Trustees of St. Mark's Evangelical Lutheran Church v. Miller

Jones, J, delivered the opinion of the Court. Ezra D. Miller, late of Washington County, deceased, executed in his lifetime, his obligation in writing and under seal as follows: “One day from this first day of April, A. D., 1882. I promise to pay to Joseph Rohrer, John W. Brantner, John V. Rohrer, Henry W. Rohrer, John H. Poffenberger and Henry Clay Rohrer, Trustees of St. Mark’s Evangelical Lutheran Church of Rohrersville, Washington County, Maryland, or their successors, or their order, or the order of their successors, five hundred dollars for value received with interest from first day of April, A. D., 1883. This note being given to said Trustees for the use and benefit of the pastor of said church and his successor in office; the interest thereof to be annually collected and paid over to the said pastor or his successor by said Trustees, or their successors, and the principal when due and paid over to be invested for his, the said pastor’s use and benefit by said Trustees, and the annual interest thereof to be paid by them to the said pastor or his successor as aforesaid.” “Witness my hand and seal” (Signed) Ezra D. Miller, [Seal.] The obligor died in March, 1902.

At the time of his death ²⁵ no part of the principal of the debt evidenced by the foregoing writing obligatory had been paid ; but by endorsements of payments of interest thereon it appeared that the interest had been paid in full to April, 1896; and that subsequent to that date there had been partial payments of interest the last of which was made in 1902. The appellants, who were successors, as trustees, to those named in the said writing, brought in a claim against the estate of the deceased for the amount of the writing obligatory and the interest thereon for the time the same had not been paid. This claim was proved to, and passed by, the Orphans’ Court of Washington County, and was then brought into the Circuit Courtforsaid countyfor payment out of the proceeds cf sale of the real estate which had been sold for payment of debts in aid of the personalty. The claim was excepted to by the widow and heirs of Ezra D. Miller, who set up and relied upon limitations against the claim.

To avoid the effect of limitations the appellants relied upon a new promise made by the deceased in his lifetime. Upon the question thus made both sides submitted testimony to the Court below and that Court sustained the exceptions of the appellees and held that the claim made by the appellants was not relieved of the bar of limitations upon the proof so submitted and made its decree accordingly. From that decree this appeal was taken. Without going into recitals from the record it may be briefly stated that it appears from the course and nature of the testimony, the agreement of counsel and the opinion of the Court below, that the main and fundamental question, which was intended to be, and which was, submitted to, and considered by that Court, and which formed the basis of its decision, was whether the appellants had been able to show such a new promise made by the obligor, Ezra D. Miller, to pay what remained due on the debt evidenced by the writing obligatory, which has been recited, as to enable them to enforce the claim thereunder against his estate as against the plea of limitations.

Our Statute of Limitations provide that no “specialty whatsoever, except such as shall be taken for the use of the State, ²⁶ shall be good and pleadable, or admitted in evidence against any person in this State after the principal debtor and creditor have both been dead twelve years, or the debt or thing in action is above twelve year’s standing” with a saving to persons under disabilities. It is settled in our decisions that it results from the terms of the statute just recited, that, when the period, fixed therein, for barring actions for the recovery of specialty debts has expired, and the bar of the statute has applied, no action can be maintained on the specialty itself as against the plea of the statute; but it is equally well settled that, if, after the specialty has become barred by the provisions of the Statute of Limitations, the specialty debtor makes an express promise to pay the debt specified in the obligation, or the part thereof remaining unpaid, an action can be maintained upon such promise to recover the amount so remaining unpaid, and the specialty can be used as evidence of a consideration therefor. In the case of Leonard, Admr., v. Hughlett, 41 Md. 380 , it was said by Justice Alvey, speaking for this Court (see page 388), “nothing less than an express promise to pay the amount due thereon, made after the statute had become a bar to the remedy on the bond itself will suffice to maintain an action of assumpsit to recover the amount due. In such case the bond, although the remedy thereon be barred by the statute, may be given in evidence, as the inducement to, or as explanatory of, and as furnishing the legal basis of the express promise to pay the amount remaining due on the bond.

This has been expressly decided by the cases of Lamar v. Manro, 10 Gill & J. 50 and Young v. Mackall, 4 Md. 362 .” The same doctrine was announced and approved in Wright, Exr., v. Gilbert, Exrx., 51 Md. 146 (see p. 156.) .Now what was the proof of the new promise set up by the appellants? Mr. Young, a witness produced by them, testified that in the year 1901 he had a conversation with Ezra D. Miller in reference to the note or bond here in controversy ; that he was one of a committtee appointed on behalf of the church named in the bond to talk about it with Miller — the interest being then in arrear; that the committee "laid the ²⁷ matter before him and he acknowledged it was all right and the interest was back, ” that he “said the note was all right; the note and interest he