ation that the plaintiff below would not sue. | R. Co. 17 Ky. L. Rep. 1322, 34 S. W. 895, If, therefore, she relied upon this promise; is rested on the ground that the reply there if she was thereby lulled into security, and thus allowed the six years to go by before she commenced her suit,-with what grace can the defendant now set up the statute? The promise operated, not to revive a dead tort, but as by way of estoppel. It has all the elements of an estoppel. The plaintiff relied and acted upon it. She has been misled to her injury. But for the defendant's promise, she would have commenced her action before the six years had expired." This case was followed and approved in Renackowsky v. Water Comrs. 122 Mich. 613, 81 N. W. 581. Hopperton v. Louisville & N. to refer. 'And the rule ceases when the reason for it ceases.' The agreement to refer, so far as it was made, will prevent the operation of the statute, provided the claimant shall have relied upon such agreement;" citing Brookman v. Metcalf, 4 Robt. 568. In Snell v. Dale, 43 N. Y. S. R. 498, 17 N. Y. 575, where there were negotiations between executors and the creditor in relation to a reference, but no written agreement, it was held that the executor was not estopped from insisting upon the short statute of limitations. The court said: "We find nothing in the cases cited by the appellant that would justify us in holding that what occurred between the attorneys of the parties amounted to a waiver or estopped the respondent from insisting upon the short statute of limitations. A mere offer to refer by an executor after an unqualified refusal to pay, will not waive the statute." A promise made by a debtor before the statute of limitations took effect, that, if a suit was not brought on a cause of action arising out of tort, he would pay the same, was held to be an estoppel, and sufficient to bar the running of the statute. Armstrong v. Levan, 109 Pa. 177, 1 Atl. 204. In this case the court said: "If, therefore, she relied upon this promise, if she was thereby lulled into security, and thus allowed the six years to go by before she commenced her suit, with what grace can the defendant now set up the statute? The promise operated, not to revive a dead tort, but as by way of estoppel. It has was insufficient, as the plaintiff had no right to consult his adversary as to when the statute would run, and could not be allowed to plead ignorance of the law, even if wrongfully advised by counsel; but the court added: "This averment, however, as coupled with the promise to keep the plaintiff in its employ if he would not sue, might be held sufficient if there had been an averment that he had been retained in accordance with the promise, and then discharged from the service, it being the inducement for him to forbear bringing his action." What follows in the opinion in regard to an agreement as this would invite into the sacred precincts of a court of justice the arts of the deceitful, and furnish forth a well-appointed place and secure mode of perpetrating frauds." In Webber v. Williams College, 23 Pick. 302, where a debtor, before the expiration of six years from the time the debt accrued, proposed to the creditor that, if he would forbear bring ing his action at that time, he should have the same rights that he then had for one year more, and the creditor stated that he would not postpone his action, but in fact did postpone it until after six years, it was held that this was a compliance with the debtor's offer, and was a good waiver of the statute of limitations. The question of estoppel was not discussed. The son of an obligor on a mortgage note made an agreement in writing with the payee to pay the debt, and that the mortgage lien should be retained. In an action brought on this agreement to enforce the mortgage after the note was barred, it was claimed that the consideration was to have been a conveyance of the property by the father to the son, and that failed because the payee of the note did not surrender the same. It was held that by his agreement and conduct and his failure to notify the payee he was estopped from pleading want of consideration, or the statute of limitations. Davis v. Ramage, 23 Ky. L. Rep. 1420, 65 S. W. 340. In this case the son entered into possession of the land under the agree all the elements of an estoppel. The plaintifment, and was in possession at the time of the suit. relied and acted upon it; she has been misled to her injury but for the defendant's promise she would have commenced her action before the six years had expired. We think the learned judge below was right in holding that the six years would only commence to run from the date of the promise." In one case the doctrine of estoppel was held to apply where the defendant would gain an advantage by his own fraud, or put the Notes plaintiff to an action on the agreement. were made in 1841, payable in one and two years, and in 1844 a contract in writing was made by which, for further indulgence, the debtor agreed to deliver a certain amount of cotton in extinguishment of the notes. It was held that this agreement operated by way of estoppel in pais to a defense under the statute Randon v. Tobey, 11 How. U. of limitations. S. 493, 13 L. ed. 784. In Newton v. Carson, 80 Ky. 309, where a surety agreed with a creditor that, if he would not sue on the note, the former would, during the term of court then in session, confess judgment to save expenses and costs, and the surety afterwards refused to carry out the agreement, it was held that he was precluded from plead- But in Mississippi it is held that an extening the time extended as releasing him under sion of the time of payment on a note must the statute of limitations. In that case it was be in writing, under Miss. Rev. Code, § 2688, said: "The terms of the agreement import a providing that no acknowledgment or promise desire upon the part of the appellee to facili- shall be deemed sufficient evidence of a new tate the recovery of the judgment by removing contract under the statute of limitations, unall obstacles to its rendition, rather than a pur-less such acknowledgment or promise shall be pose to obtain delay. And to countenance such in writing and signed by the party. Therechicanery as the making and violating of such fore it was held that the bar of the statute the propriety of an amended petition has | plead the statute. When it did plead it, reference to the case of the plaintiff's recov- it was proper for the plaintiff to reply, and ering damages for a breach of the contract, set up the matter in avoidance of the plea, and not on his original cause of action. In showing that the statute had not run. No the case before us appellee was retained in matter need be set up in an amended petithe service, in accordance with the promise. tion which might not properly be put in the This was the inducement for him to forbear petition in the first place, and it was imfrom bringing his action, and after the end proper for the plaintiff in this case to have of the year he was discharged from service. set up the matter relied on in the reply in The suit here was brought on the original his petition, unless he sought damages for cause of action. The defense of limitation the breach of the contract. could not be presented by demurrer, and it Judgment affirmed. was, therefore, unnecessary for the plaintiff to anticipate this defense in his petition, for the defendant might have chosen not to was not avoided by reason of an alleged verbal | contract by which the parties, under a sufficient consideration, agreed to extend the time for the payment of the note, even though by the contract the creditor placed it out of his power to sue, on the ground that where the acknowledgment was required by the statute to be in writing, a contract having the same effect must also be in writing. Perry v. Ellis, 62 Miss. 711. Settle, J., did not sit. Hunt, or his estate, or against the undersigned as sureties on the bond of S. B. H. as an officer of this bank, until we request that such proceedings be taken," given pending the running of the statute, was held to estop the obligors from pleading the statute. State Loan & T. Co. v. Cochran, 130 Cal. 245, 62 Pac. 466, 600. In this case it was stated that the authorities are conflicting as to the validity of an agreement to waive the statute; but that in California the validity is regarded as established; and it was held that the statute did not commence to run from the written request, but from the time that the parties, or one of them, ceased to act upon it. son, 15 Abb. Pr. 377. And an indefinite extension of the time to redeem was held not to create an estoppel, under U. S. Rev. Stat. 5057, providing that no suit shall be maintained between an assignee in bankruptcy and a person claiming adversely, touching property, unless brought within two And where creditors, at the request of the years of the time when the cause of action ac- debtor, signed an agreement not to sue him crued, where an assignee bought land under a for two years on the debts owing by him, it deed of trust securing certain debts, including was held that such agreement was an estoppel one due to the bankrupt, and the debtor more in pais as to the two years, where a creditor than two years after the purchase brought sult acted upon it, and he would be injured by alto set it aside. It was contended that the as-lowing it to be disregarded. Rowe v. Thompsignee should have been estopped from pleading the statute, because, after his purchase, he represented to the respondent that he would permit her to redeem the land upon payment of the debt. It was held that this alone was not sufficient to take the case out of the statute of limitations, as no time for redemption was fixed, and no attempt to redeem was shown. Phelan v. O'Brien, 4 McCrary, 466, 13 Fed. 656. The court said: "The most that can be claimed is that respondent was to have the right of privilege to redeem indefinitely. If such was the agreement, it was void for want of mutuality, and not sufficient to prevent the running of the statute of limitations." In Spicer v. Raplee, 4 App. Div. 471, 38 N. Y. Supp. 806, it was held that there was no foundation for the doctrine of estoppel, but that the statute of limitations, by consent of all parties interested, might be waived by an executor where a claim was accepted in writing as valid. III. Request for delay. But in Raby v. Stuman, 127 N. C. 463, 37 S. E. 476, it was held that the debtor was not estopped from pleading the statute of limitations, although the delay had been caused by his request not to sue, where there was no agreement not to plead the statute. In this case the court said: "The promise to pay, not being in writing, cannot be received as evidence of a new or continuing contract, to defeat the operation of the statute. Code, § 172. The defendant is not estopped to plead the statute, as his promise was not an agreement not to plead it, as it was in Haymore v. Yadkin County, 85 N. C. 268. A request not to sue will not stay the statute, it must be an agreement not to plead it. Hill v. Hilliard, 103 N. C. 34, 9 S. E. 639." And where the obligor of a note made a payment thereon, and wrote on the note, "If not paid I request indulgence," it was held that the indorsment on the note was a request for indulgence, but would not estop the debtor from relying on the statute of limitations. Carr v. Robinson, 8 Bush, 269. In this case the court said: "This request was made at or about the time the note was executed, and there was no reason why suit could not have been instituted at any time afterward; and no more force should be attached to this indorsement than if the request had been verbally made when the note was signed. A mere request A request in writing by the sureties on the made for indulgence, either verbally or in writbond of a bank officer that no further proceeding, twenty years before the institution of the ings be taken for the collection of the obliga- suit, is no reason for forbearance for such a tions to the corporation of the late Samuel B. length of time, and cannot be relied on There seems to be some conflict in the few cases arising out of requests for delay. In one case holding that there was no estoppel the delay was twenty years, and in another case the holding was on the ground that there must also exist a promise in writing not to plead the statute. by the obligees in the note, as having been made to lull them into security, in order that the statute might be successfully pleaded." IV. Representations as to material facts. An estoppel has been held to apply where a party was prevented from taking action within the time prescribed by the statute by reason of representations made to him of existing facts, within the knowledge of the party making them, and of which the party relying thereon was ignorant. But where both parties are equally informed, or the representations did not delay the bringing of the action; or where there is no inducement given for delay; or where the representation is as to something to be done, or is not intended to prevent a sult, and made with an honest belief; or where there is no concealment, or any effort to prevent a suit, it is held that there is no estoppel. is held in Connecticut that an equitable estoppel cannot be set up as against the statute of limitations in a court of law. It A purchaser was held estopped from claiming that a prior statute giving six months for redemption applied, where he agreed and represented to the debtors that an amending statute giving twelve months, which was in effect when a decree in foreclosure was made, was the statute which controlled, and the debtors relied upon that agreement. Benson v. Bunting, 127 Cal. 532, 59 Pac. 991. Cal. Code Civ. Proc. § 702, provided that the redemption from mortgage sales might be made. within six months after the sale. In 1897 this was amended by extending the time for redemption to twelve months. The court said: "If, therefore, it be conceded that the representations touching the time for redemption where made with an honest, though erroneous, belief that they were true, no injustice would be done the defendant in permitting the plaintiffs now to redeem. Upon that supposition, the defendant made his bid upon the basis of a twelve months period for redemption, and he should have accepted their offer to redeem, made within that time, and his refusal to do so operated as a fraud upon them, and entitled them to relief in equity." statute of limitations, either as to the amount due on the note, or as to the taxes paid, with interest, by the vendor. Kelly v. Wagner, 61 Miss. 299. This was a bill in equity to estop the debtor from setting up any rights under the deed. The effect of this decree would be to grant the creditor a foreclosure of the trust deed, and to require the creditor to pay taxes and for improvements before he could set up a title. But in Parks v. Satterthwaite, 132 Ind. 411, 32 N. E. 82, it was held that the assurance by a trustee (the date of which was not stated) that he had so arranged the matter that the owner of the money would obtain the same, did not operate as an estoppel to preclude the de fense of the statute of limitations, where there was no finding that there was a fraudu lent act or fraudulent intent. The court said: "We agree with counsel that there may be cases where the person charged as a trustee may be estopped from availing himself of the statute, but we cannot hold that the appellee is estopped from setting up that defense. There is no finding that there was any fraudulent concealment of the receipt of the money, nor any fraudulent attempt to prevent the appellant from ascertaining and enforcing his rights." This was an action by a son against his father's estate for bounty money collected for the son, who was a minor when he enlisted. In a And where both parties are equally informed as to all the facts an estoppel will not apply. This was held in Andreae v. Redfield, 98 U. S. 225, 25 L. ed. 158, where illegal custom duties were paid under protest, and the collector, when sued for the same seven years thereafter, pleaded the statute of limitations. bill in equity by complainant for an injunction to restrain the plea at law, it was claimed that, Department, the presentation of the claim to under the rules and practice of the Treasury the auditor would stop the statute from running, and that the statement of an officer in the custom house to that effect prevented the It was held that these bringing of the suit. statements did not amount to a contract and were without consideration, and could not have the effect to estop the respondent from plead In Union Mortg. Bkg. & T. Co. v. Peters, 72 ing the bar of the statute. Miss. 1058, 30 L. R. A. 829, 18 So. 497, it was held that one who fraudulently obtained money on a mortgage by representing that his property was unincumbered was estopped to contest the mortgagee's right of subrogation to prior liens on the ground that they were barred by the statute of limitations. In this case the court said: "The fraud of Peace in representing that the property was unincumbered, and of aecepting from the appellant the large sum.of money it advanced on the faith of his representations, would preclude him, if alive, from invoking the lapse of time as a bar to the remedy, by which the injury he has sought to inflict can be avoided. He would be estopped to interpose the defense, and his representative, who stands in his shoes, is bound by the same rule." A purchaser of a lot, claiming that his deed was lost, and that he was unable to pay the purchase-money trust deed, rescinded the sale by delivering up possession of the land to the vendor. After the trust deed was barred by limitation he set up the title under the deed alleged to have been lost. It was held that the debtor was estopped from setting up the And where an action was brought against an abstractor of title for negligence, it was held that the fact that the defendant expressed to plaintiff his confidence in the title, after a suit in ejectment was instituted by a claimant, and within five years next before the suit for negligence was brought, did not operate as an estoppel. Schade v. Gehner, 133 Mo. 252, 34 S. W. 576. In Colorado Fuel & I. Co. v. Lenhart, 6 Colo. App. 511, 41 Pac. 834, an action was brought to render directors of a corporation liable for a debt, under Colo. Gen. Stat. § 252, providing that, for the failure to file an annual report in January, directors should be liable for debts of the company during the preceding year, and until such report shall have been made, and § 2170, providing that such action must be commenced within one year after the cause of action accrues. To the defense of the statute of limitations it was claimed that a report was made February 23, 1889, and that the liability attached for not filing a report in 1890. But it was held that the decument filed was not a report. that the cause of action accrued June 21st, 1889, and that the action which was begun in August, 1890, must fail. It was also held that the defendants were not estopped by filing the document in 1889, from claiming that it was not a report, as there was no act ou their part by which the plaintiff was induced to believe that the company had filed the report required by the statute, and that the transaction relating to the debt was not in any degree influenced by belief or disbelief on the subject. And where a debtor, being about to go away, represented to his creditor that he did not intend to return, and, without any purpose to deceive, subsequently returned and was sued six years thereafter, it was held that he was not estopped by the representation from pleading the The statute of limitations and showing that he never acquired residence elsewhere. Langdon v. Doud, 10 Allen, 433. In this case the court said: "The doctrine of estoppel or exclusion of evidence on the ground that it la contrary to a previous statement of a party does not apply to such a representation. reason on which the doctrine rests is, that it would operate as a fraud if a party was allowed to aver and prove a fact to be contrary to that which he had previously stated to another for the purpose of inducing him to act and to alter his condition, to his prejudice, on the faith of such previous statement. But the reason wholly fails when the representation relates only to a present intention or purpose of a party, because, being in its nature uncertain and liable to change, it could not properly form a basis or inducement upon which a party could reasonably adopt any fixed and permanent course of action." An action was brought to recover money paid by a railroad to another party for right of way, claiming that the land was partly owned by plaintiff, and that a misrepresentation of the defendant as to the boundary of the land prevented suit at an earlier date, and that defendant was thereby estopped from relying on the two years' statute. It was held that the representation was not fraudulent or intended to prevent a suit for money, but that it was made in an honest belief as to the true location, and there was no estoppel. McFaddin v. Prater (Tex.) 3 S. W. 306. In Bank of Hartford County v. Waterman, 26 Conn. 324, which was an action founded on the neglect of an officer to make a valid attachment, and for making a false return that he had made such an attachment, the defense was the statute of limitations. It was held that the doctrine of equitable estoppel against the plea of the statute of limitations could not be invoked by the plaintiffs in an action at law. It was contended that the representations set out in the sheriff's return caused the delay in bringing the action, and that plaintiffs were misled by the very record on which they might and should rightfully rely for knowledge of their rights, and of which the defendant was himself the author, having verified it under his official oath. The court said: "It is palpably unjust for the defendant to set up the statute as a defense under such circumstances; to do so is in one sense taking advantage of his own wrong. Yet it is difficult to see that he is not, by the clear provisions of the statute itself, protected in so doing; nor are we aware of any well-established doctrine by which a party in a court of law can be prohibited, on the score of equitable estoppel, from defending himself under a public statute, designed to be of uni. versal operation in the matter of legal remedies." V. Payments. Payments which cause the party to refrain from bringing an action, and which induce a reasonable belief that they are made to prevent suit, are held to create an estoppel. But a payment by an heir or devisee, where there is no obligation to pay the debt, is held not to create an estoppel. Silence on receiving an account rendered is held not to create an estoppel, and a plea by an indorser when sued that payments were made by the maker is held not to prevent a plea of the statute of limitations. A creditor was induced by his debtor to believe that a payment made to a stranger at the creditor's request was intended as a payment on the debt, and would stop the running of the statute. It was held that an estoppel existed. Chase v. Carney, GO Ark. 491, 31 S. W. 43. So, conduct of the defendant in inducing the plaintiff to refrain from bringing action within the period fixed by the statute was held to estop the defendant from relying upon the Comrs. 122 Mich. 613, 81 N. W. 581. statute of limitations. Renackowsky v. Water This was an action against a board of water commissioners of a city for personal injuries. The defendant had made payment up to a short time prior to the suit, and had adopted reso lutions, before the time had expired under the statute, in which it was resolved that plaintiff should receive pay. The course of conduct of the defendant was such as to render it unjust and inequitable that the statute of limitations should be set up as a defense. And where a debtor executed 72 notes, and gave a building association a lien which provided that, if any 3 notes remained unpaid after maturity, then all might be foreclosed, it was held that, on the default of 3 notes, the whole debt matured, and the statute of limitations began; but, where payments were subsequently made on the other notes, and the creditor was induced to believe that they would be paid in due course of time, such conduct on the part of the debtor estopped him from relying upon such default, and the principle of San Antonio Real estoppel by waiver applied. Estate Bldg. & L. Asso. v. Stewart, 94 Tex. 441, 61 S. W. 386. And an administrator was held to be estopped from setting up the statute of limitations to defeat the action, where, after having made payment upon a claim against the estate, he recognized it as valid in his report and petition to sell real estate, and offered to pay plaintiff in real estate, thus leading the claimant to believe that it was approved and admitted, and inducing him to act accordingly. Wilson v. McElroy, 83 Iowa, 593, 50 N. W. 55. In this case notice was served on the administrator when the claim was filed. The defense was that, as no original notice was put in the hands of the sheriff, the statute continued to run. It was held that the statute ceased to run at the time the notice was dispensed with by the admissions of the administrator. The court said: "He cannot, by his acts and declarations, induce the plaintiff to delay proceedings in the case, and then, because of such delay, invoke the statute of limitations to defeat the action." But a payment on a debt of the estate by an heir was held not to create an estoppel as to her, where she was under no legal obligation to pay the debt or interest, although, in consideration of the payment of interest from year to year, the creditor agreed not to foreclose a mortgage on the land until a certain time, within which time the debt became barred. Perry v. Eilis, 62 Miss. 711. And a conveyance to a creditor of an estate by an infant heir, in payment of the debt, and subject to ratification on his attaining majority, was held not to estop him from pleading the statute of limitations, in defense to an application by the creditor for an order to sell the land for payment of the debt, where the contract was disaffirmed by the infant after majority. Warren v. Hearne, 82 Ala. 554, 2 So. 491. The court said: "An heir is not estopped to plead the statute of limitations, when it is attempted to charge the land by having made payments on the debt of his ancestor, though he may be in possession of the descended property. Such voluntary payment is not an admission or representation of any fact, the contrary of which the heir should in conscience be precluded to assert, because having misled the creditor to his prejudice." So a widow devisee making partial payments on a debt against the estate was held not to be estopped from pleading the statute of limitations in bar to an action by the creditor. Lewis v. Ford, 67 Ala. 143. This was under Ala. Code 1876, § 3240, providing that no act, promise, or acknowledgment is sufficient to remove the bar of the statute of limitations, except a partial payment made upon the contract by the party sought to be charged, before the bar is completed, or an unconditional promise in writing signed by the party to be charged thereby. It was held that there was no sufficient element of estoppel by payment made by the widow while continuing in possession of the adverse property, as no fact was admitted or denied, by word or act, which in conscience precluded an assertion to the contrary. The court said: "Here there is no ignorance of fact alleged, no deception practised, no misstatement made, nor even improper silence averred, which has induced appeliant to alter his previous position, to his injury. He was charged with a knowledge of the law, and must have known that his claim was barred by lapse of time. We do not hold that a party may not be estopped from pleading the statute of limitations, where there is a concealment, or misrepresentation, of a fact of which the party injured was ignorant, and by which conduct he was misied to his prejudice. All statutes are to be construed, as far as possible, to discourage fraud, and to brand with disapprobation all covinous transactions, or unconscionable dealings." viously advanced before the execution of the obligation. It was held that the receipt of the account without objection would not estop the debtor from pleading the statute of limitations. The court said: "We think it very clear that he did nothing more than receive the account as sent, without returning any objection, and that only made it prima facie evidence against him. It is not pretended that such an act oy a debtor thereafter forever estops him from pleading the statute as a bar. In no sense can it operate as an estoppel. The statute runs from the date the account is rendered, if it be then due, as it would against any other simplecontract debt. To avoid the statutory bar, the defendant contends that the plaintiff's silence was an admission of the claim of payment; but no claim of payment on this contract was made; the claim was an account of payments to and for the plaintiff only. It is very clear that it is barred, whether the statute runs from the time he made such payments, or from the date he rendered the account." A plea by an indorser of a note that payments had been made upon the note by the maker, and asking that the note be credited therewith was held not to preclude him from setting up the statute of limitations. McMullen v. Rafferty, 24 Hun, 363, Affirmed in 89 N. Y. 456. (The term "estoppel" is not used in the opinion.) VI. Actions on insurance policies. The general rule is that an insurance company will be estopped from relying on the limitation clause of its policy requiring suit to be brought thereon within a limited time, where such company has prevented the policy holder from suing within that time by holding out prospects of payment and settlement. So, representations by the company's agent to the assured that the claim would be paid without suit, which prevented him from bringing a suit until more than six months after the loss, were held to estop the company from relying on the six-months' clause. Phenix Ins. Co. v. Rad Bila Hora Lodge, 41 Neb. 21, 59 N. W. 752. In this case the court said: "We have no doubt that, if such a provision is of any validity, the company may, by its conduct, estop itself from claiming the benefit thereof, and that when the company, by holding out prospects of an amicable settlement, induces the plaintiff to forbear suit until after the expiration of the time limited, the company is thereby estopped from claiming the benefit of the special limitation." So where a suit was prevented by an adjuster representing to the holder of a policy that the terms of the policy had been complied with, and that a settlement of the loss would be made, it was held that the company was estopped from relying upon the conditions of the policy. Bish v. Hawkeye Ins. Co. 69 Iowa, 184, 28 N. W. of 553. In this case the court said: "Any course of conduct by the defendant which would be sufficient to induce the plaintiff to believe, and act upon such beiief, that these conditions were waived, or were regarded by defendant as complied with, would estop it from afterwards setting up the conditions as a defense. No prudent man would bring suit if he believed his claim would be paid without." In Verrier v. Guillou, 97 Pa. 63, a party agreed in writing to pay a certain sum money. Shortly afterwards he presented an account for moneys previously advanced to the payee in the written obligation, and subsequently wrote to the payee, calling his atten tion to these payments. In an action on the obligation it was contended that these payments should be allowed as set-off, and that the creditor who brought the action was estopped from pleading the statute of limitations against set-off by reason of his silence in regard to the statements claiming payments pre And such conduct on the part of the company as would equitably estop it from pleading the prescribed limitation was held to exist where |