O.C.G.A. § 9-3-112 (2019)

Annotations

Cross references. For provision of statute of frauds relating to promise to revive debt barred by statute of limitations, § 13-5-30(6).

JUDICIAL DECISIONS Term “renewal,” as applied to promissory notes, means reestablishment of the particular contract for another period of time. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284, 1938 Ga. LEXIS 583 (1938). Requirements of statute of frauds. - Under the statute of frauds, former Code 1933, § 20-401 (see now O.C.G.A. § 13-5-30), any promise to revive a debt barred by the statute of limitation must be in writing and must be signed by the promisor or some person lawfully authorized by the promisor. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942). New promise to pay or written acknowledgment of liability may revive or extend original debt. Bingham v. Advance Indus. Sec., Inc., 138 Ga. App. 875, 228 S.E.2d 1, 1976 Ga. App. LEXIS 2352 (1976). Acknowledgment in writing of existing liability is equivalent to new promise to pay. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942); Middle-

brooks v. Cabaniss, 193 Ga. 764, 20 S.E.2d 10, 1942 Ga. LEXIS 469 (1942). Debtor’s annual payment of interest on promissory notes to the debtor’s siblings acted as a renewal of the promise to pay, even if the statute of limitations on the notes would have run but for such payments. Heath v. Wheeler, 234 Ga. App. 606, 507 S.E.2d 508. Distinct admission of a present subsisting debt is such an acknowledgment as will take a case out of the statute of limitations. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942). Written acknowledgment must admit debt to be a present subsisting liability which party is liable to pay. Kelley v. Strouse & Bros., 116 Ga. 872, 43 S.E. 280, 1903 Ga. LEXIS 111 (1903). Identification of acknowledged debt. - While new promise or acknowledgment must itself identify debt to be revived or afford sufficient means of identification, still if it supplies a key by which the debt may be identified with the aid of extrinsic evidence, it is in this respect a

sufficient compliance with the statute of frauds. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942). Acknowledgment of indebtedness, to constitute point from which limitation shall commence running, must be in writing and must sufficiently identify the debt or afford means by which it might be identified with reasonable certainty. Hudson v. Sadtler, 100 Ga. App. 232, 110 S.E.2d 706, 1959 Ga. App. LEXIS 582 (1959). Express or implied promise to pay. - In order to constitute a “new promise,” acknowledgment must refer to a particular debt as an existing liability, and there must be an express promise to pay the claim or such absolute and unqualified admission of it as an existing indebtedness that the law would imply a promise to pay the debt. Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088, 1975 U.S. Dist. LEXIS 14052 (N.D. Ga. 1975). It is not necessary that party should express oneself willing and liable to pay, which would be an express promise; a promise is implied from acknowledgment that the particular debt is still due. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942). Delivery necessary. - Delivery of memorandum to some person is required, and a mere private memorandum found after the maker’s death is insufficient. Abercombie v. Butts, 72 Ga. 74, 1883 Ga. LEXIS 17 (1883). Mere partial payment, in absence of a writing, is not sufficient to revive or extend original debt. Bingham v. Advance Indus. Sec., Inc., 138 Ga. App. 875, 228 S.E.2d 1, 1976 Ga. App. LEXIS 2352 (1976). Written acknowledgment of an existing liability constitutes a new promise to pay, which revives the debt so as to recommence the running of the statute of limitations; mere partial payment in the absence of such a writing is not sufficient. Garrett v. Lincoln Cem., 148 Ga. App. 744, 252 S.E.2d 650, 1979 Ga. App. LEXIS 1640 (1979). This section accepts an entry by debtor or the debtor’s agent. Green v.

Hall, 36 Ga. 538, 1867 Ga. LEXIS 86 (1867). Entry by the creditor is insufficient. Ryal v. Morris, 68 Ga. 834, 1882 Ga. LEXIS 157 (1882). Maker of a note may make the entry. Vines v. Tift & Co., 79 Ga. 301, 7 S.E. 227, 1888 Ga. LEXIS 424 (1888). Agent of maker of note may make the entry. Foster v. Cochran, 89 Ga. 466, 15 S.E. 551, 1892 Ga. LEXIS 386 (1892). Proof of agent’s authority. - Agent’s authority to renew or extend promissory note by a new promise may be proved by parol. Foster v. Cochran, 89 Ga. 466, 15 S.E. 551, 1892 Ga. LEXIS 386 (1892). Verbal agreement plus check insufficient. - Allegation that defendants entered into a verbal agreement with plaintiff to revive and extend indebtedness, which verbal agreement was evidenced by a written check was insufficient under this section. Hudson v. Sadtler, 100 Ga. App. 232, 110 S.E.2d 706, 1959 Ga. App. LEXIS 582 (1959). Notation made on check delivered to creditor constitutes a sufficient written acknowledgment, when it affords a means of identifying the debt with reasonable certainty. Garrett v. Lincoln Cem., 148 Ga. App. 744, 252 S.E.2d 650, 1979 Ga. App. LEXIS 1640 (1979). Monthly wire transfer with notation regarding account. - Monthly wire transfer payments from a debtor to a creditor containing notations regarding the debtor’s account constituted new promises by the debtor to pay under O.C.G.A. §§ 9-3-110 and 9-3-112 and sufficed to renew the running of the four-year statute of limitations, O.C.G.A. § 9-3-25. Because the last payment was made in July 2008, the creditor’s suit in March 2012 was not time-barred. SKC, Inc. v. eMag Solutions, LLC, 326 Ga. App. 798, 755 S.E.2d 298, 2014 Ga. App. LEXIS 160 (2014), cert. denied, No. S14C1134, 2014 Ga. LEXIS 642 (Ga. Sept. 8, 2014). Written notations on back of sealed note. - In an action upon a sealed note, brought by creditor against administrator of maker’s estate, written entries on back of note in handwriting of deceased were equivalent to written acknowledgment of existing liability, thus extending original

liability for 20 years from the date of last of such acknowledgments. Murray v. Baldwin, 69 Ga. App. 473, 26 S.E.2d 133, 1943 Ga. App. LEXIS 119 (1943). Letter signed by endorser of unsealed note and mailed to creditor bank before debt was barred, directing it to withdraw a stated sum from the endorser’s account “to be credited on interest of the note of the Dixon estate,” further described in the letter as a note bearing the writer’s endorsement, was a sufficient acknowledgment and identification of the debt, fixing a new point from which the limitation period should be calculated. National City Bank v. First Nat’l Bank, 193 Ga. 477, 19 S.E.2d 19, 1942 Ga. LEXIS 424 (1942). Agreement extending time of payment of note, signed and acted on by defendant surety, was binding on the defendant in an action to enforce the note, and the statute of limitations ran from date of the extension, not the original due date. Woolfolk v. Mathews, 54 Ga. App. 694, 188 S.E. 729, 1936 Ga. App. LEXIS 732 (1936). Unsealed renewal of sealed security deed. - When, after execution under seal in 1914 of original deed to secure debt, in 1927 debtor executed an unsealed promissory note in renewal of the original security or debt, even though this signed renewal note itself was barred, it operated as a written acknowledgment of the original liability under seal, and suspended running of the statute against the original security deed, so that foreclosure in equity in 1936 was properly within 20-year period. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284, 1938 Ga. LEXIS 583 (1938). Entry on a fi. fa. of a void judgment will not constitute an acknowledgment under this section. Reed v. Thomas & McNeal, 66 Ga. 595, 1881 Ga. LEXIS 68 (1881).

Statute which applies to original demand governs when new promise is proven so that unsealed written acknowledgment or recognition of original obligation under seal revives or extends such obligation for period of time during which sealed paper would run, that is, 20 years. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284, 1938 Ga. LEXIS 583 (1938). Statute commences to run from acknowledgment. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284, 1938 Ga. LEXIS 583 (1938). Renewal of interest bearing note does not extinguish claim for subsequent accruing interest. Crockett v. Mitchell, 88 Ga. 166, 14 S.E. 118, 1891 Ga. LEXIS 313 (1891). Evidence of handwriting of debtor may be required when the debtor died after entry of payment on a note. Watkins v. Harris, 83 Ga. 680, 10 S.E. 447, 1889 Ga. LEXIS 135 (1889). Listing of time-barred claim in bankruptcy schedules. - Under Georgia law, a time-barred debt was not revived under O.C.G.A. § 9-3-112 by: (1) a debtor’s listing of the time-barred claim in the debtor’s schedules as undisputed and providing in the debtor’s plan for the payment in full of allowed unsecured claims; and (2) the commencement of payments by the trustee to the holder of such claim under a confirmed plan. Hope v. Quantum3 Group LLC (In re Seltzer), 529 B.R. 385, 2015 Bankr. LEXIS 949 (Bankr. M.D. Ga. 2015). Scheduling of debts in compliance with Bankruptcy Code. - Debtor’s scheduling of debts in compliance with the Bankruptcy Code is not the “unqualified admission” of liability required under Georgia law. Hope v. Quantum3 Group LLC (In re Seltzer), 529 B.R. 385, 2015 Bankr. LEXIS 949 (Bankr. M.D. Ga. 2015).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, §§ 284 et seq., 318 et seq. C.J.S. 54 C.J.S., Limitation of Actions, §§ 204 et seq., 380 et seq.

ALR. Application by vendor of proceeds of sale of property seized under conditional sales contract as interrupting statute of limitations, 55 A.L.R. 274. Effect as regards interest of acknowl-

edgment, new promise, or payment which takes case out of statute of limitations as regards principal, 78 A.L.R. 959. Acknowledgment, new promise, or payment by principal as tolling statute of limitations as against guarantor, 84 A.L.R. 729. Part payment, acknowledgment, or promise by devisee, who has accepted devise charged with legacy, as tolling statute of limitations as against purchaser or mortgagee, 97 A.L.R. 992. Payment, acknowledgment, or new promise by mortgagor as tolling statute of limitations as against grantee of mortgaged premises, 101 A.L.R. 337. Bank’s application of deposit or right to apply deposit against indebtedness as tolling statute of limitations as regards balance of indebtedness, 107 A.L.R. 1527. Duration of lien of special assessment and period of limitation of actions for its enforcement as affected by adoption of installment plan of payment, 114 A.L.R. 399. Promise by holder of obligation to extend time for payment or not to press for payment as tolling statute of limitations, 120 A.L.R. 765. Promise to pay part of obligation if another, or others, would pay part, as

tolling statute of limitations, 133 A.L.R. 974. Necessity and sufficiency of identification of part payment with the particular debt in question, for purposes of tolling, or removing bar of, statute of limitations, 142 A.L.R. 389. Constitutionality, construction, and application of statute modifying or limiting effect of acknowledgment, payment, or other conditions to toll or extend the period of limitation with respect to mortgage foreclosure, 150 A.L.R. 134. Payment on account, or claimed to be on account, as removing or tolling statute of limitations, 156 A.L.R. 1082. Authority of officer or employee of corporation to acknowledge corporate debt, make partial payment or new promise, or do other act which will have effect of tolling or suspending statute of limitations, 161 A.L.R. 1443. Authority of agent to make payment on behalf of principal, as regards statute of limitations, 31 A.L.R.2d 139. Payment of obligor on note or other instrument containing warrant of attorney to confess judgment as extending time within which power to confess may be exercised, 35 A.L.R.2d 1452.