years 1917 and 1918 to raise funds for high- general creditors share, and which can be ways, and permitted them to anticipate the prorated among them. The act of 1917, aucollection of the tax by the issue and sale of thorizing the one-mill levy, created a special certificates of indebtedness. The levy of one fund for a special purpose. When certificates mill was made by Santa Fé county in 1917, were issued by the county and sold against and certificates to the amount of $2,000 were the future collection of this levy, the county issued and sold in anticipation of its collec- was obligated to use the proceeds of it for tion. The certificates contained the recital the redemption of the certificates. The that they were to be paid out of the proceeds moneys when collected constituted in a sense of the collections of the tax levy of one mill a trust fund to be devoted to that purpose, on the dollar of the valuation of all property and to the extent necessary, that purpose in said county of Santa Fé, subject to taxa-only. tion for the state and county purposes for No question is raised as to the original vathe year 1917. This levy brought into the fund more than sufficient money to pay these certificates, principal and interest, but only one of the certificates was paid. The balance of the proceeds of the levy was diverted by the county authorities, leaving no funds available for the three remaining certificates, and payment of them was refused by the county upon presentation on the ground of lack of funds. lidity of the certificates. They were valid when issued. A special fund had been created for their payment. They were payable out of that special fund only. They were not entitled to share in the general funds of the county for 1917, and general creditors were not entitled to any portion of the proceeds of the levy in anticipation of which they were issued. Certainly the Bateman Act has no application to such a situation. Its purpose. This action was commenced to recover as stated in James v. County Commissioners, judgment against the county for principal and interest of the three unpaid certificates. The county defaulted, and judgment was rendered against it. This appeal is prosecuted from that default judgment, upon the theory that the complaint did not state a cause of action. 24 N. M. 509, 174 Pac. 1001, is to require counties to live within their incomes and to keep the expenses in any year within the income for that year. Here it is admitted that the income from the levy out of which these certificates were to be paid was more than sufficient to meet them. The county authorities, in violation of the plain duty to con tificates, diverted it to other uses, and then say, when the certificates are presented, that they cannot be paid for lack of available funds. Such a contention does not appeal to a sense of justice, and is not sustained by the law. The misapplication of funds collected for the payment of these certificates cannot render them invalid. The argument made by appellant is that since the indebtedness was payable from rev-serve this fund for the payment of these cerenues for the year 1917, and there were no funds available for that year from which to pay these certificates upon presentation, they became void under the terms of the Bateman Act, and payment of them may not be enforced from the revenues of a subsequent year. Counsel for appellant relies upon the case of Optic Publishing Co. v. Board of County Commissioners of San Miguel County, 202 Pac. 124, recently decided, and previous similar decisions of this court. The Bateman Act (Code 1915, § 1227 et seq.) has so frequently been before this court that extended consideration of it is unnecessary. The portion claimed to be applicable here provides that no board of county commissioners shall become indebted or contract any debts during any current year which at the end of such year cannot be paid out of money collected and belonging to that year, and that any indebtedness which cannot so be paid shall be null and void, and that if the funds are insufficient to pay creditors in full they are to be prorated among them. Obviously the act applies to the general expenses and indebtedness of the county which is paid from its general funds, the funds in which The district court included in its judgment an order directing the board of county commissioners to make a sufficient levy upon the taxable property in the county of Santa Fé to pay the judgment. This feature of the judgment is assigned as error on the ground that it is sought thereby to apply revenues for the year 1921 to the payment of an indebtedness accruing in a previous year. For the reasons stated in this opinion we do not consider the order erroneous on this ground.. As to the effect of such an order, or as to whether it might be successfully attacked on other grounds, we express no opinion. The judgment of the district court is therefore affirmed; and it is so ordered. RAYNOLDS, C. J., and PARKER, J., con cur. (27 N. M. 529) (203 P.) JOYCE-PRUIT CO. v. MEADOWS et al. (No. 2556.) "Q. When you went to Arizona, did you know that the note or debt sued upon was unpaid? A. Yes. "Q. Did you know that you and your hus (Supreme Court of New Mexico. Dec. 23, band signed the note sued upon and described 1921.) (Syllabus by the Court.) 1. Statutory provisions. A debt barred by the statute of limitations is revived by an admission that it is unpaid made in writing and signed by the party to be charged. 2. Limitation of actions 148 (4)—Admission that debt is unpaid need not amount to new promise. It is not necessary that such an admission amount to a new promise to pay, express or implied. 3. Limitation of actions 142-Admission that debt is unpaid reviving it need not be made to creditor. It is not necessary that the admission be made to the creditor. 4. Limitation of actions 145(4)-Admissions in answer to cross-interrogatories held to revive debt. The fact that the admission is made in a deposition in answer to cross-interrogatories does not alter its effect. in plaintiff's complaint? A. Yes. "Q. Is the debt which is evidenced by the note payable to Joyce-Pruit Company, and which you and your husband signed, and which is sued upon in this case unpaid? A. Yes. "Q. How long have you known that this debt is unpaid? A. Since January, 1911. "Q. Why are you not willing to pay this debt? A. Not able. "Q. Do you know and acknowledge that the debt evidenced by the note that the plaintiff in this case sued upon is unpaid? A. Yes." The deposition of each of these parties was in writing, duly signed, and acknowledged. Upon the incoming of these depositions the action then pending was dismissed without prejudice, and this action was commenced on April 12, 1920. The complaint stated the facts already recited, claimed the depositions to be admissions in writing sufficient to avoid the bar of the statute of limitations, and attached copies of them as exhibits. Appellees demurred on the ground that the complaint showed on its face that the action was barred, and that the answers in the depositions were not admissions suffiIcient to toll the statute or revive the cause Appeal from District Court, Chaves Coun- of action. The demurrer was sustained, and ty; Brice, Judge. Action by the Joyce Pruit Company against J. H. Meadows and others. Judg. ment for defendants on demurrer, and plaintiff appeals. Reversed and remanded, with instructions. H. M. Dow, of Roswell, for appellant. O. E. Little and Ed. S. Gibbany, both of Roswell, for appellees. DAVIS, J. On January 3, 1911, J. H. Meadows and Cordelia Meadows, appellees, gave to Joyce-Pruit Company, appellant, their promissory note for $1,881.56, payable June 1, 1911. Some payments were made upon it, but at the expriation of the six-year period of limitation a considerable amount was still unpaid. In 1920 an action was commenced by appellant upon the note against appellees, who then resided in Arizona. Their depositions were taken in Arizona by stipulation of the parties. A crossinterrogatory was directed to J. H. Meadows relative to the note sued upon as follows: "Q. When you went from New Mexico to Arizona did you know that the debt evidenced by the note which the appellant sued upon in this case was unpaid? A. Yes." Cross-interrogatories were also directed to Cordelia Meadows, which she answered as follows: appeal taken. The only questions presented are as to the effect of the depositions as obviating the bar of the statute, for it is undisputed that the six-year limitation period had expired, and no new promise or admission is pleaded except the one referred to. [1] The statute in question is section 3356, Code 1915, as follows: "Causes of action founded upon contract shall be revived by an admission that the debt is unpaid, as well as by a new promise to pay the same; but such admission or new promise must be in writing, signed by the party to be charged therewith." Appellees argue that the admissions relied upon are not ones "upon which the law can base an implied promise" and do not "acknowledge a present existing debt or liability." The statute does not in terms require that these elements be present in the admission, and it is not for a court to write into a statute provisions wihch the Legislature has omitted. In Buss v. Kemp Lumber Co., 23 N. M. 567, 170 Pac. 54, L. R. A. 1918C, 1015, this court quoted with approval the following statements: "As a general rule the courts are without power to read into these statutes exceptions which have not been embodied therein, however reasonable they may seem. It is not for judicial tribunals to extend the law to all cases coming within the reason of it, so long as they are not within the letter.' * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Wherever the situation of the party was such as, in the opinion of the Legislature, to furnish a motive for excepting him from the operation of the law, the Legislature has made the exception, and it would be going far for this court to add to those exceptions.' The rule is established beyond controversy." [2] Under this rule the contentions of appellant might be disposed of in very few words. The statute does not require that the admission be one upon which the law implies a promise nor that it acknowledge a present existing liability. All that it requires is an admission that the debt is unpaid and if that is made the statute is satisfied. The implication that the law, apart from the statute, might' attach to the admission becomes of no consequence, for the statute itself declares its effect. We are spared the necessity of an investigation of the source of this statute or of its meaning and construction, or a comparison with similar statutes of other states, and the course of judicial interpretation in those states for all such matters is fully discussed in the opinion in Cleland v. Hostetter, 13 N. M. 48, 79 Pac. 804. We follow the construction laid down in that case. There it is said: This case is decisive for this jurisdiction of at least two points: First, that the cause of action is revived by the admission alone; and, second, that the admission need not in terms imply a promise or willingness to pay. If it were necessary to hold that the admission must confess an existing debt or liability, and disregarding the fact that the statute does not in terms so provide, does not the fact that the debt is unpaid show that it is existing? The statute does not cancel the debt, but merely bars the remedy. The obligation itself continues. Appellees argue that this was not an existing debt because they intended to defeat it by their plea of the statute. But, assuming that such intention is shown by the record, the argument is faulty. A definite admission that the debt is unpaid revives the cause of action irrespective of the intention of the debtor as to payment. To say that the admission is ineffective to toll the statute because the statute has already run and the debtor intends to avail himself of it is to reason in a circle. If he has such intention, he should not prevent its accomplishment by bringing himself within the plain terms of a contrary law. It is futile to say that the debtor, while admitting the debt to be unpaid, intends nevertheless to avail himself of the statute, for the statute itself says he may not do so. [3] Appellee also contends that the admission was ineffective because not made to the "Whatever may be the diversity of opinions, however, among the states which have adhered to the common-law language defining what shall be sufficient to toll the statute, we are of opinion that the statute of this territory does not stand on the footing of the older jurisdictions and that the rules there applicable are not bind-creditor. Here again an attempt is made to ing here. Unlike the Statute of James, our statute in terms provides that either a new promise or an acknowledgment may revive the action; and, not content with leaving to uncertainty or to diversity of authority the scope of the acknowledgment necessary to toll the statute, it in terms provides that 'an admission that the debt is unpaid' shall have that effect. This very explicit statutory declaration limits the field of authority applicable and renders it unnecessary to discriminate between the two lines interpreting the common law. "By statute in several jurisdictions it is not necessary that the acknowledgment shall imply a promise to pay; an admission of the debt as an existing liability is sufficient even though it is accompanied by words which repel any implication of such a promise.'" Again, upon the question of implied promise, the court says: "So in the concurring opinion of Mr. Justice Brewer, then a member of the Supreme Court of Kansas, that learned jurist emphatically disposes of the suggestion that an acknowledgment must under the Kansas statute evince a willingness to pay. He quotes this form of acknowledgment: 'I owe that debt, I admit it is an existing and just claim upon me, but I never will pay it.' 'Here,' says the learned justice, 'there is the express and clear acknowl edgment of an existing debt, but there is not only nothing indicating a willingness to pay but on the contrary an express refusal to pay. Is such an acknowledgment within the statute? Unhesitatingly I answer Yes.'" impose upon the admission a condition not which was relied upon to revive the note was ute. [4] The only remaining contention of appellees goes to the form of the admission. They say that the admission was made in answer to interrogatories propounded to them as witnesses, and that therefore their (203 P.) statements were involuntary and cannot be & Mill Co. v. Warnock, 25 N. M. 694, 187 Pac. used against them. 542, followed. Appellees were witnesses in their own behalf; the depositions were taken on their own motion; they were in no sense compelled to testify or to sign the depositions which contained the admission. The statements were voluntary in fact, and we know of no rule that makes them involuntary in law. That the statements as to the nonpayment of the note were made in a judicial proceeding, under the sanctity of an oath, would seem to lend strength to the admission instead of a reason for avoiding its effect. The statute does not except such admission from its terms, and we cannot do so. In O'Donell v. Parker, 48 Utah, 578, 160 Pac. 1192, it was held that including a barred obligation in the schedule of liabilities of a bankrupt would not revive it. The contrary is held in Hyde Park Flint Bottle Co. v. Miller, 179 App. Div. 73, 166 N. Y. Supp. 110, and Crosst v. Hall, 170 N. Y. Supp. 64. Other admissions in judicial proceedings have been held sufficient in a number of cases. 2. Cancellation of instruments 43-Reliance on false representations must be alleged to render proof thereof admissible. Where it is sought to cancel an instrument on the ground that its execution was obtained by false pretenses, statements, and promises, the complaint must allege that the plaintiff relied on such false representations, statements, and promises, and, if not so alleged, evidence thereof at the trial is properly excluded. 3. Contracts 97(2)-Transactions inconsistent with intention to rescind constitute "ratification." Any transactions by the plaintiff with the defendant relating to the subject-matter of the contract or agreement, inconsistent with an intention to rescind, amount to "ratification" of such contract or agreement. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Ratification.] 4. Husband and wife 267(3)-Oil and gas lease for five years, or as long thereafter as oil or gas may be produced, is a conveyance of "real property" in which husband and wife must join. An oil and gas lease for a period of five years, or as long thereafter as oil and gas, or either of them, is produced from said land by the lessee, conveys "real property," and under chapter 84, Laws 1915, requires that the husband and wife join in such instrument. In Blakenley v. Wyland, 115 Iowa, 607, 89 N. W. 16, an account filed by a guardian acknowledging the receipt of money was held to interrupt the running of the statute. In Roberts v. Leak, 108 Ga. 806, 33 S. E. 995, a recognition of liability in a pleading was held to toll the statute. In Dinguid v. Schoolfield, 73 Va. 803, it was held that a deposition signed by the maker of a note, admitting that it was in part unpaid, would defeat a plea of the statute. While these decisions are not directly in point here, they are somewhat analogous, since in all of them the admission was contained in some instru- | Bratton, Judge. ment, the filing of which was required in a judicial proceeding. There is no authority for holding that this class of admissions is to be excepted from the statute. For the foregoing reasons, the judgment of the district court is reversed, and the case remanded, with instructions to overrule the demurrer; and it is so ordered. RAYNOLDS, C. J., and PARKER, J., con cur. (27 N. M. 564) TERRY et ux. v. HUMPHREYS et al. HUMPHREYS et al. v. TERRY et ux. (Nos. 2490, 2508.) (Supreme Court of New Mexico. Jan. 24, 1922.) (Syllabus by the Court.) 1. Appeal and error 1078(1)-Assignments not argued deemed abandoned. Assignments of error not argued in the brief are deemed abandoned. Alvarado Mining [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Real Property.] Appeal from District Court, Eddy County; Suit by J. D. Terry and wife against S. G. Humphreys and the Artesia Oil & Gas Company. From the judgment, plaintiffs appeal, and from part of the judgment defendants file cross-appeal. Reversed and remanded, with directions. J. B. Atkeson, of Artesia, for plaintiffs. J. H. Jackson, of Artesia, and W. W. Arnold, of Robinson, Ill., for defendants. RAYNOLDS, C. J. This is a suit brought by appellants, J. D. Terry and Elmyra N. Terry, his wife, in the district court of Eddy county, to cancel an oil lease executed by J. D. Terry, the husband of the appellant Elmyra N. Terry, on the grounds that the execution and delivery of said lease were induced by false and fraudulent representa. tions, promises, and statements made to the appeilant J. D. Terry by S. G. Humphreys. Plaintiff below alleged that the representa. tions and promises were not carried out in whole or in part; that the land in question was a homestead, and community property of the appellants, husband and wife; that the appellant Elmyra N. Terry had not signed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] Assignments 3 and 4 are to the effect that the court erred in refusing to find that the plaintiff Terry was induced to execute and deliver the lease in question because of false statements, promises, and representations. As to these two assignments, it is sufficient to say that the complaint does not allege that the plaintiff relied upon such statements, promises, and representations, and the court properly excluded evidence of such promises and representations. "The bill or complaint should show that the misrepresentations made were material, and that the complainant believed that the misrepresentations made by the defendant were true, and acted in reliance thereon." 9 C. J. "Cancellation of Instruments," par. 151, subd. 5, p. 1235, and cases cited. Assignment of error No. 5, in which it is alleged the court erred in finding that the lease was to be placed in escrow, and that the escrow agreement was not carried out, is not well taken. The record shows that the plaintiff is estopped, having under the terms of the lease received an annual rental which by the terms of the lease was to be paid, and was paid, because the work contemplated was not begun within the time specified in the lease. The annual rental received was the consideration under the terms of the contract of the delay in starting the development work contemplated by the lease, and amounted to ratification. nor consented to the execution of the lease., pellant's brief, and are therefore deemed The defendant below, S. G. Humphreys, dis- abandoned. Alvarado Mining & Mill Co. v. claimed all interest in the lease, having as- Warnock, 25 N. M. 694, at page 695, 187 Pac. signed it to his codefendant, the Artesia Oil 542. & Gas Company, the appellee and cross-appellant herein. The defendant, the Artesia Oil & Gas Company, admitted the execution of the lease and filed a general denial as to the other allegations in the complaint. It also pleaded that plaintiffs were estopped by reason of having received an annual rental for an extension of such lease, which annual rental was to be paid in case the lessee did not begin work within the time specified in the lease. By way of new matter the appellee and cross-appellant, the Artesia Oil & Gas Company, alleged that it had spent large sums of money in an effort to discover oil and carry out the provisions of the lease. The case was tried before the court, which decided in favor of the defendant, the Artesia Oil & Gas Company, finding that two-thirds of the property leased was community property, but that the other one-third was the separate property of the wife, Elmyra N. Terry, and, as to the wife's interest in the property, the lease was void and of no effect. Appellant J. D. Terry assigns error as follows: (1) That the court erred in finding the husband had a right to execute a valid oil lease on the community property in question without the joinder of the wife; (2) that the court erred in finding that the 40 acres of land in question was not a part of the homestead of the plaintiff; (3) the court erred in refusing to admit and consider the testimony of the plaintiff J. D. Terry as to the false statements and representations made by the defendant S. G. Hum[3] "Any transaction with the defendant phreys in order to induce him to execute and relating to the subject-matter of the contract deliver the lease in question; (4) the court and inconsistent with an intention to reerred in not finding that the plaintiff was scind" amount to ratification. 9 C. J. "Caninduced to execute and deliver the lease in cellation of Instruments," par. 78, subd. 2, question by the statements, promises, and p. 1199, and cases cited. See, also, 4 R. C. representations made to him by the defend-L. "Cancellation of Instruments, § 26, and ant S. G. Humphreys, which were never per- New American Oil & M. Co. v. Troyer, 166 formed and carried out, and that by reason Ind. 402, 76 N. E. 253, 77 N. E. 739. thereof the lease was not binding on the plaintiffs; (5) the court erred in not finding that the lease was to be placed in the First State Bank of Artesia to await the develop ment of oil, and that, by reason of its not being so placed in escrow, it became null and void; (6) the court erred in not finding that the land in question was a homestead, and the lease could not be made without the wife's consent, and that, being so made, it was not enforceable, and should be canceled. The defendant the Artesia Oil & Gas Company, in case No. 2508, also appeals from that portion of the court's decision finding that one-third of the land leased was the separate property of Elmyra N. Terry. The two cases were consolidated for the purpose of argument and submission to this court. [4] The proposition offering the greatest difficulty in this case is contained in the first assignment of error, to wit, that the court erred in finding that the husband had a right to execute a valid oil lease on community property without the wife joining therein. The answer to this question involves a construction of chapter 84, Laws 1915, which is as follows: "Section 1. That section 16 of chapter 37 of the Laws of the Thirty-Seventh Legislative Assembly of the territory of New Mexico, (par. 2766) be amended so as to read as follows: "Sec. 16. Power of the Husband over Community Property. The husband has the manof the community, and during the coverture the agement and control of the personal property husband shall have the sole power of disposition of the personal property of the community, [1] As to assignments 2 and 6 regarding other than testamentary, as he has of his septhe homestead, they are not argued in aparate estate; but the husband and wife must |