21 La. Ann. 350 | La. | 1869
The executor of the succession of Hillebrandt filed his account, which was opposed by J. Kohn, the executor of the succession of Samuel Kohn, because the claim of the latter, to wit, a mortgage note for $6500, due twenty-sixth day of January, 1857, was not placed on the tableau.
On the trial the executor of the succession of Hillebrandt set up various defenses against the note in favor of Samuel Kohn. The most serious one seems to be the prescription of five years, which we propose to consider first.
Parol testimony was received, which proves that the payments were made as the indorsements show; but more than five years elapsed between the last payment and the one preceding it. Prescription had therefore accrued before the last payment was made. The court very properly refused to receive the indorsements of credits as evidence, because they were not signed by the deceased.
Parol evidence can not establish the renunciation of prescription on a promissory note.
The second section of the act of eighteenth of March, 3858, provides “that hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession in order to take such debt or liability out of prescription, or to receive the same after prescription has run or been completed, but that in all such cases the acknowledgment or promise to pay shall bo proven by written evidence signed by the party deceased or his specially authorized ageiil;, or attorney in fact.” Acts 1858, page 148.
The opponent contends that the payment made after prescription had accrued revived the debt, and relics on article 34S4 of the Civil Code, which declares that “renunciation of prescription is either express or tacit, a tacit renuheiation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.”
The act of 1858 referred to requires a certain kind of evidence to establish the expfess renunciation of prescription. We apprehend the same character of evidence is required to establish the fact creating the presumption of relinquishment or tacit renunciation.
If parol evidence can not prove a direct promise to pay we do not see how it can prove a fact which creates an implied promiso to pay. We do not find in the record any written evidence of the alleged payments signed by the deceased nor any express renunciation. The bill of exception was'well taken to the introduction of parol evidence to take the note out of prescripton.
It is therefore ordered that the judgment of the lower court dismissing the opposition be affirmed with costs.
Rehearing refused.
