Davidson v. Lawrence

Trippe, Judge.

The complainant, as the surviving grantee in a deed executed in 1849, and absolute on its face, seeks to engraft a parol trust thereon to him and his deceased co-grantee, to-wit: that it was made for the pui’pose of the property therein mentioned being applied to the payment of debts existing in account and contracted in 1848, and due to the grantees, severally, and divers other parties. There is no reference in the deed to any debts, nor indeed was there any satisfactory evidence what debts were intended to be secured. After the lapse of twenty-two years, and after the death of the alleged debtor, complainant asks to be allowed to set up the parol trust, and to enforce the collection of the debts that would be more than three times barred by the statute of limitation, unless they can be saved by the course he seeks to adopt. Prior to the Act of 1856, a verbal promise to pay a debt would take it out of the statute, or give a new point of time from which the statute would commence running. Since the passage of that Act a new promise to have that effect must be in writing. If there was no such written promise in this case these debts must have been barred, taking the most favorable view for complainant, in 3860. This is supposing that verbal promises had been made up to the latest date that they could have been effective. Certainly they would have been, barred when the suit was instituted by the Act of March 16 th, 1869. Now is there any written acknowledgment of these debts at any time, as subsisting debts, from which a promise to pay could even be inferred ? The record discloses none. The letter of Taylor, the intestate, does not admit them as subsisting debts,'but it sets up, substantially, not only that they are paid but that there is an overplus of the property which discharged them, which rightfully should be his. Piad the deed specified the debts, and provided for their payment, it might be that it would have given them the character of obligations or debts under seal. But, as stated, there is no reference to them in the deed, and no proof of any written acknowledgment of them. It would be manifestly against all legal principle to permit the parol trust to be proven by parol evidence, and then to hold that such testimony gave to simple contract debts existing in account, the status of specialties.

Under this view there could have been no legal liability on Taylor’s estate for these claims in 1871, which could have been enforced, independent of the Act of 1869. But whether that position be correct or not, we do not think that the allegations in the bill and the proof at the hearing entitle the complainant to any greater rights than a mortgagee would have, or than if the debts had been securities under seal. Twenty years will bar the right of action on instruments under seal, and the right of a mortgagee to foreclose. So, if the mortgagee receives possession of the mortgaged property under the mortgage, twenty years will bar the mortgagor’s right to redeem, although the former, in such instances, is usually called a trustee for the latter : Morgan vs. Morgan et al., 10 Georgia, 300; 3 Johns. Ch. R., 129 ; 3 Atk., 313. We do not see from the facts in the record why the creditors in this case should have superior rights to a mortgagee to foreclose, or to a mortgagor to redeem. The mortgagee and this complainant both would sustain the relation of a creditor to the party against whom they may severally proceecl, and the object of each suit would be the same, to collect a debt. Why should not the presumption of the law as to payment, or the repose intended to be secured by the statute, enure to the benefit of the alleged debtor in the one case as well as in the other ? We think this can be done, and that it does no violence to the rule, that the statute of limitation does not apply to a direct subsisting trust, a rule that denies the right to a trustee to set up the statute against his cestui que trust. Though the debts attempted to be enforced by complainant, had they been secured by instruments under seal, or by mortgage, might not be barred by the lapse of twenty years, in view of the different Acts suspending the statute of limitation, yet, according to the decisions made during the present term, in the cases of John George vs. James Gardner, and Moravian Seminary vs. W. H. Atwood, administrator, we hold that even had they been of that character, the Act of March 16th, 1869, would bar complainant’s right of recovery.

The verdict of the jury having been rendered in favor of defendant, the judgment granting a new trial is reversed.