Eirley v. Eirley

Briscoe, J., delivered the opinion of the Court. On the 2nd day of September, 1904, the appellant <■ filed a creditors’ bill in the Circuit Court for Washington County, against the appellees, -who are heirs-at-law of one William H. Eirley, late of that county, deceased, to obtain a sale of certain real estate for the purpose of paying his debts. The bill avers that the intestate was in his life time indebted to the appellant in the sum of two thousand and ninety ⁴⁵³ four dollars, “for personal attention in nursing, preparing meals, washing, mending clothes, room rent, etc., from April 1st, 1893, to July 31st, 1899, and from October 1st, 1899, to May 24th, 1900, at $300 per year.” It further charges that the intestate possessed no personal property at the time of his death, but owned certain real estate situate in Hagerstown, Md., subject to liens by way of mortgages, one for the sum of two hundred dollars, and another for one hundred dollars. The prayer of the bill, in addition to the one for general relief, is that the real estate or so much thereof as may be necessary for the purpose be sold for the payment of the appellant’s claim.

On the 23rd of September, 1904, the appellees, the heirs-at-law, answered the bill, wherein they deity the indebtedness as claimed by the plaintiff, and aver that if any existed it was fully satisfied and discharged by payment in the life time of the intestate. They also rely upon and claim the benefit of the Statute of Limitations as a bar to the plaintiff’s claim. The other matters charged in the bill are admitted by the answer to be true. The appellee, Welsh, the assignee of the two mortgages against the property also answered the bill, and asserted the priority of her liens, in case of a sale of the property, but did not admit or deny the contentions of the plaintiff as alleged in the bill.

To the answer, the plaintiff replied, “a new promise” to the bar of the Statute of Limitations, and joined issue on the other defences made by the answer. The case was heard on bill, answer and proof and from a decree of the Circuit Court for Washington County, passed on the 25th day of April, 1905, dismissing the plaintiff’s bill, this appeal has been taken. The plea of limitations interposed by the appellees in the case, cannot we think be allowed to prevail to defeat that part of the appellant’s claim, revived by the new promise, made in the life time of the debtor. ⁴⁵⁴ Mr. Eirley died on May 24th, 1900, and the bill in this case was filed on the 2nd day of September, 1904, that is, four years ánd three months after his death. This being a proceeding in equity against the real estate of a debtor for the payment of his debts by reason of the insufficiency of the personalty, the operation of the Statute of Limitations is suspended in relation to the heirs for the period of eighteen months from the death of the decedent, that is, the statute is suspended in favor of the creditor as against the heir and devisees for the period named.

Code, Art. 57, sec. 8; Shepherd v. Bevans, 4 Md. Ch. 408 ; Thompson v. Dorsey, 4 Md. Ch. 149 ; Simms v. Lloyd, 58 Md. 477 . The appellant’s claim as set out in the record appears to be