Findley v. Cunningham ( 1903 )

Beannon, Judge:

The administrator of S. S. Cunningham brought a chancery suit against the estate of James L. Cunningham to convene the latter’s creditors and satisfy his debts out of his real and personal assets. The bill alleged that James L. Cunningham had made to S. S. Cunningham a note for $2,314.40, and one for $100.00, and sought to enforce their payments out of said assets. The two administrators of James L. Cunningham and his heirs were parties. An amended bill was filed substantially the same as the original. One of the administrators answered those bills denjdng the existence of the debts of S. S. Cunningham, and pleaded the statute of limitations against them. The case was referred to a commissioner to ascertain the debts against James L. Cunningham’s estate, and he reported the bond of $2,314.40 as barred. Then the heirs filed their answer denying indebtedness under said notes and pleading the statute. The plaintiff filed a second amended bill filing certain letters written by William L. Cunningham, who was one of the administrators of James L. Cunningham and one of his children, to S. S. Cunningham, and claiming that they operated as new promises by the administrator, binding the estate for the full new period of the statute after their dates, and that they also bound the said William L. Cunningham and other children as heirs to the continued liability of the real estate for those debts. This second .■amended bill also charged that in writing those letters William B. Cunningham acted as agent for the other administrator and for his co-heirs, and thus bound them by a new promise, and charged the real assets for the debts. These letters were written before the bond was barred. This amended bill was sworn to. William L. Cunningham as administrator and as heir answered, denying its allegation that he acted as agent of the other administrator and the other heirs, but those heirs did not answer said second amended bill, and it was taken for confessed against them. A decree was entered charging the personal and real assets with both of the bonds in favor of S. S. Cunningham’s estate, and both the administrators and heirs appeal.

As to the question whether an executor or administrator can, before a debt against the estate has been barred by the statute of limitation, by a written promise debar the estate from the benefit of the statute. Section 9, chapter 104, Code, reads:

“No acknowledgment or promise by any personal representative of a decedent or by one of two or more joint contractors, shall charge the estate of such decedent, or charge any other of such contractors in any case, in which, but for such acknowledgment or promise, the decedent’s estate or another contractor could have been protected under the sixth section of this chapter.” This is literally the same as section 8, chapter 149, Virginia Code of 1849. How was the law before 1849 ? The great current of authority said that an administrator could not ’revive a debt already barred. Wood Lim. s. 190; note 12 Am. D. 659; Angell on Lim. s. 265. I assert what the opinion in Seig v. Acord, 21 Grat. 371, asserts and shows, that such was always law in Virginia. But the law in Virginia, as elsewhere generally, was that an executor could, by a promise to pay, give a new term to a debt not barred. Braxton v. Harrison, 2 Leigh 532. To restrain this power to a limited extent, that is, as to realty of a decedent, in 1841, the Virginia Legislature passed an act containing the provision, “No debt shall be protected against the operation of the statute of limitations by this act, nor by any assumpsit of the executor or administrator, so as to charge the real estate in the possession of the heirs or devisees with the payment thereof.”

Here we have the broad enactment that no promise by an executor or administrator shall give the debt a prolonged force against irealty. There is no hint that his promise should be void as to a barred debt, but good as to one not barred. The act makes no such distinction. Can we suppose that it was the purpose of section 8, chapter 149, Code 1849, to narrow the law of 1841, and to charge real estate by the promise of an executor, whereas St would not by the act of 1841 ? It would be a violent assumption to say so. That it was not so intended is clearly shown by the note of the revisors who reported the Code of 1849 to the Legislature for its action. That note says that section 8 would “accomplish the object of the latter part of the act of 1841-2,” that is attain the object, afford the same protection to realty as did the act of 1841. Revisors Report 744. No other section was inserted to retain the act of 1841, as there was no need of another section. N ow, the Code of 1849 for the first time made real estate of a decedent assets for payment of general debts the same as personalty, and we cannot suppose that it was intended to make an executor’s promise charge the personality, and not the realty. Of course, that idea cannot be for a moment entertained. It was the design in 1849 to protect both against an executor’s promise in the only case in which they needed protection, that is, where the promise was to pay a debt not yet barred. The law already protected both personalty and realty against an executor’s promise to pay a barred debt. The act of 1841 went a step farther and protected realty against a debt not yet barred, and when in 1849 both personalty and realty were made alike liable to all debts, the same protection was meant for both. There was no longer reason to make the difference between personalty and realty made by the act of 1841. The law already denied effect, to an executor’s promise to pay a barred' debt, and we must say that the Code of 1849 meant some change, and that was to protect both alike, to deny any power in an executor or administrator to add to the burden of the estate to make it liable where without his act it would bo exempt. In construing a statute we look at the evil to be remedied, and that was the power of an executor to promise payment of a live debt not his power to revive a dead one, as he had no such power. The probability arising from the state of the law up to 1849, and the making of both personality and realty assets for debts, and the adoption of section 8, seems likety and strong; but that probability does not rest on those influences alone, but it becomes a certainty when we look at the report of the Revisors. It adverts to English cases holding that a new promise by an executor must be express, and must be by both where there are two, and then says: “We think it wise not only to follow it so far as it has gone, but to go a step farther, and in accordance with the opinions of the Supreme Court of the "United States, in Thompson v. Peter, 12 Wheat. 565, and of the supreme court of Pennsylvania in Fritz v. Thomas, 1 Wheat. 66, established that in an action against a personal representative, no proof of acknowledgment or promise by him will take the case out of the statute of limitations. The section will accomplish this purpose, and at the same time attain the object of tbo latter part of the second section of the act of 1841-2, p. 55, chapter 98, which provides that no debt shall be protected against the statute of limitations by any assumpsit of the executor or administrator, so as to charge the real estate in the possession of the heir or devisee with the payment thereof.” The Legislature passed section 8 with that explanation of its aim and legal effect before it, and may we not therefore say that it intended to utterly deny in all cases power in an executor or administrator to make any promise having any effect to prevent the bar of the statute ? And why should this power not be denied ? The man is dead; the administrator takes the estate as he finds it simply to gather in assets, pay debts and distribute. Chief Justices dr.arsb.all and Gibson in the cases just mentioned strongly condemned the policy of allowing a dead man’s representatives to bind the estate, as he does not possess requisite information touching the debt to do so, and for other reasons.

Take the words of section 9. How comprehensive. "No acknowledgment ox promise” shall charge the estate “in. any case .* * * in which the decedent’s estate * * * could have been protected under the sixth section of this chapter.” It frees the estate in any case where it would be free but for such promise; it eliminates the promise. There is a shadow of question arising from the words “could have been protected.” The words are in the past tenge of of the potential mode. The section does not say “'would be protected.” From this it may be said that the words refer to the date of the promise, and that in the case of a debt then still alive it could not have been protected by the statute, and the promise makes it no worse, whereas, as to a dead debt the law would protect it but for the promise. I shall not be so dogmatic as to say that this argument has not force; but I will say that it is only one of several considerations entering into the question, and not conclusive or outweighing others. It is only misuse of a tense. It does not, ought not, frustrate what, considering everything pertinent, was manifestly the aim of the law makers.

Another argument is that section 8, chapter 104, of our Code contains the broad provision that any one may make a new written promise, and thus lose the benefit of limitation; and section 9, comes in directly following making air exception to the capacity to make such now promise, disabling personal represhta-tives and joint contractors from so doing. It was designed t® make a clean-cut exception of them from section 8 — take them clear out of it.

The provision as to joint contractors in section 9, chapter 104 throws light on this question. At common law a new promise by one of two joint contractors deprived the other of the plea of limitation. In 1838 an act was passed reading: “And where there shall be two or more joint contractors, executors or administrators of any contractor, no such joint contractor, executor or administrator, shall lose the benefit of the said enactment, or either of them, so as to be chargeable in any respect or by reason only of any written acknowledgement or promise made or signed by any other or others of them.”

The revisors and the Legislature in adopting the Virginia sec- ' tion 8 must have considered that all the provisions of this act as to contractors would be attained by section 8. They left out the words of the act of 1838, “executors or administrators of any contractor.” They were not necessary. Suppose a promise by his administrator. It was deemed unnecessary to retain those words, as the words “executor or administrator” in the act would apply to both the executor of a single and joint contractor. Do you suppose that if one joint contractor should make a new promise to pay either a dead debt or one alive, it would have any effect ? I think not. Why does not the section including both operate alike as to both joint contractor or a decedent? Before this act, as it assumes, an executor of a joint contractor could bind the surviving contractor by a promise before the debt was barred, and also after, some say. This act plainly takes this power entirely away in both cases, if he had that power in both cases. The act of 1838 was not re-enacted in the Code of 1849, unless section 8 provides for it. If it does not include an executor of a joint contractor, then what? He has today the power, as at common law, to make such promise; but I cannot think it was so intended.

You may, however, answer that the word “representative” in section 8 includes the executor of a joint contractor, and that, as in the case of a single contractor, the executor can only promise when the debt is not barred. Even if so, then it follows that there is no law to prevent such promise where the debt is yet in life, according to the view opposite my view. Who believes that the Legislature meant tlms to recant the act of 1838, and allow" an executor to prolong a debt yet unbarred? It did not so intend. It thought that section 8 would cover this case, and if it did not design to let the executor of a joint contractor promise so as to bind the survivor, why let an executor of a single debtor do so ? My opinion is that by section 8, chapter 149, Code 1849, and section 9, chapter 104 of our Code, the word executor of a several' or joint contractor is meant. His- powers are in both cases taken away, in the same cases and to the same extent. This was the mission of that section. It did not intend to repeal the act of 1838, but intended to make the executor of both a single and joint contractor powerless to promise. If not, then the act of 1838 is repealed.

I cannot on the whole think that the Legislature intended to allow the act of a decedent’s representative to delay for years the closing of the estate and the distribution of the assets, or add to the burden of its liability. It designed that he should take the estate just as the dead man left it, and wind it up. It is not contended by counsel that any case, in either of the Yirginias decides this question, but that in three cases opinions have been expressed that an executor can give extended life to a demand by a written promise. These opinions are obiter. In Braxton v. Harrison, 11 Grat. 30, and Switzer v. Noffsinger, 82 Va. 524, are such obiters. The first case arose before the Code of 1849. Judge Moncure in saying that it was well settled that an executor could make an effectual promise to pay a debt not barred likely had in mind the law as it was before the Code of 1849. The expression was merely a passing expression in the other case not considered well. So in Smith v. Pattie, 81 Va. 662.

And further, if the promise of an administrator could, as it cannot, give prolonged life to a debt as to the personality, it could not as to the realty, with which he has no connection. Even where the administrator may make new promise, he cannot thereby charge realty. Steel v. Steel, 4 Ala. 438; Bevers v. Park, 88 N. C. 456. As no promise of an administrator cars avail, this remark is useless; but the decree charged the realty in this case.

As ’the heirs pleaded the statute of limitations in their answer to the original and first amended bill, that was sufficient though they did not answer the second amended bill. If this were not so, there can be no doubt but that the answer of the administrator to that bill would serve the heirs as to the defence of the statute. When he defends the personalty, he defends the realty. ■ If a debt does not bind personalty, neither does it bind the realty of a decedent; its defeat as to one is defeat as to the other.. This plea certainty defends the interest of the children as to their share in the personalty, and it would be dry technicality for the court to exempt the peisonalty on the plea of the statute by the administrator and then hold the realty liable because the heirs have not pleaded it. Is it possible that in a chancery suit to charge both personalty and realty of a decedent with debts, the plea of limitation by the administrator is not enough, but the heirs must also plead it ?

But it is contended that the second amended bill setting up the letters written by one administrator as new promises, and charging that in writing them he acted as agent for the other heirs, stands -without answer by them, and is taken for confessed as to them, and proves such agency without other proof, and binds the land by the new promises. The answer says it is “the separate answer of William L. Cunningham, one of the administrators." Is it that of William L. Cunningham as an individual heir, the word “administrator” being mere description of ‘the person P We must look at the pleading entire. It contains matter proper for the party to put in for the defence of the estate, denying tlie bpnd and pleading limitation; and proper for his own defence; that same matter, and that he did not write the letters binding his interest in the estate; and it denied the agency. Thus, we ought to treat it as the answer of the administrator and in his own right as an individual heir. I hold that as an answer of the administrator and of one coparcener, since the interest of the heirs are joint, and the liability of all grows alone from the bond of the ancestor, as the heirs are sharers in both personalty and realty, that answer serves to defend both estates and all the heirs. Why not ? It denies the same facts which their answers would deny. The fact it denies, if true, operates to defeat the whole demand, as well for one heir as another. It is the same defence common to all. It would be unreasonable to say that there is no debt as to the personahy, yet a binding one as to realty; or no debt because defeated as to one heir, yet a debt as to the others. High authority sustains this position. In Clason v. Morris, 10 Johns. 524, 538, Spencer, J., said: “I believe not a case can be found in which it is insinuated that where there are two defendants having a joint interest, and one appears and answers, and disproves the plaintiffs case, the plaintiff can have a decree against the other who had made default, and against whom the bill was taken pro con fesso. It would be unreason- ■ able to hold, that because one of the defendants had made default, the plaintiff should have a decree against him, when the -court is satisfied from proofs offered by the other that in fact the plaintiff is not entitled to a decree. Though I have not met with a case in equity to the point, yet pursuing the analogy between proceedings at law and in equüw, we are not without very dear authority; for it is a well settled principle that in actions upon contracts, the plea of one defendant enures to the benefit of all; for the contract being entire, the plaintiff must succeed upon it against all or none; and therefore if the plaintiff fails at the trial upon the plea of one defendant, he cannot have judgment against those who let judgment go by default. It would require the most binding authority to induce me to yield assent 1o such a proposition set up by respondent’s counsel; and indeed ilie result would be extraordinary; for if one defendant entitled himself to a decree, where the interest is joint and inseperable, a decree must be made in his favor as to a moiety of the matter in issue, and against the other in default for the other moiety; that is, the plaintiff would get half a decree, and the other defendant the other half.” This principle is sustained by Ashby v. Bell, 80 Va. 811, where one defendant to a joint obligation pleaded limitation and the bill was taken for confessed- as to another, the plea was held good as to both, and it was announced as law that where the cause of action is joint, and one defendant disproves the plaintiff’s case, unless it be on some defence purely personal to himself, no decree can go against the others. This is where the defence is common to all. Cartique v. Raymond, 4 Leigh 579, holds the same. In a suit to charge land as fraudulently conveyed to a party her administrator answered denying the fraud and asserting that the grantee paid value for the conveyance. It was held that this answer went to the defence of the heirs, who did not answer. The administrator had no connection with the land, and the personalty was not involved; but Hiere was the answer opposing the defence. Terry v. Fontaine, 83 Va. 45. But how as to the agency. Principles above apply. William L. Cunningham denied it. Could it be decreed to exist alone on the bill because the other heirs did not answer in the face of that denial ? In Johnson v. Zane, 11 Grat. 568, the court said: “It is said that though Mrs. Zane has not answered, and the allegations of the bill are as to her to be taken for confessed, and that therefore the pre-existence of the debt being admitted, the appellant is entitled to relief to the extent of any interest she may have in the subject. I have, however, already shown that there is no such allegation in the bill; and if there had been, the answer of Shriver, the trustee, would serve to put it in issue for her benefit, and that all others claiming under the deeds. “For this purpose, he may properly be regarded as representing the cestius que trust, and his answer will enure alike to the benefit of all.”

A trustee sold land under a trust deed. The purchaser alleged that the creditor agreed to make a general warranty, and he wag unwilling to accept a trustee’s deed. The trustee denied this contract in his answer, and it was held that this answer went to the benefit of the heirs of the creditor to deny that contract, though they did not appear. The fact set up by the trustee defeated the claim, because it showed there could be no decree on its basis. Payne v. Graves, 5 Leigh 561, 579. On these principles I think that answer denying the agency operated as a denial of it for all the heirs. These letters do not purport to have been written as agent. They bear no mark of being acts of am agent or in behalf of any principal, which they must do to bind by their force. Mechem, Agency secs. 432, 445; 1 Am. & Eng. Ency. L. 1035. There is nothing else appealed to to show such agency except that William L. Cunningham managed the land and was trying to sell. This he would do for himself. And what if in that he was acting for them? No general agency is proven, and if he was agent in managing or trying to sell the land, that does not prove that he was special agent to make a new promise. .His special power for that act must be shown, and it is not. William L. Cunningham never declared that he was special agent to make such promise for the other heirs. His acts cannot make him such, though they expressly purported to be done as agent, as “Neither the declarations nor acts of a man can be given in evidence to prove that he is the agent of another.” Garber v. Blatchley, 51 W. Va. 147. One dealing with a special agent must look ont for his authority. Dyer v. Duffey, 39 W. Va. 148. Those letters do not prove agency, could not if' they spoke .agency; but they do not so speak.

Do those letters bind the interest of William L. Cunningham in the assets ? They do not otherwise bind him; but that is not' involved, as such, is not the purpose of the suit. 1. He wrote-only as administrator. He had no intent to bind himself personally or his interests in the land. 2. I cannot see that an heir-can give a paper operating merely as a new promise of a debt of' his father, because a new promise is by him who owes the debt, and unless the heir gives a deed of trust on his share, I do not’ see that he can otherwise bind it. 3. The letters are not sufficient to be new promises. In Quarrier v. Quarrier, 36 W. Va. 310, it is held: “New promise must not be uncertain. It must acknowledge a fixed sum, or a balance which admits of ready and' certain ascertainment.” The promise must be express to pay, or if a mere acknowledgment, it must be unqualified, wiihout condition, importing intent to pay without reference to a future settlement; it must be determinate and unequivocal, so as to be-tantamount to an express promise to pay. Abrahams v. Swann, 18 W. Va. 274; Stansbury v. Stansbury, 20 Id. 23. Try the letters by these rules. One asks for amount of “your note,” and says “I have no doubt his estate will hold out.” That will not do. Another says: “I want to come over to your place and talk to you about your debt against the estate of my father.” This-will not do. In another he speaks of selling the farm, and says, “1 now ask you, if we cannot get that price publicly, will you. take it at that? You have a big pile in it — would not feel the buying of it very much.” What that “pile” is, its amount, is not given; simply that some indebtedness existed. Now, an acknowledgment must be equivalent to a promise to pay. This-is not. Of course, the letter simply sending $125.00 on indebtedness will not do, as partial payment does not serve as a new promise. And there were two notes. To which does it apply? In another letter he speaks of the general indebtedness, saying how he expected to arrange it,, without any reference to any particular debt, saying that none of the creditors need feel uneasy, as the debts only amounted to $8,500, and the land would bring more and the heirs would sell, if they could, rather than-cany the lead and worry. Of course, this does not acknowledge any particular debt or any amount. In one of the letters, referring to a partial payment, he said, ■ “I hope to send you more soon." In another he speaks of his desire to sell, and of dividing the property among all creditors, and asks if S. S. Cunning-Iiam could put them on the track to borrow $5,000.00 at five per cent. He said “I would like to see you and talk about it." About what? That particular debt? Or what arrangement to make as to all ? Or as to getting a loan ? Or as to best means •of selling or dividing the farm among creditors? The letter •does not say. The expression of hope to pay soon. Pay what amount? The letter does not say. A promise to settle, or pay an amount thereafter to be agreed will not do. Quarrier v. Quarrier, 36 W. Va. 310; Bell v. Crawford, 8 Grat. 110.

So, these letters are not new promises to charge even their writer’s share in the estate. They are not mortgages on it.

Therefore, we reverse the decree, reject the bond of $2,314.40 given by James L. Cunningham to S. S. Cunningham as a debt against the estate of James L. Cunningham, and remand the •■case to the circuit court for further proceedings.

.Reversed.