Townes v. Ferguson , 20 Ala. 147 ( 1852 )

PHELAN, J.

Two questions present themselves in this case for our decision; 1. Could Helms, as executor of Walker at the time he used the words to the witness Carter, on being presented with the account, bind the eetate of his testator ? 2. Will these words, rightly interpreted, have that effect.

On the first point, we think it clear that he could bind the estate. He was the sole executor, and as such had the power to bind the estate by his admissions, as has been decided in the case of Hall, Weeks & Co. v. Darrington, 9 Ala. 502. If his admission was binding, then it gave to the plaintiff rights, which, could not be changed or impaired by the fact that Helms subsequently died, and his executors, after suit brought, became parties to the suit as the representatives of Walker, through him.

2. Will the words of Helms, used to Carter, when presented with the, account against Walker, rightly interpreted, have the effect of removing the bar of the statute of limitation ? These words are, “ The account is a good one, but I cannot pay it before January, at which time I will be receiving money for the hire of negroes.” It has been held in numerous decisions of late years, that where the bar of the statute was complete, as in this case, a mere admission of the correctness of the account would not remove the bar of the statute, and' that to produce this effect, there must be not only an admission of the correctness of the demand, but also a willingness to pay it. See case of Lowther et al. v. Chapell, 8 Ala. 352, and authorities there cited by Mr. Justice Groldthwaite; See also, Crawford et al. v. Childress, Ex’rs, 1 Ala. 483; 2 Greenleaf Ev. § 440, and authorities cited. We are disposed to maintain the same doctrine, now that the question is directly made.

The only thing next to determine is, the true force and meaning of the words used by the executor Helms. The defendant below had a right to call upon the court to decide their legal import. This was not calling upon the court to usurp the province of the jury, as the counsel for defendant in error has argued, It was in the nature of a demurrer to evidence. Sims v. Sims, 2 Ala. 117. The request of the counsel for defendant to the court to instruct the jury, that these words were not sufficient in themselves to remove the bar of the statute of limitations, we think, was properly refused, for the reason that these words, when rightly interpreted, contain not only an acknowledgment of the correctness of the account, but a willingness to pay it. To the first point, the admission that the “ account ” was “ a good one,” is too plain to admit of construction ; and the remainder of the words, “I cannot pay it before January,” means, I will pay or try to pay it after January; and to strengthen this inference, natural in itself, he immediately makes reference to the means out of which he expected to be able to pay; iC at which time I will he receiving money for the hire of negroes ”• — -the negroes of tbe estate of bis testator, as it is to be presumed.

Tbe admission amounted to an acknowledgment of tbe correctness of tbe debt, and also of a willingness to pay, and this was sufficient, when made by a sole executor, to take tbe case out of tbe statute of limitations. The request of the defendant below, for a charge to tbe contrary, was properly refused,

Let tbe judgment below be affirmed.