Opinion
05-23-1856
TAZEWELL'S ex'or v. WHITTLE'S adm'r.
Grattan, for the appellant: Stanard, for the appellee:
1. Any thing in an answer which will apprise the plaintiff that the defendant relies on the statute of limitations is sufficient, if such facts are stated as are necessary to show that the statute is applicable.
2. In a bill by creditor of testator against executor and legatee, the latter relies upon the statute of limitations in his answer. This is sufficient to protect the estate from a decree against the executor.
3. The plaintiff having stated in his bill that his debt was evidenced by deed, if it appears in the progress of the cause that it was by parol, the executor may set up the defense of the statute by exception to the commissioner's report.
4. That the creditor has furnished the executor, at his request, with a statement of his debt which the executor does not object to, will not remove the bar of the statute.
5. To take a debt out of the statute the acknowledgment of an executor must be express. And quæ re, if there must not be an express promise to pay.
6. A charge in a will for the payment of debts will not revive a debt barred by the statute at the death of the testator.
7. If the creditor relies upon a charge in a will to prevent the operation of the statute, it is for him to show that the testator died before his debt was barred.
8. Though a creditor's debt is evidenced by deed, yet where there has been gross laches in its prosecution, and the account cannot be settled without injustice to the estate of the deceased debtor, a court of equity will not give the creditor relief.
In June 1825 Fortescue Whittle, as administrator of Conway Whittle deceased, filed his bill in the late Richmond chancery court against William Tazewell, surviving executor of Littleton Tazewell deceased, in which he stated, that on the 24th of March 1803 his intestate let by deed a tract of land in the county of James City called Piney Grove to Littleton Tazewell, to hold from that time until the end of the year 1810; for which Tazewell the lessee convenanted to pay him for the remaining part of the year 1803 one hundred and sixty-six dollars and sixty-six cents, and during the residue of the term an annual rent of three hundred and thirty-three dollars and thirty-three and one-third cents; and that the lessee took possession of the land and held it until the lease expired. That at the same time his intestate sold and delivered to Tazewell personal property consisting of horses, cattle, sheep, hogs, implements of husbandry and other articles, for which Tazewell covenanted to pay him one thousand two hundred and seventy-seven dollars and six cents. And that it was agreed that the lessee should retain four hundred dollars for the purpose of making certain improvements upon the farm. That the parties were relations and intimate friends, which induced Tazewell to expect and ask for time to comply with his contract; and the same consideration induced Conway Whittle to grant it; so that for rent at the death of the latter, there was due to him from Tazewell two thousand one hundred dollars, exclusive of interest. That on account of the amount due for the purchase of the property sold to Tazewell nothing was paid until 1810, when two payments were made which reduced the amount due on that account to three hundred and sixty-one dollars and seventy cents, with interest from the 8th of August 1810.
The bill, after stating the death of Littleton Tazewell, and his having left a will charging his real estate with the payment of his debts, and the qualification of his widow and William Tazewell as his personal representatives, sets out a correspondence between William Tazewell and Conway Whittle, and also a correspondence between said Tazewell and the plaintiff, in relation to this debt due from Littleton Tazewell to Conway Whittle. That he supposed that the debt was due by parol until after 1821, when he instituted an action at law to recover it; and when he learned for the first time, that the lease of the land and the sale of the property was by deed. That he therefore dismissed his action at law, being advised that he could not there find redress. That the deed had been lost, but that it was probably executed in duplicate, and if so, it was probable that one of the duplicates was among the papers of Littleton Tazewell.
The executor William Tazewell was called upon to answer the bill fully and particularly. And the prayer of the bill was for a settlement of the executor's accounts, and the payment of the amount due with interest: And if the personal estate was not sufficient for the purpose, that the real estate of Littleton Tazewell, which had been subjected by his will to the payment of his debts, might be sold for that purpose.
William Tazewell answered the bill. He objected to the jurisdiction of the court; and submitted, whether the court would enquire into the justness of a demand which had been standing upon an open account for about twenty years; and whether even should the statute of limitations not bar the claim, it might not be esteemed a stale account, especially as the same, if due at all, was due more than five years before the death of Littleton Tazewell. He admitted that the estate called Piney Grove in the county of James City, was rented by Conway Whittle to Littleton Tazewell; but at what time this was done, for what period, or on what terms, he did not know, and called for strict proof. He denied that Littleton Tazewell had ever consented for the sum of four hundred dollars to improve the Piney Grove estate to the extent that he did improve it. He said that the plantation had been unoccupied for many years; that the dwelling-house had been burned down; only one negro-house was standing, and that in so old and shattered a condition that it was not worth repairing; and the fencing entirely rotten or removed. Instead of this state of things, when the plantation was returned to Conway Whittle, beside other valuable improvements Littleton Tazewell had built on it at his cost, a good dwelling-house with two rooms on each floor and a brick chimney at each end, and a large well built barn, which together could not have been worth less than two thousand dollars.
He further stated that when he wrote the letters exhibited by the plaintiff he was acting as the agent of Mrs. Tazewell; that they supposed, as a claim had been made, that the plaintiff had some documents to sustain it; and on which if any thing was due, it was very inconsiderable, as Littleton Tazewell had been often heard to say, that on a settlement of accounts with Conway Whittle there would be little or nothing due on either side. That it was true he did request the plaintiff to furnish a statement of what appeared to be due by any documents in his hands; but that though a statement was furnished no proof of its accuracy or any documents accompanied it, or had ever been furnished.
He stated further that he knew nothing of the deed of lease. It had never been in his possession, nor did he believe that Mrs. Tazewell ever had it in her possession. And he called for proof that it ever existed, and of its contents and stipulations.
The plaintiff filed with his bill a letter from Littleton Tazewell to Conway Whittle, dated " Williamsburg, July 26th, 1809," in which he said, " I have experienced considerable uneasiness at not having been able to pay your claim against me for articles purchased at P. Grove. Until the last year I made scarcely any thing for market. By the end of this year I trust it will be in my power to settle with you without selling any other property, such excepted as can be spared conveniently. Mr. Tyler has talked of purchasing the plantation, in which case I shall have no difficulty in selling to him the stock, & c. on the place. Provided you can sell without a sacrifice, I think it will be advisable. Lands generally are not benefited by being leased; though that rule does not hold as relates to my lease."
The account of the personal property sold which was filed with the bill contained credits for two payments made, one for six hundred and fifty dollars made on the 30th of July 1810, and the other for the like sum made on the 8th of August of the same year.
The plaintiff also filed with his bill two letters of William Tazewell, one to Conway Whittle, dated the 24th of July 1816, in which he says, " You will oblige by forwarding a statement of your claim on the estate of L. Tazewell deceased to the executrix at Williamsburg." He expresses the opinion that the estate will be ample to pay all the debts, and concludes by saying, " All that is now asked of the creditors is that they will not compel a sacrifice of the property."
On this letter is an endorsement by Conway Whittle, stating that it had been answered on the 30th of July 1816, stating that he was about to start to the springs, and on his return would furnish the amount; and that he felt disposed to accommodate the executors with any reasonable time to enable them to make the most of the property.
The other letter was to Fortescue Whittle, and dated at Richmond, 30th November 1819. After acknowledging the receipt of a letter from Whittle, he says, that Mrs. Tazewell writes that she can find no documents establishing debits against your late brother, except mechanics' bills and receipts for improvements made at Piney Grove. " She did not fail to express her sensibility of the indulgence that had been extended to her by the representatives of your brother. You will oblige by furnishing a statement of what appears to be due from any documents in your hands."
It does not appear with certainty when Littleton Tazewell died; though William Tazewell states in a note addressed to the commissioner in May 1829, that he died in November 1815. His will was admitted to record on the 27th of November of that year, and by it he gave his executors power to sell his real estate for the payment of his debts.
On the 13th of January 1827 a decree was made in the cause directing the defendant William Tazewell to settle his administration account. At this time no evidence as to the deed of lease, or its terms, or of the property sold, had been filed. In the month of February several depositions were taken by the plaintiff. The only witness who proved the existence of the deed was Charles Z. Abrahams. He stated that there was a deed of lease which was executed, as he thought, in the month of May 1804. That he saw both Whittle and Tazewell execute it, and that himself and two others attested it. The last he saw of it, it was in the hands of Whittle. He was inclined to think the lease commenced in 1804; did not remember how long it was to continue; and that the rent reserved was about ninety pounds per annum.
The witness stated further that Tazewell was to be allowed for the buildings he put upon the plantation. That it was in a wretched condition, having little or no fencing around it, nor any building of any description except an old log house. That the witness did the carpenters' work of a dwelling-house on the place, and finished a dairy, for which he received from Littleton Tazewell and the executor one hundred and eighty-nine pounds, eight shillings and one penny. This did not include materials, or any other than the carpenters' work. He stated further that a smoke-house and a large barn were built on the place.
There were other witnesses, one of whom aided to build the barn, who thought that the lease commenced in 1803, and that the rent was one hundred pounds a year. It was very certain that it terminated with the end of the year 1809; and the only witness who spoke of the period of its existence fixed it at six years.
There was but one witness who spoke of the property purchased by Tazewell from Whittle. He stated that he was building a barn on the place. He thought Tazewell took possession in 1803; and he mentions a number of horses, oxen and implements of husbandry, which were received from Whittle by Tazewell; but according to his estimate of their value, they did not amount to one thousand dollars.
In April 1829 the commissioner issued a notice that he would proceed on the 25th of May to execute the order of the court directing the settlement of the executor's accounts; and in January 1834 he made his report, showing a balance in favor of the executor. This report, though certainly very defective, was not excepted to by the plaintiff until February 1846.
In 1842 the plaintiff amended his bill, and made William O. Goode, who had married the only child of Littleton Tazewell, a defendant, and he revived the suit against Edward S. Gay, executor of William Tazewell who had died previously.
Gay answered, disclaiming all knowledge of the plaintiff's claim, referring to the answer of his testator, and relying upon all the grounds of defense therein set up. Goode also answered in 1843, setting up the statute of limitations, if there was no deed, objecting that no sufficient excuse had been shown for the failure to produce it, and no affidavit made that it was lost; and also objecting that the court had no jurisdiction of the cause.
In February 1846 the plaintiff filed an affidavit that he had not been able to find the deed of lease among the papers of Conway Whittle; and did not know what had become of it. And in July following the cause came on to be heard, when the court made an order directing one of the commissioners of the court to take an account of the moneys due from Littleton Tazewell to Conway Whittle, under the contracts of lease and sale in the bill mentioned.
In January 1848 the commissioner made his report, in which he stated the amount due on the lease on the 31st of December 1809, at one thousand four hundred and seventy dollars and thirty cents of principal, and two hundred and six dollars and two cents of interest; and the amount due on the 8th of August 1810, for the property purchased, at the sum of four hundred and sixty-three dollars and thirty-two cents.
In 1852 the defendant Gay filed various exceptions to this report, and especially relied on the statute of limitations as a bar to so much of the claim as related to the purchase of property.
The report of the executor's account, made in the case of Saunders v. Tazewell's ex'or, was by consent filed in this case. That report had been twice recommitted, and there were numerous exceptions to it. It stated an amount due from the executor William Tazewell sufficient to pay the debts in both cases, if all the exceptions of the defendant were overruled.
In February 1853 the cause came on to be finally heard with the case of Saunders' ex'or v. Tazewell's ex'or, when the court overruled all the defendant's exceptions to the report of the plaintiff's debt, and having had a special statement made showing the amount of the debt due to be, on the 1st of January 1853, seven thousand and sixty-five dollars and fifty-five cents, made a decree in favor of the plaintiff for that amount, with interest on one thousand nine hundred and thirty-five dollars and sixty-two cents, from the 1st of January preceding till paid; to be paid by the defendant Gay out of the assets of his testator in his hands to be administered. From this decree Gay applied to this court for an appeal, which was allowed.
There were a number of questions in the cause elaborately argued, which, as they are not involved in the decision of this court, will not be noticed further.
Grattan, for the appellant:
The claim of the plaintiff as stated in his bill arises from two sources, though both were stated to be embraced by the same deed. Let us first consider the claim arising out of the sale of property. This sale according to the bill was made in 1803, and was evidenced by deed, and amounted to one thousand two hundred and seventy-seven dollars and six cents.
Now it is very clear that none of the witnesses who have been examined in the cause, and that no paper filed, gives the slightest ground even to suppose that this sale was evidenced by deed. Abrahams who is the only witness who speaks of the deed, not only does not speak of it as embracing the sale of the property, but says that he knew nothing about the sale. Then is not this branch of the plaintiff's claim barred by the statute of limitations.
It is said that the statute of limitations is no defense unless it is pleaded; and further that the precise time which will bar must be stated in the plea. And the cases of Hickman v. Stout, 2 Leigh 6, and Hudson v. Hudson, 6 Munf. 352, are cited. The latter of these cases is relied on for the last branch of this proposition; and if the case is really an authority for it, then it stands alone in its requirements. Aylett v. Robinson, 9 Leigh 45; Harpending v. The Dutch Church, 16 Peters' R. 455, 486. Although the bill charges that the sale was by deed, yet the answer of William Tazewell refers to the statute; the answer of Goode who married the only daughter and principal devisee and legatee of Littleton Tazewell, sets it up; and the defendant Gay in his exceptions to the commissioner's report expressly relies upon it. Now although it is a general rule that the statute must be pleaded, yet where from the mode of proceeding this cannot be done, it may be relied on without plea. Thus in Shewen v. Vanderhorst, 4 Cond. Eng. Ch. R. 458, it was held that any party interested might set up the statute against a creditor in the master's office. So in Purcell v. Wilson, 4 Gratt. 16, an action of ejectment, the defendant was permitted to rely on the statute upon the trial in order to limit the recovery of mesne profits, as he had no opportunity to plead it. In Trimyer v. Pollard, 5 Gratt. 460, and Bell v. Crawford, 8 Gratt. 110, a plaintiff was held entitled to rely upon the statute on the trial, to defeat a set off; and in Jincey v. Winfield, 9 Gratt. 708, a party was allowed to set it up by exception to the report of a commissioner.
If, then, the statute of limitations has been properly relied on, the question is, Does it apply? According to the plaintiff's pretensions, the debt was due in 1803, and this suit was instituted in 1825. Unless, therefore, the plaintiff can show something which will take the case out of the operation of the statute, it must bar his recovery. But there is nothing in the record which can have that effect. Even if the letter of Littleton Tazewell of July 26th, 1809, or the two letters of William Tazewell in 1816 and 1819, were acknowledgments of the debt sufficient to remove the bar of the statute, still the suit was not brought within five years from the date of the latest of these letters. But the letters of William Tazewell are wholly insufficient for that purpose. They, in fact, admit no debt; and certainly not this claim on account of property sold to Littleton Tazewell. It does not appear that he knew that there had been such a purchase. Whatever may have been the case formerly, certainly at the present day these letters are wholly inoperative to take the case out of the statute. On this point the court is referred, without comment, to the cases of Bell v. Morrison, 1 Peters' R. 351, 360-1-2; Butcher v. Hixton, 4 Leigh 519; Farmers Bank v. Clarke, Id. 603; Aylett v. Robinson, 9 Leigh 45; Sutton v. Burrus, Id. 381; Bell v. Crawford, 8 Gratt. 110, 116-17-20.
But further. If these letters were sufficient in the case of a debtor to revive his own debt, they are not sufficient in the case of an executor to revive the debt of his testator. In such a case there must be an express acknowledgment of the debt, and as it would seem, an express promise to pay. Braxton v. Harrison, 11 Gratt. 30, 56, 57; Tullock v. Dunn, 21 Eng. C. L. R. 478. Indeed, although an executor may revive a debt by his acknowledgment made before the debt is barred by the statute, yet after a debt is barred it is not competent for an executor to revive it by any acknowledgment. Braxton v. Harrison, supra; Thompson v. Peter, 12 Wheat. R. 565.
The only other ground which can be resorted to for the removal of the bar of the statute is the charge for the payment of debts in the will of Littleton Tazewell. It does not appear when he died, though William Tazewell states that he died in November 1815. If this shall be considered as evidence, then it is apparent that even admitting that the letter of Littleton Tazewell of July 1809, is a sufficient acknowledgment of the debt, yet that was more than five years before his death, and the debt was therefore barred when he died. But if the statement of William Tazewell is not evidence, then the burden being upon the plaintiff to remove the bar of the statute, he has failed to show that Littleton Tazewell died and the charge in his will took effect before the debt was barred.
Then will a charge in a will revive a debt barred by the statute? At one time this seems to have been supposed to be the law. Roane, J. in Lewis v. Bacon, 3 Hen. & Munf. 89; and that judge seems to have supposed that it extended even to personal estate. As to the latter point, it certainly is not the law here now. Braxton v. Woods, 4 Gratt. 25. And indeed the general question is now settled in the negative too firmly to admit of any further discussion of it. Burke v. Jones, 2 Ves. & Beame 275; Hargreaves v. Michel, 6 Madd. 326; Fergus v. Gore, 1 Sch. & Lef. 107; Roosevelt v. Mark, 6 John. Ch. R. 266, 293.
The second ground of the plaintiff's claim is the lease. This was by deed, and therefore the statute of limitations does not apply to it. The question, however, still arises, whether, under all the circumstances of the case, a court of equity will give the plaintiff a decree?
The counsel then went into an examination of the facts to show that there had been gross neglect on the part of the plaintiff, and that the account could not now be taken without doing great injustice to the estate of Littleton Tazewell. He referred to Carr v. Chapman, 5 Leigh 164; Hayes v. Goode, 7 Id. 452; Page v. Booth, 1 Rob. R. 161; West v. Thornton, 7 Gratt. 177; Smith v. Thompson, Id. 112; Hillis v. Hamilton, 10 Id. 300; Crawford v. Patterson, 11 Id. 364.
Stanard, for the appellee:
The counsel for the appellant has correctly stated that the claim of the plaintiff arises from two sources; one the lease of the land, and the other the sale of the property. And in the first place, let us consider the questions connected with the sale of the property.
The letter of Littleton Tazewell, written in July 1809, is conclusive to prove a sale of property by Conway Whittle to Tazewell, and that the purchase money of that property was still due at the date of that letter. There are moreover witnesses who prove the property sold, which may well be supposed to have been sold for the sum stated in the plaintiff's bill. But if there was doubt upon this point, there can be none on the proposition that the defendant, if he relies upon the credits stated in the account filed by the plaintiff with his bill, must take that account altogether; and therefore if the defendant is to be credited for the payment of one thousand and three hundred dollars in 1810, he must be charged with the sum of one thousand two hundred and seventy-seven dollars and six cents in 1803. Robertson v. Archer, 5 Rand. 319.
But the principal reliance of the defendant as to this part of the plaintiff's claim is the statute of limitations. To entitle a party to the benefit of this defense, he must plead it or rely upon it in some form in his pleadings, and the time prescribed by the statute should be particularly pleaded or relied on. Hudson v. Hudson, 6 Munf. 352; Hickman v. Stout, 2 Leigh 6. Then the first question is, whether the statute has been sufficiently pleaded; and that question is clearly settled in the negative by a reference to the defendant's answer.
It is insisted on the other side that the defendant was entitled to set up the defense of the statute by an exception to the commissioner's report, and that such an exception had been taken to the report in this case. The report in this case was made in 1848, and during the whole time that the case was before the commissioner, it does not appear that the defendant attended him, and certainly no such objection was taken before him; and in fact it was not taken in court until 1852. Now if this defense of the statute may be set up in this mode, it must be done before the commissioner, so that the plaintiff may have an opportunity to repel it by proof.
But if the objection of the statute is properly taken, then the next question is, Does it constitute a bar? We have the letter of Littleton Tazewell in July 1809 admitting the debt, and we have the payments made by him and credited in the account as late as August 1810. And we have the death of Littleton Tazewell and his will admitted to probat in November 1815 creating a trust for the payment of debts.
In considering the question whether the trust of the will for the payment of debts will repel the bar of the statute in this case, we should look to the law as it was then understood and expounded; and clearly at the time of the death of Littleton Tazewell the trust of his will would have repelled the bar of the statute to the extent of the trust subject, though the debt was barred at his death. Lewis v. Bacon, 3 Hen. & Munf. 89. Judge Roane went even further, and held that the debt was revived to the fullest extent. It is true that such is not now the doctrine of the courts; Burke v. Jones, 2 Ves. & Beame 275; but the question is, what was the law of Virginia in 1815, not what it is now.
But take the doctrine as stated in Burke v. Jones, supra, as the law of this case. We show that in August 1810 our debt was admitted to be due by Littleton Tazewell, and that he then made a payment upon it; and we show his will admitted to probat in November 1815, creating a trust which it is conceded prevents the running of the statute against all debts not then barred. Having done this, we have made out our case, and it is for the other side to show that the debt was barred at the time. The party pleading the statute must bring himself within it.
If the debt has not been revived by the will, has it not been revived by the acts of the executor. It is said by the counsel for the appellant that an executor cannot revive a debt barred by the statute. In this, however, he is mistaken. Baxter v. Penniman, 8 Mass. 134; Emerson v. Thompson, 16 Mass. 429; Northcutt v. Wilkinson, 12 B. Monr. R. 408. An admission by an executor will take a case out of the statute, when such an admission made by the debtor would have that effect. There is some difference in the English cases where there is more than one executor, and the admission is by one. But in this case the executors were acting together. Both the letters of William Tazewell show that he was acting for both, and the last was written after an examination of the papers of their testator with reference to the plaintiff's claim. This letter, too, was answered, and the account asked for furnished, as admitted by William Tazewell's answer; and that was never objected to until this suit was commenced. None even of the modern cases would reject this evidence as an admission of the debt sufficient to revive it. Ault v. Goodrich, 3 Cond. Eng. Ch. R. 740; Smith v. Poole, 35 Eng. Ch. R. 16; Townes v. Birchett, 12 Leigh 173.
The counsel then went into an examination of the facts of the case, and endeavored to maintain that it was not a case in which the court would refuse relief. He referred to Baker v. Morris, 10 Leigh 284.
MONCURE, J.
The debt for which the decree in this case was rendered consists of two parts; first, a balance claimed to be due for personal property sold by Conway Whittle to Littleton Tazewell in March 1803; and secondly, a balance claimed to be due for rent of a tract of land called Piney Grove, leased by said Whittle to said Tazewell from that time until the end of 1809.
First: As to the balance claimed on account of the sale of personal property. This debt was due by parol contract. The original cause of action accrued in 1803 or 1804. The suit was brought in 1825. It is of course barred by the statute of limitations; if the appellant had a right to avail himself of that defense, and if the debt has not been taken out of the operation of the statute.
It is objected that the appellant had no right to avail himself of the statute; not having relied on the same by plea or answer. It is certainly true, as a general rule, that this defense must be made by plea or answer: and the rule applies as well to a court of equity as a court of law. If this case comes under the rule, I think the defense was sufficiently made by answer. The same strictness of pleading is not required in equity as at law. It is not common to plead the statute specially or formally in equity; but only to rely upon it, in general terms, in the answer. The only reason for requiring the defense to be made by plea or answer is that the plaintiff may have an opportunity, if he can, to take the case out of the operation of the statute. Any thing in an answer which will apprise the plaintiff that the defendant relies on the statute will be sufficient, if such facts be averred as are necessary to show that the statute is applicable. In this case the executor of Littleton Tazewell in his answer submits to the court, " Whether, even should the statute of limitations not bar the claim, it may not be esteemed a stale account, especially as the same, if due at all, was so more than five years before the death of the testator." This plainly shows that if the statute should be a bar to the claim, the respondent intended to rely upon it. And the facts necessary to sustain the defense are here set forth. In this respect the case differs from that of Hudsons v. Hudson's adm'r, 6 Munf. 352. It is certainly an informal mode of pleading the statute: but proceeded no doubt from the fact that the plaintiff had alleged the debt to be due by specialty; to which of course the statute would not have applied. Again: the defendant Goode expressly and formally relies on the statute in his answer; and as he, in right of his deceased wife, is sole residuary legatee of Littleton Tazewell, his defense enures to the benefit of the executor. In Shewen v. Vanderhorst, 4 Cond. Eng. Ch. R. 458, a creditor applied, under the common decree in an administration suit, to prove a debt which was barred by lapse of time; and the executors refusing to interfere, the plaintiff a residuary legatee, insisted on setting up the objection of the statute: Held, that it was competent for the plaintiff or any other party interested in the fund to take advantage of the statute, notwithstanding the refusal of the executors. In this case the executor, instead of refusing, manifested his intention to rely on the statute if it should be applicable.
But I do not think this case comes under the general rule. The plaintiff averred in his bill that the debt was due by specialty; which was alleged to be lost. It afterwards appeared that the debt was not due by specialty, but by simple contract: or at least that was the presumption from the absence of any proof on the subject. Until then, it did not appear that the statute afforded a bar to the claim. The proper mode of making the defense, therefore, was by exception to the commissioner's report of the claim; which exception was accordingly taken.
The appellant then had a right to avail himself of the statute; and the next question is, Whether the debt has been taken out of its operation? The counsel for the appellee contended that it has; 1st, by the will, which charges the whole estate of the testator with the payment of his debts; and 2dly, by a new promise or acknowledgment, made by the personal representatives or one of them, within five years before the institution of the suit.
As to the charge created by the will. It raises no trust in regard to the personal estate; and is merely inoperative, so far as that is concerned. It cannot therefore prevent the statute from being a bar to a suit brought to obtain payment of a debt out of the personal estate. Jones v. Scott, 4 Cond. Eng. Ch. R. 413; S. C. 4 Clarke & Fin. 382; Brown's adm'r v. Griffiths, 6 Munf. 450; Braxton v. Wood's adm'r, 4 Gratt. 25. But the charge creates a trust in regard to the real estate. Formerly it was supposed that such a trust embraced all debts of the testator, whether barred or not by the statute at the time of his death. But since the decision of Burke v. Jones, 2 Ves. & Beame 275, it has been considered to be well settled that a debt barred at the time of the testator's death, is not revived by such a charge, in regard to real any more than personal estate. The able judgment of Sir Thomas Plumer in that case, as Ch. Kent has said, is well founded upon principle and upon the authorities, and puts an end to the question. Roosevelt v. Mark, 6 John. Ch. R. 266. See the principles stated and the cases collected on this subject in 1 Rob. Pr. new ed. p. 566-571. " The doctrine, then, (in the language of that writer,) is narrowed down to this, that where there is a devise of real estate for the payment of debts, there is, as to the proceeds of such real estate, a trust created (according to Lord Redesdale's opinion) for those creditors whose debts, at the testator's death, were not barred by the statute; and after that event the statute does not so run as to affect the claim of those creditors upon these proceeds." It is unnecessary to determine the construction and effect of the provision on this subject in the Code, p. 592, § 9, as it does not apply to this case.
In Lewis' ex'or v. Bacon's legatee, 3 Hen. & Munf. 89, it was held that a debt barred at the time of the testator's death was, to some extent, revived by such a trust. But that case was decided in 1808, before the decision of Burke v. Jones, and ought not to be considered as settling the law of this state in opposition to the sound doctrine of the latter case. It was decided by three judges, who differed among themselves and made a compromise decree; and was decided at a period when the statute was almost entirely frittered away by the course of adjudication here and elsewhere. A striking illustration of this is afforded in the opinion of Judge Roane, who says, " It has been established, (and if it has not it ought to be,) that an advertisement by a debtor notifying all those who have any just debts owing to them, that they may apply at such a place and get payment, is such an acknowledgment as will bring a debt out of the statute." Id. 109. He was for considering the debt revived as to the personal as well as the real estate.
Then was the debt barred by the statute at the time of the testator's death? There is nothing in the record to show the precise period of his death; except the statement made by his executor and returned with Commissioner Green's report, from which it appears that he died in November 1815; in which month also his will was admitted to probat. Regarding that as the period of his death, the debt in question was barred, in any view which can be taken as to the time when the cause of action accrued; whether it was in March 1804, when it is said the debt first became due, or July 26, 1809, the date of his letter to C. Whittle, or August 8, 1810, the date of the last credit given on account of the debt. But it was contended (and perhaps properly) that there is no sufficient evidence of the period of his death, or that it happened within five years after the cause of action accrued. Concede this, and still it does not help the objection to the bar of the statute. The appellant relies on the statute; which is certainly a bar, unless the claimant can show something which will take the case out of its operation. The burden of doing this devolves on the latter. He seeks to do it by producing the will. But that is not enough; as the will was admitted to probat more than five years after the cause of action accrued. He ought further to have proved, if he could, that the testator died within five years after the cause of action accrued. This he has not done, and therefore he has failed to repel the bar of the statute by means of the will.
As to any new promise or acknowledgment by the personal representatives, or either of them. The debt, as we have seen, was barred at the time of the testator's death; and if the counsel for the appellant was right in maintaining that a personal representative cannot revive such a debt, then there is an end of the question. But without expressing any opinion upon that point, and conceding, so far as this case is concerned, that such a debt may be revived by a personal representative, let us enquire whether this debt has been so revived.
The letters of W. Tazewell of the 24th of July 1816, and 30th of November 1819, are plainly insufficient, according to all the recent authorities, to revive the debt. Even if they were sufficient; more than five years elapsed between the date of the last, and the institution of the suit; so that the debt was then again barred, unless in the mean time revived by some other promise or acknowledgment. The only evidence of any such promise or acknowledgment is the fact admitted in the answer of W. Tazewell; that, in compliance with the request contained in his letter of the 30th of November 1819, Whittle would furnish a statement of what appeared to be due from any documents in his hands, " a statement was furnished, but no proof of its accuracy or any documents accompanied it, and none have been furnished to this day." This fact, whether taken by itself, or in connection with the letters, cannot amount to such a promise or acknowledgment as will take the debt out of the statute. The only authority relied on to give it that effect, is Townes v. Birchett, 12 Leigh 173; decided by two judges in a court of three, and of course not a binding authority. The majority, Judges Tucker and Cabell, were of opinion that the rule, that " an account current rendered by one party to another, received and held without complaint or objection, shall be deemed a stated account," is not confined to accounts rendered by merchant to merchant of mutual dealings between them as merchants. The third judge, Allen, was of opinion that the rule is so confined. Whether it be so or not, it cannot apply to this case; in which an account current is not rendered by one party to another, of transactions of which they are both cognizant; but in which an account is rendered against the estate of a decedent to his personal representative, wholly ignorant of the nature or amount of the debt. A promise by the executor to pay the debt cannot be inferred from his receiving and holding the account without objection; and more especially, if the debt be barred by the statute. If an executor can revive a debt so barred, he can only do it by an express promise; or, at least, by such an express acknowledgment as plainly implies a promise to pay the debt. Indeed, in Tullock v. Dunn, 21 Eng. C. L. R. 478, Chief Justice Abbott said, " As against an executor, an acknowledgment merely is not sufficient; there must be an express promise." See also 1 Rob. Pr. new ed. 575. But even if the statement rendered could be considered as an account stated, and sufficient to revive the debt, it does not appear that it was rendered within five years before the institution of the suit. In every view of the case, therefore, the claim which arose from the sale of personal property, is barred by the statute.
Secondly: As to the claim for rent. The complainant alleged in his bill that the land was leased by deed on the 24th of March 1803, to be held from that time until the end of 1810, at the rent of one hundred and sixty-six dollars and sixty-six and two-thirds cents for the remaining part of 1803, and three hundred and thirty-three dollars and thirty-three and one-third cents per year for the residue of the term; that it was agreed that the lessee should retain four hundred dollars for the purpose of making certain improvements on the land; and that the deed contained a covenant for the payment of the rent, but, by some accident or misfortune unknown to the complainant, had been lost: And he claimed the whole amount of the rent, subject only to a credit for the four hundred dollars. W. Tazewell in his answer admitted that the land was rented of C. Whittle by L. Tazewell; but at what time, for what period, or on what terms, he did not know, and called for the strictest proof. He denied " that L. Tazewell ever consented, for the sum of four hundred dollars, to improve the Piney Grove estate to the extent which he did improve it. For the plantation had been unoccupied for many years; the dwelling-house had been burnt down; only one negro-house was standing, and that in so old and shattered a condition that it was not worth repairing, and the fencing entirely rotten or removed. Instead of this state of things when the plantation was returned to C. Whittle, besides other valuable improvements, L. Tazewell had built on it at his cost, a good dwelling-house with two rooms on the floor, and a brick chimney at each end, and a large well built barn, which together could not have been worth less than two thousand dollars." He denied all knowledge of the deed of lease, and demanded proof that it ever existed, and of its contents. The evidence shows that a deed of lease was executed, but does not show what were its contents. It shows that the annual rent was probably one hundred pounds, though Abrahams, the witness mainly relied on to sustain the claim, thinks the rent was ninety pounds. It further shows that the lease probably commenced in 1803, though Abrahams thinks it was in 1804; and that it determined at the end of 1809 instead of 1810, as alleged in the bill. There is no evidence of the loss of the lease, or of any search having been made for it. Abrahams, who proves its execution, thinks he last saw it in possession of C. Whittle, and advised L. Tazewell to take a copy; but does not know whether he did or not. There is no evidence that L. Tazewell agreed to make the improvements for four hundred dollars. On the contrary, Abrahams proves that the plantation was in a wretched condition, having little or no fencing around it, nor any building upon it except an old log house; that during the term he built a dwelling-house and smoke-house, and completed a dairy, and other workmen built a very substantial barn; and that under the agreement between C. Whittle and L. Tazewell, the cost of building all the said houses was to be deducted from the rent. His bill alone amounted to six hundred and ninety-six dollars and thirty-five cents; and included no charge for materials. It does not appear what was the cost of materials, nor what the cost of the barn and other improvements made upon the land. There is reason, however, for believing that the whole cost of improvements made by L. Tazewell under the agreement was equal, or nearly so, to the whole amount of the rent, and that at the termination of the lease he owed little or nothing on account of rent. That this was the opinion of the parties, or at least of L. Tazewell, is manifest from the tenor of his letter to C. Whittle of July 26, 1809, in which he says, " I have experienced considerable uneasiness at not having been able to pay your claim against me for articles purchased at Piney Grove," excuses himself for not having done so, and expresses a hope that he would be able to do so by the end of the year; but makes no allusion whatever to any debt on account of rent. Is it credible that he would not have made such an allusion if he had owed all the rents (except four hundred dollars for improvements) according to the pretension set up in this suit; or even if he had owed any material part of them? He lived six years after the date of that letter, and C. Whittle survived him; and yet it does not appear, and is not pretended, that he ever admitted his liability, or that application was ever made to him for any thing, on account of rent. Nor was any account for rent ever rendered to him or his representatives until after W. Tazewell's letter of November 30th, 1819. If C. Whittle intended to make any claim on account of rent, the circumstances required him to make it promptly, and to prosecute it with diligence. Instead of doing so, no claim was asserted during the lives of the parties, nor until 1819, nor any suit brought until 1821; when, it seems, a suit at law was brought, which was pending two or three years and then dismissed; the executor of C. Whittle having then, for the first time, discovered that the debt was not due by parol, as he had supposed, but by a specialty which had been lost. In 1825 this suit was brought in equity. In 1827 an order was made for the settlement of the account of L. Tazewell's executor. Afterwards, in the same year, for the first time, depositions were taken to sustain the claim. In 1829 the order of account was placed in the hands of a commissioner, whose report was not made until 1834; after which nothing further was done until 1841, when leave was obtained to file an amended bill, which was accordingly filed, but more than a year thereafter. In 1846 an order was, for the first time, made, to take an account of what was due from the estate of L. Tazewell to the estate of C. Whittle; and it was not until 1853 that the decree was made from which this appeal was taken. It would be difficult to excuse such gross laches in such a case. The excuse assigned for it is wholly inadequate for the purpose. A just account cannot now be settled. The proper parties to make the settlement are not in esse, but have long been in their graves. Their representatives know little or nothing about the facts; and even the original representatives of the alleged debtor have long since passed from the stage. There may or may not be something due. It is matter of conjecture merely; and the most probable conjecture is that nothing is due. I think we must so conclude; and, at all events, that no relief can now be given on account of the claim for rent.
For the foregoing reasons, I am of opinion that the decree ought to be reversed, and the bill dismissed with costs.
The other judges concurred in the opinion of MONCURE, J.
DECREE REVERSED.