Opinion
No. 2384-2.
June 30, 1977.
[1] Limitation of Actions — Acknowledgment of Debt — Promise To Pay — Specificity. The bar of the statute of limitations against a debt may be removed by an acknowledgment which absolutely, unqualifiedly, and unconditionally admits the debt and clearly implies a promise to pay it.
[2] Divorce and Dissolution — Limitation of Actions — Acknowledgment of Debt — Promise To Pay — Property Settlement. The mere acceptance of the terms of a divorce property settlement which awards certain property subject to any valid outstanding encumbrances constitutes neither an acknowledgment of a debt nor a promise to pay a debt.
Nature of Action: Property subject to a mortgage was awarded to one spouse by a divorce decree. The mortgage holder brought an action on the note, and asserted the award as an acknowledgment and promise to pay the debt, thus removing the bar of the statute of limitations.
Superior Court: The Superior Court for Mason County, No. 12605, Robert J. Doran, J., on April 16, 1976, sustained the defense of the statute of limitations on the original debt and dismissed the action.
Court of Appeals: Holding that the generalized terms of a property settlement awarding property subject to encumbrances are not sufficiently specific to constitute an acknowledgment, the court affirms the dismissal.
Frank W. Payne (of Payne Verzani), for appellants.
John S. Lynch (of Lynch Lynch), for respondents.
The sole issue on appeal is whether a divorce decree's award to a wife of certain real property "together with the residence situated thereon as well as any obligation owing against said property" constitutes an "acknowledgment" or creates a new promise to pay, thus removing the bar of the statute of limitations to enforcement of the original promise. We hold the language creates neither an acknowledgment nor a sufficient promise to pay and affirm the trial court's order dismissing plaintiffs' action.
On August 15, 1968, Stanton Burnham and his wife, Norma, executed a demand promissory note and mortgage to Troy Burnham and his wife, Gladys. On July 31, 1973, Stanton and Norma were divorced and the decree entered in that proceeding awarded the mortgaged property to Norma, utilizing the language above quoted. No payments were made on the original debt, and Troy and Gladys brought suit on December 18, 1975. The trial court sustained a challenge based upon the statute of limitations and dismissed the action; hence this appeal.
[1, 2] In order to constitute an "acknowledgment" sufficient to remove the bar of the statute of limitations, there must be an express and clear admission of the debt; the acknowledgment must be absolute, unqualified and unconditional. 54 C.J.S. Limitations of Actions § 308 (1948). It has been said that the acknowledgment must be so clear that a promise to pay must necessarily be implied therein. Addison v. Stafford, 183 Wn. 313, 48 P.2d 202 (1935). In the instant case the language of the decree makes no mention of a specific or identifiable debt such as the plaintiffs' note, but is general, referring to "any obligation owing against said property." Such broad language is not sufficient from which to necessarily imply a promise on Norma's part to pay plaintiffs' note. Addison v. Stafford, supra.
In Byrnes v. Payne, 103 Wn. 260, 173 P. 1091 (1918), it was held that acceptance of a deed to property subject to an outstanding mortgage, the mortgage having been specifically excepted from the deed's warranties, was not such an acknowledgment as to interrupt or toll the running of the statute of limitations. To the same effect see Boyer v. Price, 45 Wn. 667, 88 P. 1106 (1907).
Plaintiffs argue that Zioncheck v. Hepden, 144 Wn. 272, 257 P. 835 (1927), and B-OK, Inc. v. Storey, 79 Wn.2d 387, 485 P.2d 987 (1971) support their claim that the decretal language constitutes a subsequent separate promise to pay an existing debt, and creates a new obligation which is not "outlawed" by the statute and which is enforceable by plaintiffs as third-party beneficiaries. Neither Hepden nor Storey, however, supports plaintiffs' position because each of those cases involved an actual subsequent promise (albeit to a third person) to assume and pay a specific original indebtedness. In the instant case there is no such promise; there is only an acceptance of property subject to any valid outstanding encumbrance.
In any event RCW 4.16.280 requires that, in order to take a case out of the operation of the statute of limitations, the acknowledgment or promise must be in writing and must be signed by the party to be charged. Here, Norma did not sign the decree. The statutory need for a signed writing also disposes of plaintiffs' contention that they should have been permitted to prove the oral understanding between Stanton and Norma upon which the property division in the decree was apparently predicated.
Judgment affirmed.
PETRIE, C.J., and PEARSON, J., concur.