Mann v. Cooper

2 App. D.C. 226, 1894 U.S. App. LEXIS 3225

Opinion

Mr. Chief Justice Alvey

delivered the opinion of the Court:

The three pleas may be treated as one, all being of the bar of the statute of limitations, with some variation in terms only. The question, therefore, is whether, in either of the replications, a sufficient reply is furnished to prevent or arrest the running of the statute of limitations as against the judgment, and thus to defeat the bar created by the statute, and pleaded as a defense to the action?

1. The statute of limitations of actions in force in this'District is the act of Maryland of 1715, Ch. 23. By the sixth section of that act it is provided, “ That no bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty whatsoever, except such as shall be taken in the name or for the use of our sovereign' lord the King, his heirs and successors, shall be good and pleadable, or admitted in evidence, against any person or persons of this province, after the principal debtor and creditor have both been dead twelve years, or the debt or thing in action above twelve years' standing."

Unlike the construction that has been placed upon the terms of this statute employed in the second section thereof, in regard to simple contract debts, the construction uniformly placed upon the terms employed in the sixth section, in regard to judgments, recognizances and specialties of various kinds,, owing to the peculiar force and prohibitory nature of the language employed in this latter section, has been different, and unyielding to circumstances that would remove the bar of the statute, as applied to simple contract debts. Hence, it has been uniformly held, that a mere acknowledgment of the debt due on judgment, or even an express promise to pay the same, will not arrest the running of the statute, or remove the bar, as against the judgment or specialty mentioned in the act; though such judgment or specialty may form the basis or inducement to a new express promise to pay, upon which an action may be maintained. Lamar v. Manro, 10 G. & J., 50; Young v. Mackall, 4 Md., 367. And so the payment of interest, or even part of the principal of the judgment debt, will not have the effect of avoiding the operation of the statute as applied to proceedings on the judgment to revive, or to recover on the judgment by action of debt. In the case of Carroll v. Waring, 3 G. & J., 491, it was held, that the payment of interest upon a bond was no avoidance of the bar of the act of limitations of 1715, ch. 23; nor would even an express acknowledgment of the debt revive the remedy upon a bond barred by that act. As we have seen, by the language of the statute, the case of an action of debt or scire facias upon judgment stands upon the same footing of an action upon bond or other specialty. And in the case of Mullikin v. Duvall, 7 Gill and John., 355, it was held, upon full and careful consideration, that a judgment cannot be revived by scire facias after a lapse of twelve years; and the mere fact of an outstanding fieri facias levied on lands, which remained unsold for want of buyers, did not form an exception to the act of limitations, which runs from the recovery of the judgment, or from the time that the judgment is executionable. In this case, it is not averred or pretended that the fieri facias that issued on the judgment;,.and was returned nulla bona, was ever renewed or continued so as to keep the judgment executionable, and more than sixteen years had elapsed from the return of the execution to the time of the commencement of the present proceedings on the judgment.

According to the common law, a judgment in a personal action, without special cesset executio, could be executed by process of execution only within a year and a day from its rendition; and after the lapse of that period, the remedy upon the judgment was by action of debt only. It was to remedy this defect in the mode of proceeding upon judgments, that the statute of Westminster 2 (13 Edw. I.), Stat. 1, ch. 45, was passed, which gave a scire facias to the plaintiff in personal actions to revive the judgment^ when he had omitted to sue out execution within the year and a day after judgment was obtained. But this remedy by scire facias is not exclusive; the plaintiff may still proceed, if he think proper, by action of debt on the judgment. 2 Tidd’s Prac., 1103.

The reason, say's Mr. Tidd, " why the plaintiff is put to his scire facias after the year is, because when he lies by so long after judgment, it shall be presumed that he has released the execution; and therefore the defendant shall not be disturbed, without being called upon, and having an opportunity in court’ of pleading the release, or showing cause, if he can, why the execution should not go.” 2 Tidd’s Prac., 1103; 2 Inst., 470. But it is further said, that this general rule, that the plaintiff cannot take out execution after the year, without a scire facias, must be understood with this restriction: " That when afieri facias is taken out within the year, and not executed, a new writ of execution may be sued out at any time afterwards, without a scire facias, provided the first writ be returned and filed, and continuances entered from the time of issuing it, which continuances may be entered after the issuing of the second writ, unless a rule be made upon motion, for the proceedings to remain in statu quo.” 2 Tidd’s Prac., 1104; Co. Litt., 290b; 2 Inst., 471. And this principle was referred to and applied in the case of Mullikin v. Duvall, supra.

It is clear, therefore, that nothing alleged in the first replication could have the effect of preventing or arresting the running of the statute against the judgment, and that the demurrer was properly held good as to that replication.

2. And so as to the second replication. It is conceded by this replication that the judgment debtor remained in the city of Washington from the date of the judgment, in October, 1874, until some time in June, 1875, during all of which time the judgment was executionable. The statute commenced to run from the date of the judgment, unless prevented by stay of execution, or the taking of some proceeding on the judgment that would have the effect of arresting the running of the statute; but, in this case, there is no such proceeding shown. The fieri facias that was issued in January, 1873, and returned in March of that year, was not effective, and it was not renewed, or in any manner continued. The judgment debtor was present in the jurisdiction at the time the cause of action, or right to execution on the judgment accrued, and continued subject to execution, or other proceedings on the judgment, for several months. thereafter. And such being the case, it is a settled principle, that when the statute of limitations once begiiis to run, no subsequent disability will stop or arrest its operation. It is said in the decisions that the statute will never attach or commence to run unless there be some person in being competent to sue,, but when that is the case, the legal bar to the recovery of the money on the bond or judgment will arise and become complete, unless legal steps are taken to enforce payment within the period prescribed by the statute. Ruff v. Bull, 7 H. & J., 15; Hogan v. Kurtz, 94 U. S., 773, 779; Harris v. McGovern, 99 U. S., 161, 168. But, in this case, there could have been no difficulty or impediment in keeping the judgment alive and executionable, down to the time of the death of the judgment debtor in 1879 — the particular date of the death in that year is not alleged. This could have been done, notwithstanding the absence of the judgment debtor, by simply issuing an execution within the year and a day, and, upon its return, having it regularly continued; or, if not in that way, by the issue of two successive writs of scire facias within the twelve years, and, upon two successive returns of nihil, obtaining judgment thereon of fiat executio. 2 Tidd’s Prac., 1092. The judgment for execution is, in legal effect, a new judgment, and the Statute of Limitations commences to run from its date anew. Mullikin v. Duvall, supra.

Clearly^ therefore, the second replication contains ño such averments of facts as are sufficient to arrest or defeat the operations of the statute of limitations, as a bar to the recovery on the judgment.

3. But a different question is presented by the third replication. In that, a contract founded upon a valuable consideration is alleged, for the perpetual surrender or waiver of the right to plead the statutory bar of limitations. And the question is, whether such replication, if supported by proof, would form an answer to the plea of the statutory bar of limitations, in a proceeding to revive, or to recover upon, the judgment.

Upon this question there is a considerable conflict of authority. It is certainly true, however, that a party may waive the defense of the statute of limitations, as he may waive several other statutory defenses, by omitting to plead or rely upon the same, and it is difficult to see why he may not, for a valuable consideration, agree to waive or abandon the defense of the statute altogether. This must be, however, upon valuable consideration, to entitle the plaintiff to insist upon the agreement as an estoppel. The third replication avers the agreement or contract to have been made long before the bar of the statute had become completed; and that is an important element in such a contract, for such contract may have been the inducement to the delay in enforcing the judgment until the lapse of the statutory period. Gardner v. M’Mahon, 3 Adol. & Ellis, (N. S.), 561, 566; Utica Ins. Co. v. Bloodgood, 4 Wend., 652; 13 Am. & Eng. Ency. of Law, 717.

In the case of Randon v. Toby, 11 How., 493, there was an agreement by a debtor to apply a certain portion of his crops towards the extinguishment of the debt, in consideration of further indulgence; and it was held, that such agree ment would take the case out of the -statute of limitations, and might be set up in avoidance of the plea of the statute, by way of estoppel upon the debtor. The Supreme Court of the United States, speaking by Mr. Justice Grier, said: “This agreement, being founded on a good consideration, and accepted by the plaintiff, became incorporated in the notes, and formed a part of the contract, by mutual consent. It extended the time of payment, and the statute did not begin to run till the extended time had expired. It operated also by way of estoppel in pais to a defense under the statute of limitations. Otherwise the defendant would gain an advantage by his own fraud,, or put the plaintiff to an action on the agreement. On one or the other of these principles, the doctrine of estoppel has its foundation. The plea of the statute is a breach of the agreement, and, to avoid circuity of action, it may be set up in avoidance of the plea. Moreover, the stipulation in this agreement forms a new promise on good consideration to pay the money, which has always been held as a sufficient replication to the plea of the statute of limitations.”

If the judgment debtor, for valuable consideration, did in fact, as alleged, agree to waive and surrender the statutory right to avail himself of the bar of limitations, and that the judgment creditor should have the right to enforce the judgment at any time until actually paid, it would be an act of bad faith, as well as a breach of the agreement, on the part of the defendant, representing the judgment debtor, after being indulged beyond the period of limitations, to seek to defeat the execution of the judgment by the plea of the statute. The principle of estoppel would seem to be clearly applicable in such case; and we are of opinion that the third replication should have been ruled good, and the demurrer thereto overruled. The judgment that was rendered on the pleadings for the defendant must be reversed, and the cause be remanded, that issue on the third replication be formed and tried.

Judgments reversed, with costs to appellant, and causes remanded.