Shepherd v. Thompson - 122 U.S. 231 (1887)
U.S. Supreme Court
Shepherd v. Thompson, 122 U.S. 231 (1887)
Shepherd v. Thompson
Argued April 25-26, 1887
Decided May 27, 1887
122 U.S. 231
A promissory note, secured by mortgage of the same date, is not taken out of the statute of limitations, as against the debtor, by a writing signed by him by which, "in consideration of the indebtedness described in the" mortgage, a claim of his against the government and its proceeds are "pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight percent per annum until paid," and he promises that those proceeds shall "be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as" those proceeds "are sufficient to pay."
When exceptions taken by the plaintiff to a ruling in favor of the defendant at one trial have been erroneously sustained and a new trial ordered, and a contrary ruling upon the same point at the second trial has been erroneously affirmed upon exceptions taken by the defendant, this Court, upon a writ of error sued out by him, will not, on reversing the judgment of affirmance, direct judgment to be entered on the first verdict, but will only order that the second verdict be set aside and another trial had.
This was an action brought March 11, 1880, by John W. Thompson against Alexander R. Shepherd upon two promissory notes dated March 10, 1873, made by the defendant and payable to the plaintiff, the one for $7,000 in two years, and the other for $8,000 in three years, with interest at the yearly rate of eight percent. The defendant pleaded the statute of limitations. The record transmitted to this Court showed that the case was tried twice, and that at each trial the plaintiff put in the following evidence: 1st., the notes sued on; 2d., a deed of trust of the same date, in the usual form of mortgages of real estate in the District of Columbia, and recorded in the land records for the District, liber 712, folio 128, by which the defendant conveyed to the plaintiff certain land described, in trust to secure the payment of these and one other note; 3d., a deed dated November 15, 1876, by which the defendant conveyed his property and choses in action, including a claim against the United States, for the use and occupation of the premises No. 915 E Street Northwest, in the City of Washington, to George Taylor and others, in trust to apply for the benefit of his creditors; 4th., an instrument signed by the defendant and A. C. Bradley, assented to in writing by Taylor and his co-trustees, the body of which is as follows:
"In consideration of the indebtedness described in the deed of trust to William Thompson, trustee, executed March 10, 1873, and recorded in liber No. 712, folio 128, of the land records of the District of Columbia, the demand and claim of A. C. Bradley to the use of A. R. Shepherd and others against the United States for the use and occupation of the premises No. 915 E Street Northwest, and all the proceeds
thereof, and the moneys derived therefrom, are hereby pledged and made applicable to the payment of said indebtedness, with interest thereon at the rate of eight percent per annum until paid, and it is hereby covenanted and agreed that any draft or check issued in payment or part payment of said claim shall be endorsed and delivered to the trustee named in said trust, and the proceeds thereof, less all proper costs and charges, be applied to the payment of said indebtedness, with interest as aforesaid, or to so much thereof as the sum or sums of money so received is or are sufficient to pay. Witness our hands this 21st day of June, 1877."
At the first trial, the judge ruled that this instrument was insufficient to take the case out of the statute of limitations, and a verdict and judgment were rendered for the defendant, which, upon a bill of exceptions of the plaintiff, were set aside at the general term. 1 Mackey 385.
At the second trial, the judge, against the objection and exception of the defendant, instructed the jury that this instrument was evidence of a new promise, which took the notes sued on out of the statute of limitations. A verdict and judgment were rendered for the plaintiff, and a bill of exceptions to this instruction was tendered and allowed. This judgment was affirmed in general term, and the defendant sued out this writ of error.