Trustees of Canton Female Academy v. Gilman

| Miss. | Oct 15, 1877

Campbell, J.,

delivered the opinion of the court.

The only controversy between the parties is as to the statute of limitations. The five instructions asked by plaintiffs, and refused, relate to the time when the statute of limitations-commenced to run on plaintiffs’ cause of action, and were properly refused, because not pertinent to the issue, which is, Did the defendant acknowledge the claim sued on, in writing, within three years next before the commencement of the action ? When the statute of limitations commenced to. run. was not involved in the issue. The plaintiffs, confessing defendant’s pleas that the cause of action did not accrue within three years before the institution of the suit, sought to avoid this fact by replying an acknowledgment of the claim, in writing, within three years. Not having traversed defendant’s-pleas of the statute of limitations of three years, they and. the-jury were concluded from questioning what is- thus confessed on the record. Stephen’s PI. 217 ; Gould’s PL, ch. 111, sec. 167.

It is true that the pleas of the statute of limitations o.f three years did not present a bar to the action, and would have been held bad if plaintiffs had demurred to them; but they did not, and, instead of that, confessed them, and tendered issue-on the alleged acknowledgment by defendant within three years, and that was the issue on which the verdict of the jury was to be rendered. Upon this issue the jury was compelled to find for the defendant, unless there was evidence before it-of an acknowledgment, in writing, by defendant of the claim sued on within three years before the commencement of the-action; and this disposes of all the questions presented by plaintiffs in error, except as to the admissibility in evidence of the writing relied on as .containing an acknowledgment by defendant of the claim sued on; for the verdict being clearly Tight, and what it mnst have been upon the issue tried, it will not be disturbed unless the plaintiffs were improperly denied “the use of evidence which they offered.

The writing offered to prove an acknowledgment of the -claim by defendant is too vague and indefinite to have that effect. Lawrence v. Mangum, 30 Miss. 171" court="Miss." date_filed="1855-12-15" href="https://app.midpage.ai/document/lawrence-v-mangum-8256886?utm_source=webapp" opinion_id="8256886">30 Miss. 171; Mash & Harrison v. Philler, 32 Miss. 237" court="Miss." date_filed="1856-10-15" href="https://app.midpage.ai/document/mask-v-philler-8257112?utm_source=webapp" opinion_id="8257112">32 Miss. 237; Burr v. Burr, 26 Pa. St. 284; McRae v. Leary, Bxr,, 1 Jones, 91; Suter v. Sheeler, 22 Pa. St. 308.

This view does not conflict with that held in Hart v. Hoyt, 54 Miss. 547" court="Miss." date_filed="1877-04-15" href="https://app.midpage.ai/document/hart-v-boyt-7984961?utm_source=webapp" opinion_id="7984961">54 Miss. 547. In that case the writing was for the very purpose of saving the bar of the statute of limitations. It was indorsed upon the deed of trust which secured the debt intended thereby to be saved from the bar. The debt was qiarticularly described, and was thereby revived, in the view of a court of equity, subject to the claim of the debtor to have “the amount reduced by some credits which were understood "between the parties, and not disputed. The circumstances of that case were peculiar and exceptional. In this case it is manifest that the writing was not made with any purpose to waive a defense or save the bar of the statute. It does not identify the debt referred to. It mentions a balance due for rent, but does not state when, nor from what, nor to whom the rent .accrued, nor what the balance was. To allow all these things to be proved by parol would produce the evil the statute requiring an acknowledgment or promise in writing to save the bar of the statute was intended to prevent.

As the pleas of the defendant setting up the statute of limitations of three years were not a bar to plaintiffs’ action, and were a confession of it, they would, as to this issue, according to the well-settled rule of the common law, be entitled to judgment without regard, to the verdict; but section 622 of 'the Code provides that no judgment shall be stayed or reversed, after verdict, for any defect, whether of form or substance, which might have been taken advantage of by demurrer, and •which shall not have been so taken advantage of, and this forbids a reversal of the .judgment. The plaintiffs lost their right to take advantage of the manifest insufficiency of the pleas by not demurring to them.

■ Judgment affirmed.