The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-06-17

writing, TO extend the note one year.
This transaction was repeated, year after
year,-the creditor receiyinga payment.
and agreeing TO extend the note another
year,-until the note was barred by the
statute OF limitations. The bill in this
case was then filed by Perry and his
children, as distributes of his wife,
who died in 1881. 1t alleges that the
money lent to Beauchamp was her pro-
perty, and seeks to subject the land to
the payment of the debt. 1t is claimed
that these part payments took the debt
out of the statute of limitations, but
that even if the husband, as trustee, is
barred, the wife, as beneficiary, is not.
1t is also claimed that B. II. Beauchamp
is non resident, and that the statute did
not run in his fayor,-and that Mrs.
Ellis is estopped TO set up the statute
The chancellor dismissed the bill.
Payment of the interest or q part OF
the principal of a debt IS insufficient to
withdraw it from the operation of our
statute of limitations. 1t was held,
under Lord Tenterden's act, that n
part payment would prevent the bar
of the statute, but this was because the
words of that statute were that "no
acknowledgment or promise 5y cords
| only shall be deemed sufficient" ETC.,
| unless in writing. The language of our
statute does not admit of this construc-
ton. Nor is the bar of the statute
avoided by the alleged verbal contract
20 extend the time for the payment of
the note, even though by the contract
the complainant placed it out of his
power to sue; for where the acknowl
edgw ent or promise is required to be in
writing, a contract having the same
effect must also be in writing
The fact that one of the heirs at Law
of the debtor was nonresident of tbs
State during much of the time does no
so modify the effect of the statute as t
continue the liability of his interest il
the land to sale. His absence did no
suspend the operation of the statut
on the note, on which an actor
must have been brought, if at all. agains
the administrator of the debtor; an,
all action on the note being barred, $
also is all right to 20 against the land
, which stood as mere security for tn
| | note.
, The form of the plea by which tn
defence is interposed is not subject
the objections urged. If there was n
promise within six years and fou
, months, it is evident there could hav
, been none within six years and tw
months. The complainants had motto
, of the statute relied upon, and that wa
, sufficient
| Nothing appears by reason of whic
t the rule of estoppel can be applied t
the defendant. She was under no lega
obligation to pay the debt or the inter
f est.
| If it be conceded that the money be
longed to Mrs. Perry, no different result
! would follow. In that event, she or he
representatives might have proceede,
: to collect it as long as it was collectible
: But an enforceable demand cannot b
, created where none exists, in order tina
: the wrong done to theN wife by the hus
;. band may be remedied- Neither Beau
e champ nor his representatives kne1
D th~t Mrs. Perry had or claimed any in
t terest in the fund The note was pay
t able to n. c. Perry; and in the absenc
t of any steps by the wife, it remained hi
q it was barred as to the wife and her di;
r tributes. The rule that though tn
+ trustee is barred by limitations, tn
:. beneficiary, if under disability, is pre-
i tected, has never been, recognized exceE
: in cases where the relationship of truste
: and cestui que trust was known to exis
! The rule referred to was abolished b
e 2 1854, Code of 1880; and though tn
;, bar of that statute would not hay
q attached to this cause of action, if
/ existed, we are unwilling to extend til
5 operation of the rule, abolished as
/ the future, to cases in which it has new,
i been applied. Afirmied.
Wells & Williamson, for appellants
J. X. McNeely, E. E. Baldwin, for a
e pellee.