Adams v. Torry's Executors , 26 Miss. 499 ( 1853 )

Mr. Justice HaNdy

delivered the opinion of the court.

The estate of John L. Tony having been declared insolvent in the probate court in October, 1850, the appellant, as the assignee of one Harmon, a creditor of the estate, filed with the commissioner of insolvency four claims against the estate, namely, two promissory notes of the testator, payable to Samuel Walker, guardian of Francis Harmon, one dated 15th May, 1841, and the other dated 19th April, 1842, each due at their respective dates; an open account, dated 7th December, 1840, due by testator to “the estate of John Harmon;” and a note executed by the testator, dated 15th May, 1841, payable, at its date, “to J. J. Williams, administrator of John Harmon, deceased.” These claims, having been allowed by the commissioner, upon exceptions taken, were disallowed by the probate court, upon the ground taken by the executors, that they were barred by the statute of limitations. And from this order, the present appeal is taken.

The appellant relies on an acknowledgment of the testator to take the claims out of the statute. This acknowledgment was to the following effect. It appears that the guardian of Francis Harmon, who had possession of these claims from 1844 to 1847, called on the deceased in relation to them in the year 1845, and also'in the summer of 1847, and mentioned the claims. Torry admitted them to be just, and expressed his desire to pay them when he should be able; but the witness had no recollection that, during that conversation, he had the claims with him, or that he exhibited or presented them to the deceased; but he stated that the claims in controversy in this suit were those about which the conversation took place.

It is urged, in behalf of the appellant, that this evidence shows a sufficient acknowledgment to prevent the operation of the statute, and that no actual presentation of the claims was required by the 16th section of the act of 1844, Hutch. Code, 832. This question has been expressly decided in two cases by this court, Thornton v. Crisp, 14 S. & M. 52, and Bacon v. Foute, 24 Miss. R. 156; and we see no reason for changing the exposition thereby given to this statute. It is manifest that the legislature intended that, in order to prevent the operation of the statute, there should be either a “promise or acknowledgment in writing, signed by the party to be charged thereby,” or proof “that the very claim sued on was presented and acknowledged to be due and unpaid;” for such are the positive terms of the act. The words “ presentation of the very claim,” clearly show that the acknowledgment was required to be made under such circumstances as that the claim acknowledged could not be misunderstood; that it should speak for itself as to its character, and should not depend, in that respect, upon the uncertain memory of witnesses. It was intended that the demand, in the form and of the tenor in which it was made, should be shown to the party, so that he might have knowledge of it and act understandingly in reference to it, and that witnesses might be able to say whether it was that very claim which he acknowledged to be due; and doubtless, this provision of the .statute had its origin in the same purpose which gave rise to the recent English- statute known as Lord Tenterden’s Act, a determination to put an end, as far as might be, to the judicial refinements and constructive exceptions which had so much perverted the spirit of statutes of limitations, and rendered them uncertain and impracticable. Plere, the language and the intention of the legislature are alike plain, and we have but to carry it out. "We think the' court below acted properly in holding the open account, and the note to Williams, administrator of John Harmon, as barred by the statute.

But the two notes payable to Samuel Walker, guardian of Francis Harmon, depend upon a different principle.

It appears from the record, that Ellett was guardian of Francis Harmon, in' the place of Walker, from 1844 to 27th September, 1847, at which time he delivered over these claims to the ward. It is not distinctly stated that the ward then became of age, but it is to be presumed that he became of age at or near that time. Under the provisions of the ,7th section of the statute of 1822 (Hutch. Code, 825), the infant was allowed the same period of time after coming of age, to institute his action, as if the action had accrued at the time of his coming of age. This gave to the ward six years from the period of his majority to bring his action; so that if he came to his majority at any time in the year 1847, or even in the year 1846, these claims were not barred in April, 1851, when they were filed for allowance with the commissioner. Such was the condition of the claims when they were assigned by Harmon to Adams, and the assignment passed to Adams all the rights attached to them in the hands of Harmon. We think, therefore, that the court erred in holding that these two claims were barred ; and for this error, the judgment is reversed, the exceptions as to these two claims disallowed, and the case remanded.