O.C.G.A. § 9-3-113 (2019)

Annotations

JUDICIAL DECISIONS Debt not extinguished by statute of limitations. - Although an action to recover a debt may be barred by the statute of limitations, the debt is not extinguished thereby as the limitation laws act only upon remedies and do not extinguish rights. Sinclair Ref. Co. v. Scott, 60 Ga. App. 76, 2 S.E.2d 755, 1939 Ga. App. LEXIS 507 (1939); Martin v. Mayer, 63 Ga. App. 387, 11 S.E.2d 218, 1940 Ga. App. LEXIS 106 (1940). Old debt, by virtue of new promise,

is revived and remedy thereon restored. Comer & Co. v. Allen, 72 Ga. 1, 1883 Ga. LEXIS 1 (1883); Shumate v. Ryan, 127 Ga. 118, 56 S.E. 103, 1906 Ga. LEXIS 766 (1906). 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). Writing signed by defendant, which

constitutes new promise to pay, acts to revive or extend defendant’s liability on the debt. Sinclair Ref. Co. v. Scott, 60 Ga. App. 76, 2 S.E.2d 755, 1939 Ga. App. LEXIS 507 (1939). 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. Garrett v. Lincoln Cem., 148 Ga. App. 744, 252 S.E.2d 650, 1979 Ga. App. LEXIS 1640 (1979). Obligation is renewed when the same obligation is carried forward by new paper or undertaking; there may be a change of parties or an increase of security, but there is no renewal unless the obligation is the same, as what makes the renewal is an extension of time in which to discharge the obligation. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365, 1943 Ga. App. LEXIS 149 (1943). Statute which applies to original demand is the statute which governs when a new promise is proven, so that an unsealed written acknowledgment or recognition of an original obligation under seal revives or extends such obligation for the period of time during which a sealed paper would run, which is 20 years. King v. Edel, 69 Ga. App. 607, 26 S.E.2d 365, 1943 Ga. App. LEXIS 149 (1943). When a new promise is given, duration of statute of limitation is not determined by the nature of the new promise, but by the nature of the original obligation. Jackson v. Brown, 118 Ga. App. 558, 164 S.E.2d 450, 1968 Ga. App. LEXIS 1456 (1968). New promise revives debt. - Under this section, new promise which revives a debt revives or extends the debt for a period of time during which the original debt would run. Webb v. Carter, 62 Ga. 415, 1879 Ga. LEXIS 547 (1879). Statute runs from date of the extension. - Agreement extending time of

payment of a 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 the 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). Written entries on back of sealed note were equivalent to written acknowledgment of existing liability, thus extending original liability for 20 years from the date of the last of such acknowledgments. Murray v. Baldwin, 69 Ga. App. 473, 26 S.E.2d 133, 1943 Ga. App. LEXIS 119 (1943). Note containing covenant not to sue was not such a new promise, within the contemplation of this section, as to revive or extend original liability for a debt which was barred by the statute of limitations. Arnold v. Johnston, 84 Ga. App. 138, 65 S.E.2d 707, 1951 Ga. App. LEXIS 649 (1951). Extension of interest-bearing note carries an extension of provision to pay interest. Vines v. Tift & Co., 79 Ga. 301, 7 S.E. 227, 1888 Ga. LEXIS 424 (1888). Renewal not a novation. - When a new note is given in lieu of an existing note, and there is no new consideration, it does not constitute a novation, but merely revives or extends the debt. Georgia Nat’l Bank v. Fry, 32 Ga. App. 695, 124 S.E. 542, 1924 Ga. App. LEXIS 592 (1924); Motor Contract Div. v. Southern Cotton Oil Co., 76 Ga. App. 199, 45 S.E.2d 291, 1947 Ga. App. LEXIS 404 (1947). Section inapplicable when payee contracts not to sue. - This section does not apply to subsequent promise of maker of note to executor of estate of payee who had contracted never to sue maker on the note. Monroe v. Martin, 137 Ga. 262, 73 S.E. 341, 1911 Ga. LEXIS 374 (1911).

RESEARCH REFERENCES Am. Jur. 2d. 51 Am. Jur. 2d, Limitation of Actions, § 284 et seq. C.J.S. 54 C.J.S., Limitation of Actions, § 362 et seq.

ALR. Revival of debt barred by statute of limitations by realization on security deposited as collateral, 10 A.L.R. 838. Acknowledgment, new promise, or payment by principal as tolling statute of

limitations as against guarantor, 84 A.L.R. 729. Payment, acknowledgment, or new promise by mortgagor as tolling statute of limitations as against grantee of mortgaged premises, 101 A.L.R. 337. Restatement of fraudulent statements or reassurance of truth of original statements after other party had actual or constructive knowledge of their falsity as excusing latter’s delay in bringing action or asserting counterclaim based thereon, 107 A.L.R. 589. 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. Promise by holder of obligation to ex-

tend time for payment or not to press for payment as tolling statute of limitations, 120 A.L.R. 765. 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. Insurer’s admission of liability, offers of settlement, negotiations, and the like, as waiver of, or estoppel to assert, contractual limitation provision, 29 A.L.R.2d 636. Payment by 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.