The opinion
Smith, C. J.
(dissenting) — Because I believe the majority opinion adds to the statute something never said or intended by the legislature I am compelled to dissent. It is true that this statute has been practically unchanged for over eighty years. Even prior to the Revision of 1860 it was substantially the same as now except that the admission or new promise was not then required to be “in writing signed by the party to be charged. ’ ’
Our court at first (prior to the Revision of 1860) held the
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statute to be merely declaratory of tbe common law and that the “admission” contemplated must therefore be such as would imply a new promise to pay. Penley v. Waterhouse, 3 (Clarke) Iowa 418, 438. In that case Judge Wright said:
‘ ‘ If, however, the debt shall be acknowledged ever so clearly, and the debtor expresses an intention not to pay, there can be no recovery.”
Presumably this was said to iRustrate a case in which the debtor clearly negatived any implied promise to pay.
Difficulty with this construction of the original statute soon arose when the court was confronted by a situation in which the written admission (required by the Revision of 1860) was not made to the party to whom the debt was owing. Chief Justice Beck then (1873) said:
‘ ‘ The statute provides that an admission
or
new promise in writing will revive the cause of action * * *. Both are not required; the admission alone is sufficient.
It is not regarded as a contract, but is simply a written declaration that the debt is not paid.
* * *
The object of the law is to secure written evidence, attested by the signature of the debtor, that the debt is not paid.”
Mahon v. Cooley, 36 Iowa 479, 482 . (Italics supplied.)
This language should have put at rest any idea of the necessity for an implied promise to pay. A-year later it was again said:
‘ ‘ The admission is not to be regarded like a new promise or a contract, but
simply as evidence of the nonpayment of the debt.”
Ayres v. Bane, 39 Iowa 518, 519 . (Italics supplied.)
. In Doran v. Doran, 145 Iowa 122, 125, 127 , 123 N. W. 996, 997, 998 , 25 L. R. A., N. S., 805, Justice McClain again made clear that our statute was not intended to be declaratory of the common-law doctrine that “an acknowledgment was recognized as reviving the indebtedness only so far as it constituted by implication a new promise * * *.” On the contrary, he points out the use of the word “admission” in our statute instead of the word “acknowledgment” as used in t]ie English cases, and concludes:
‘ ‘ In short, the term relates to a statement presumably against
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the interest of tlie party making it and its admissibility is determined by the rules of evidence * * *.”
These pronouncements have stood unquestioned for all these years, except for some language of Justice Weaver in 1905. Kleis v. McGrath, 127 Iowa 459 , 103 N. W. 371 , 69 L. R. A. 260, 109 Am. St. Rep. 396 . And three years later, in Senninger v. Rowley, 138 Iowa 617 , 116 N. W. 695 , 18 L. R. A., N. S., 223, he quite clearly dissociates the required admission from any agreement to pay or assume payment of the debt.
The decisions of Justices Beck and McClain above referred to follow the plain language of the statute. They clearly repudiate the doctrine of implied promise to pay. But the majority opinion here revives that doctrine by indirection. If the admission that the debt is unpaid need not
imply
a promise to pay, of what significance is the fact that it is coupled with an expression of an intention
not
to pay ?
Because the admissions here are accompanied by language designed to
negative
any promise or intention to pay, it is said:
“Surely, these statements cannot constitute an ‘admission’ that will revive an outlawed debt under section 11018 of the Code. If that were so, the statute would become a dangerous trap and susceptible to grave abuse.”
No authority is cited for this direct qualification of the language of the statute. Nor is the reason given persuasive. Why would the statute be a “dangerous trap”? And to what “grave abuse” could it become susceptible if applied according to its plain language ? Is there any great moral purpose to be served in permitting a debtor to write: ‘ ‘ The debt is not paid but it is outlawed and I do not-intend to pay it,” and thus escape the consequences of his admission?
It has been said statutes of limitation are ‘ ‘ founded in part at least on the general experience of mankind that claims which are valid are not usually allowed to remain neglected, and that the lapse of years without any attempt to enforce a demand creates a presumption against its original validity or that it has ceased to exist * * *.*’ 37 C. J. 684, section 2; 34-Am. Jur. 18, section 9.
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That, statutory presumption seems to have been in the legislative mind when this “revivor” statute was enacted. The written admission that the debt was unpaid would negative the presumption that the debt was paid. If the clear language of the statute is followed, the court in any such case has just one question to determine, Has the debtor admitted in writing over his own signature that the debt is unpaid? What his intention may be concerning- payment or reliance on the bar of the statute, whether expressed in connection with the written admission or otherwise, becomes entirely immaterial. By admitting the debt is unpaid he lays down the shield that the limitations statute gives him and elects either to rely on other weapons of defense or submit to judgment.
In Leland v. Johnson, 227 Iowa 520, 532 , 288 N. W. 595 , we refer to the fact that Code section 11018 is a statute that does not impose any
condition
to its provisions that a written admission shall revive the debt. I think the statement is true. But the majority opinion here in effect repudiates it: “An admission, which the writer qualifies in the next breath by the assertion of the defense of the statute, is not the kind of an ‘admission’ contemplated * * ®.”
By what right or authority may we thus condition and limit the language of the statute? We are concerned here, not with what the law ought to be but with what it is. It may be conceded the instant case is one that arouses our sympathy for a worthy debtor who under earlier and more favorable conditions became liable for a debt not his own. But in deciding his case we should follow the law as already established and not attempt to modify it for the purpose of the particular case. Too often hard cases make wrecks of the law. If the statute is to be modified, the legislature and not we should do it.
The majority opinion can only be justified by a return to the discarded doctrine of the necessity for an implied promise to pay, or by some new theory of implied waiver of the statute of limitations by reason of the admission. Otherwise, the fact that the language used expressly excludes the possibility of an implied agreement to pay or an implied waiver of the defense of the statute would have no significance. Either theory is
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entirely inconsistent with our repeated pronouncements that the admission, like any other statement against interest, need not be made to the one to whom the debt is payable. I am not willing to throAV these cases overboard.
I would reverse the decision of the district court.
Bliss, J., joins in this dissent.