantage of by the maker, would enable him to avoid payment of it unless it should be sued within a year and four days. They may have made the mistake of believing that the six years named in the statute ran from the date of the note. Whether they did or not, the natural construction of the agreement makes it relate to the time which had already expired. It was in reference to that only that there was any occasion to stipulate. As applied to that, the agreement was pertinent and proper. If construed to cover an indefinitely long time in the future, it would be extraordinary, and contrary to the policy of the law. In the absence of an explicit statement to that effect, the parties cannot be supposed to have intended that a note, then nearly five years overdue, should be left unpaid, without further action or negotiation by either party, for more than six years longer. And the fact
In the second suit, the possession of the demanded premises by the mortgagor, and those claiming under him, for more than twenty years, without recognition of the mortgage or of the debt secured by it, was presumptive proof of payment, which, in the absence of evidence to control it, entitled the tenant to a verdict. Cheever v. Perley, 11 Allen, 584. Andrews v. Sparhawk, 13 Pick. 393, 400. Howland v. Shurtleff, 2 Met. 26. Bacon v. McIntire, 8 Met. 87. Mr. Justice Wilde, in Andrews v. Sparhaivk, says: “ Such length of time does not, it is true, operate as an absolute bar, for it may be satisfactorily accounted for by proof of special circumstances; but it furnishes strong evidence of the extinguishment of the claim or right set up, and is to be held conclusive unless the presumption can be repelled by other evidence.” In Cheever v. Perley, it is said that, to rebut the presumption of payment, “ some positive act of unequivocal recognition, like part payment, or a written admission, or at least a clear and well identified verbal promise or admission, intelligently made within the period of twenty years, is required.”
Probably the learned judge who presided at the trial was of opinion that the indorsement upon the note took the mortgage out of the rule laid down in these cases. But, with the construction which we have given to the indorsement, the instructions to the jury were erroneous.
Exceptions sustained.
