Colding v. Williamson , 71 Ga. 89 ( 1883 )

Jackson, Chief Justice.

1. It will be seen from the report of the declaration, and exhibits, which make a part of it, that the suit is brought to recover the balance of advances made in 1873, and not upon the promissory note nor for breach of covenant for not furnishing cotton wherewith to pay for those advances. It is therefore the balance of an open account made in 1873, and as it was not brought until 1882, the account is most clearly barred by the statute of limitations.

Even had a part of the $400.00 note been unpaid, it would have been barred, because the note is not a sealed instrument under our statute, no mention being made of the seal in the body of the note. Code, §§2915, 2917.

If it had been an attempt to foreclose the lien, which is the legal effect of the other paper annexed to the declaration, it would also have been barred. The lien was made under the act of the 2-i'th of February, 1873. See acts 1873, section 6th, p. 43. The lien appears to have been confined to the crop of that year, 1873, in this case, by the aforesaid section of the act, the language being, “ and shall only exist as liens on the crop of the year in which they are made; ” and would be thereafter wholly inoperative, it would seem.

Besides, by the terms of the covenant in the paper giving the lien, the contract exhibited to the declaration, the lien and obligation is confined to the crops of that year. The remedy of the party was by foreclosure of the lien according to law; and by the act of 1873 supra, section 17, that foreclosure was to proceed under section 1969 of the then Code and the acts amendatory thereof, which will be found embodied in §1991 of the present Code, and which requires a demand, etc., and a prosecution of the action to foreclose within one year after the maturity of the debt. 54 Ga, 167.

So that, let the plaintiff have sued on the lien, although under seal, the bar of the one year’s statute would have been in his way, and no matter where he looked through the papers attached to his declaration or at the declaration itself, on the face thereof his suit was barfed and should have been dismissed on demurrer. The seal could give the contract or covenant no longer life than the statute, its creator, authorized; and that was ephemeral; it died in a year.

Judgment affirmed.