Green v. Goble , 7 Kan. 297 ( 1871 )

'The opinion of the court was delivered by

Kingman, C. J.:

This is an action on a note and mort-gage, given by William H. Goble and Lida M. Goble on the 15th of April, 1861, to William B. Simmons for $625.57. The note bore interest at twenty per cent, per annum, to be compounded annually. On the 26th of September, 1864, $550 were paid on the note, and on the 3d of July, 1865, $260 were paid thereon, and this was 4he last payment. This action was commenced by the -administrator of William B. Simmons on the 17th day of March, 1869. It is admitted that Simmons died on "the 10th day of February, 1867, and that plaintiff in ■error was appointed administrator on the 18th of June, 1868. The defense relied on is the statute of limitations.

1. statute of . suspended by death of creaUor-Between the last payment on the note and the time of bringing the suit more than three years had elapsed, and as the statutes then were the claim was barred, unless taken out of the operation of the statute by some legal .-cause. The plaintiff in error claims that the cause of ■action was not barred because the death of the creditor suspended the running of the statute ; and deducting the time intervening between the death of the creditor and the appointment of the administrator, and three years had not elapsed after the last payment and before the commencement of the action If the running of the statute was not suspended, then it is claimed that there was a subsequent acknowledgment of the debt, in writing, within three years before this action was commenced-Does the death of a creditor suspend the running of the statute ? Asa general rule, when a statute begins to run, it continues to run until the’ ° 1 demand is barred. This principle is laid down with great uniformity in all the authorities, and may be-considered as settled. Undoubtedly the legislature may prescribe differently, and in this state several exceptions-are made, but none such as is claimed in this case. This is of itself a strong reason against the rule as claimed by plaintiff in error, and being wholly unsupported by the-authorities it cannot be allowed to prevail in this case.

2. Admission to take case out b“nmS¡£ dfbtoi'by tbe II. It is claimed that there was a subsequent acknowledgment of the debt in writing which takes it out of the-statute. "William H. Goble owed the debt. His son Wm. F. Goble had bought of his-father sixty acres of the land mortgaged to pay the debt, and was interested in having it paid off, and his land released from the mortgage. He was also active as agent in arranging this business for his father, and was-so recognized by his fathsr. On the 27th of December, 1867, William F. Goble wrote a letter to John B. Simmons in Indiana, a brother of the deceased, which was a full acknowledgment that William H. Goble oyed the-money; but it nowhere appears that the letter was written by the request or by the authority of William H. Goble, nor is it in anywise important; it was not “signed' by the party” to be charged with the debt, as the statute requires, and therefore was not such an acknowledgment', fcas is required to take the case out of the statute.

3. a writing, neitkerdehvcepted^lio acment. HI. In March, 1867, William H. Goble and wife prepared a new note and mortgage to Simmons and took them to Mr. Green. They were so prepared and presented in pursuance of a previous arrangement x x_ 0 between Simmons and William H. Goble. The note and mortgage now sued on were to be delivered up and the newly prepared papers take their place. But the arrangement was not consummated. Mr. Green refused to receive the new note and mortgage, and defendant took them back and tore his name off the note. The new note bore a less rate of interest, and the mortgage covered a different piece of land. Bo these facts constitute such an acknowledgment of the debt as takes the case out of the statute ? No such purpose was contemplated by the parties. The papers amounted to nothing. They were (if anything) a conditional promise and the plaintiff cannot avail himself of the benefit of it without complying with the conditions. He does not seek to do so. He rests his demand on the original note with its high rate of interest, and the security offered by the original mortgage. He cannot use the papers prepared as a substitue for them to lift his case out of the statute of limitations. Smith v. Eastman, 3 Cush. 355; Sumner v. Sumner’s Ex’r, 1 Metcalf, (Mass.,) 394. The judgment is affirmed.

All the Justices concurring.