#### Cleveland vs. Harrison and others.

An administrator Ras authority to sell or dispose of notes and mortgages belonging to the estate of the deceased, without any previous order of the probate . court for that purpose.

Part payment of a debt, within six years before the commencement of an action for its recovery, is such an acknowledgment that the debt is due as to take the ease out of the statute of limitations_Sec. 81, chap. 138, R. S., consid*671ered in connection with sec. *il*of the same chapter, has not altered the rule upon that subject.

A and B gave their joint and *several*promissory note, secured by a mortgage executed by B only. In an action to foreclose the mortgage, commenced more than six years after the maturity of the note, it was shown that A had, within six years before the commencement thereof, made a partial payment on the note. *KM,*that as the case was taken out of the statute so far as A was concerned, it was no defense to the action that the statute had run upon the debt so far as concerned the personal liability of B.

APPEAL from tbe Circuit Court for *Milwaukee*County.

Tbis action was commenced October 3d, 1860, to foreclose a mortgage dated March 8, 1854, given by *Charles Harrison*to secure a joint and several promissory note of the same date, executed by him and *Caleb*Harrison, payable six months from date, to the order of James Doyle. The complaint alleges that the note was indorsed and the mortgage assigned by Doyle to one Hibbard in January, 1855 ; that Hibbard indorsed and assigned them in March, 1855, to one Scott, who died on or before the 1st of October, 1855; that said Hibbard was duly appointed administrator of the estate of said Scott in this state, and certain other persons named were duly appointed administrators of said estate in Massachusetts ; that said Hibbard, as such administrator, assigned said mortgage and note to the administrators in Massachusetts, December 25, 1857; and that the latter, on the 1st of December, 1858, for a valuable consideration, “ sold and delivered said note and mortgage to the plaintiff,” who is the lawful owner and holder, &c. The complaint further alleges that the defendants paid interest on the note from time to time up to the 8th of March, 1860; and that *Caleb Harrison,*on the 4th of September, 1860, paid the plaintiff $100 on the note, and promised to pay the balance due.

The defendants *Charles*and *Caleb Harrison*answered: 1. That .the cause of action set forth in the complaint did not accrue within six years next before the commencement of the action. 2. That they admitted the making of the note and mortgage mentioned in the complaint, the assignment of them by Doyle to Hibbard, and by Hibbard to Scott in his lifetime, and the death of said Scott; and denied every other allegation of the complaint.

*672At tbe trial, tbe note and mortgage were produced in evidence, tbe note being indorsed by *Doyle*and Hibbard. were a]so indorsed upon it payments of interest from ¿jme time, tbe last being dated April 27, 1859, for interest due March 8, 1859. Tbe plaintiff then offered in evidence an assignment of said note and mortgage by Hibbard, administrator, &c., to tbe administrators in Massachusetts; to which the defendant objected “ for incompetency, and because the plaintiff bad not shown any order of tbe probate court, or any authority to said Hibbard, as administrator, to assign the note and mortgage.” Objection overruled. The plaintiff also called as a witness Newcomb Cleveland, to prove the alleged payment of $100 on the note by *Caleb Harrison.*The substance of his testimony is stated by the court. — The circuit court found the facts substantially as alleged in the complaint, and rendered judgment for the plaintiff.

*Cary & Pratt,*for appellants:

1. There was no evidence offered to show any authority to the administrators in Massachusetts to sell or assign the note and mortgage to the plaintiff, nor was any such assignment shown. An administrator has no power to dispose of such property, except by order of the probate court which appoints him. 2. The defendants were entitled to have their plea of the statute of limitations sustained, unless the payments of interest by the *Harrisons*before the six years had elapsed, and the payment of $100 by *Caleb Harrison*on the 4th ^of September, 1860, • had the effect of continuing or renewing the obligation. The parol promise made by *Caleb Harrison*on the 4th of September, to *pay*the note, is void. Sec 87, chap. 138, R. S. Sec 41, chap. 138, leaves the effect of payment of a part of the principal or interest to be governed, by the law as it was before the enactment of sec. 37. The statute of limitations is a statute of *repose,*founded on public policy, for the purpose of preventing the bringing of suits upon stale demands, after the evidence of a meritorious defense shall have been lost or scattered. 1 Peters, 360; *Pritchard vs. Howell,*1 Wis., 131; Ang. on Lim., 208. Under the law as it *673was prior to tbe enacting of secs. 37 and 41, cbap. 138, E. S., part payment must therefore be accompanied by an cal promise to pay the balance, to take the case out of the operation of the statute; and the payments made by the pellants, no evidence having been offered of such promise, did not have that effect. 3. These sections of the statute are taken from 9 Creo. IY, chap. 14, and the later decisions in England have been to the effect that part payment must not only be accompanied by a promise to pay the balance, but such promise must be in writing. *Wainman vs.*Kynman, 1 Exch., 118; *Willis vs.*Newham, 3 Y. & J., 519. 4. *Charles*Harrison, who alone gave the mortgage, cannot be deprived of this defense by reason of the payment made by *Caleb Harrison*alone, they being joint contractors. Sec. 42, chap. 138, E. S.

*Carpenter & Qridley,*for the respondent:

1. The proof shows a correct and legal transfer of the note and mortgage to the plaintiff. The note is indorsed in blank, and its production by the plaintiff is *prima fade*evidence of his title, and conclusive unless rebutted. The mortgage is but an incident to the debt, and no indenture of assignment was necessary to pass the title to it. *Em-mons vs. Howe,*2 Wis., 322; *Croft vs.*Bunster, 9 Wis., 503; *Cornell vs. Hichens,*11 Wis., 353; *Bice vs. Cribb,*12 Wis., 179; *Creen vs.*Hart, 1 Johns., 580. 2. The administrator has authority to sell and transfer personal property without the previous direction or authority of the probate court. *(Munteith vs. Bahn,*14 Wis., 210; *Williams vs. Ely,*13 Wis., 1) ; and in the absence of other proof, the presumption is that the law of Massachusetts in this respect is like that of Wisconsin. *Bape vs. Heaton,*9 Wis., 329. 3. The plaintiff’s right of action accrued prior to the enactment of sec. 87, chap. 138, E. S., and a promise in writing was therefore unnecessary. *Winchell vs. Hieles,*21 Barb., 448 ; S. 0., 18 N. Y., 558. 4. By sec. 41, chap. 138, E. S., the full force and effect of the payment of principal or interest was preserved as it existed prior to such statute, and if made within six years next after the maturity of the note, the statute would not run, and a written promise would not be *674necessary. *Pickett vs.*King, 84 BarbM 198. The facts of this case are fully within the law as decided in *Pritchard vs. How*ell, 1 Wis., 138. The mortgage was given to secure a joint and *several*liability, and if *Charles*Harrison, is discharged by operation of the statute, yet if *Caleb*by reason of promises and payments, is still liable on the note, the mortgage must still be held as security for *his*(Caleb's) *several liability*_

November 26.

*By the*Court,

Cole, J.

In *Ely vs.*Williams, 13 Wis., 1 and *Munteith vs.*Rahn, 14 id., 210, we have decided that an administrator has authority to sell and dispose of notes and mortgages belonging to the estate of the deceased, without any previous order of the probate court authorizing or directing him so to do, which disposes of the first point made on the brief of the counsel for the appellants. The only remaining question is that which arises upon the defense of the statute of limitations set up in the answer. The action is brought to foreclose a mortgage given by the appellant *Charles*Harrison, to secure the payment of a joint and several note executed by him and his brother *Caleb,*bearing date March 8th, 1854, payable six months from date, to the order of James Doyle, with twelve per cent, interest until paid. The mortgage bore even date with the note and was duly sold and assigned with the note in December, 1858, to the respondent. It appears that interest on the note was annually paid and indorsed on the note up to March, 1859. On September 4th, 1860, a payment of one hundred dollars was made on the note under the following circumstances, as stated by the witness Newcomb Cleveland. He says in substance, that in the spring of 1860, in behalf of the respondent, he called at the house, where *Caleb*resided, and demanded payment of the note and mortgage ; that *Caleb*was not present at the time, and *Charles*said he had nothing to do with the arrangement — that it belonged to his brother. Witness called again, and saw *Caleb*in the absence of Charles, and demanded payment of the note and mortgage. *Caleb*said it was not convenient for him to pay it at that time, but that he would pay the interest in a few days, and the principal on the first of September following. He told witness *675tbat be bad some money coming to bim from Hibbard at tbat time, and tbat be would meet tbe note and mortgage with tbe money wbicb be expected from tbat source. Witness called on *Caleb*on or about tbe 4th of September following, when be said be could not get bis money from Hib-bard until about tbe 15th of tbe month, and would pay it then. Witness told bim if be would give him $100 to apply on tbe note, be would wait until tbe 15th. *Caleb*said be would if he could get tbe money from Hibbard. They went together and saw Hibbard, *Caleb*saying to tbe latter be wanted bim to pay $100 on the note and mortgage in suit, and Hibbard gave witness bis check for tbe amount, wbicb was indorsed on tbe note. Afterwards when *Caleb*was called upon for payment, be declined making it, on tbe ground tbat witness bad no authority to receive it. Subsequently he and *Charles*interposed tbe statute of limitations as a defense to tbe suit for foreclosure of tbe mortgage. And the question in tbe case is, can that defense be sustained in view of tbe facts above stated? We are clearly of tbe opinion tbat it cannot. We suppose it is well settled by tbe authorities that a part payment of tbe debt within six years before tbe commencement of the suit, is such an acknowledgment or admission tbat tbe debt was due as to take tbe case out of the operation of tbe statute. We do not understand this to be denied even in England, where considerable discussion has arisen as to tbe correct construction to be given to tbe statute of 9 G-eo. IY, chap. 14, although tbe judges do not seem to have agreed in opinion as to what was proper evidence of payment under the act. In *Willis vs.*Newham, 3 Y. & Jer., 518, it was held tbat a verbal acknowledgment of tbe payment of a part of tbe debt by tbe defendant was not sufficient, but that there must be proof of actual payment by some one cognizant of the fact or by a writing such as tbe act requires. This decision has been followed in some other eases, although it has been declared tbat if tbe matter were *res integra,*any proof of payment would be held sufficient. *Maglin vs. O’Neil,*7 M. & Wellb., 531; *Eastwood vs. Saville,*9 id., 615.

In *Williams vs. Gridley*9 Met., 482, under a similar *676statute, tbe court refused to follow *Willis vs.*Newham, but said that tbe fact of payment was to- *be proved by*any evidence competent, according to tbe rules of tbe common law, to establish tbe fact, and of course might be shown by tbe verbal admissions of tbe debtor. There is no controversy however in this case about tbe fact of tbe payment of one hundred dollars in September, before tbe statute bad run; but tbe contest is as to what effect must be given to tbe payment, admitting it then to have been made. Tbe witness Newcomb Cleveland, in the testimony already referred to, clearly establishes tbe fact of tbe payment of a hundred dollars by *Caleb Harrison*at that time, and he stands un-controverted and unimpeached. This being so, even within the strict rule of *Willis vs.*Newham, the case is taken out of the operation of the statute. It certainly is, so far as the appellant *Galeb*is concerned, who, by making this payment when he did, not only recognized the debt to be due and unpaid, but further made a most distinct and positive promise to pay it at a future time. And it is claimed by the counsel for the respondent, that although this payment and promise were made by *Caleb,*yet *Charles*is equally bound by them, by reason of the fact that when applied to for payment he referred the party to his brother *Caleb.*It is said to *be*equivalent to an express direction by *Charles*to the witness, Newcomb Cleveland, to request *Caleb*to pay that which could have been and probably would have been, but for this direction, collected of him, and therefore that the payment and promise attached to him all their legal effects and consequences. It must be conceded that there is very great strength in this view of tbe matter, and it seems to be fully supported by *Winchell vs.*Hicks, 21 Barb. (S. C.), 448, and 18 N. Y. R., 558, which is strictly an analogous case. In tbe present aspect of this case, it becomes unnecessary to determine whether Charles would be bound by this payment and promise by *Caleb*or not. For it will be observed this suit is to foreclose a mortgage given to secure tbe payment of a joint and several promissory note. Now, admitting that *Charles*would not be liable to pay any deficiency which might exist, yet as the mortgaged premises are bound *677for tbe payment of a several as well asa joint indebtedness, they are consequently bound for tbe debt of *Caleb.*So it is no defense to this suit to say that tbe statute of limitations bas ran upon tbis debt as to the appellant *Charles.*It was further insisted that because section 37, cbap. 138, E. S., provides that no acknowledgement or promise shall be sufficient evidence of a new and continuing contract whereby to take a case out of tbe operation of tbe statute of limitations, unless the same is contained in some writing signed by tbe party to be charged thereby, therefore there must be a written promise to pay tbe balance in tbis case. It is very obvious what mischief tbis provision was intended to guard against and prevent. Under tbe statute as it stood prior to tbis enactment, it is well known that courts bad sometimes, out of hostility to it, held that any expressions of tbe debtor in respect to a stale demand, however equivocal, vague and indefinite, were evidence of a new promise to revive- tbe cause of action. And although that line of decisions was repudiated by this court in *Pritchard vs.*Howell, 1 Wis. R., 131, yet tbe legislature undoubtedly thought it safe, in order to guard innocent persons against tbe dangers of being entrapped in careless conversations and betrayed by false swearing — to provide that no promise should be sufficient to take a case out of tbe statute, unless evidenced by a writing signed by the'party making it. At tbe same time it was expressly provided that nothing in tbe chapter should alter, take away or lessen tbe effect of a payment of any principal or interest, but no indorsement or memorandum of any payment written upon any note, &c., was to be deemed sufficient proof of tbe payment go as to take the case "out of tbe operation of tbe statute. Section 41. Courts bad held with great uniformity, that a part payment was such an admission of existing indebtedness as revive tbe cause of action. It was deemed a safer ground to go upon than a mere promise or acknowledgment. *Van Keuren*vs. Parmlee, 2 Coms., 523; *Shoemaker vs.*Benedict, 1 Kernan, 176. As said in *Wyatt vs. Hodson,*8 Bing., 309, “ tbe payment of principal or interest stands on a different footing from tbe making of promises, which are often rash *678^ ^nterPrete(^) while money is not usually paid without deliberation; and payment is an unequivocal act, so little lia-tQ misconatruction as not to be open to tbe objection of an or^inary acknowledgment.” So while the legislature provided that nothing but a written promise should be sufficient evidence to take a case out of the statute, partial payments were to have the same effect as before. They are available as facts from which an admission of the existence of the entire debt and a liability to pay may be inferred. The counsel seemed to suppose that this rule bad been changed by the decision in *Pritchard vs. Howell.*But we do not so understand that decision. The case is very clearly distinguishable from the one under review. There an acknowledgment of the debt made after the statute had run, was relied on to revive the cause of action. And the court held that nothing but a clear acknowledgment of the debt and an unqualified promise to pay, which would be equivalent to a new cause of action arising within six years, would avoid the statute. There are some expressions in the opinion, to the effect that the statute was not one establishing a rule for presumption of payment, but was intended to be a positive prohibition against bringing a suit after a lapse of six years from the time the cause of action accrued, which may be open to criticism; still these expressions should be construed with reference to the point in judgment. There can bejuo doubt that *Pritchard vs. Howell*was rightly decided upon the facts before the court. It was sought to raise a promise by implication from the acknowledgment of the party that he was liable for the face of the note and interest after deducting the indorsement. The witness could not give the words of the party but the substance of the conversation. It was a species of evidence which, it has been often observed, should be received with great caution, on account of the liability to misconstruction and misstatement. And it was this very mischief that section 87 was intended to prevent, by requiring the new promise to be evidenced by a writing signed by the party. But there is nothing in *Pritchard vs.*Howell, when considered with reference to the *679facts before tbe court, wbicb is at all m conflict with tbe views expressed upon this case.

It follows that tbe judgment of foreclosure and sale must be affirmed.