Under the provisions of an Act of the General Assembly of the session of 1881, the Charter of the town of Fayetteville was surrendered and repealed. At its session in 1883 the General Assembly created a taxing and police district out of the territory included in the boundaries of the old town of Fayetteville, the taxing and police district to be called Fayetteville. Under the last mentioned Act all of the property of the former town of Fayetteville was transferred to the custody and control of the Board of Oimmission-ers appointed by the General Assembly. The public buildings, streets and squares and the policing of the same were placed under the charge of those Commissioners. Taxes were levied by the General Assembly with a specification as to the purposes to which they were to be applied. The General Assembly, at its session of 1893, incorporated the inhabitants within the old territory of the town of Fayetteville under the name of the City of Fayetteville.
The plaintiff in 1880 and 1881, being the owner of 52 coupons cut from bonds executed by the town of Fayetteville, presented the same for payment, and upon payment being refused .brought two actions against the town of Fayetteville to recover the amounts due on the coupons. Judgments were rendered at August term, 1882, of Cumberland Superior Court in the two actions in favor of the plaintiff, but between the time of action begun and judgment rendered the charter of the then defendant, the town of Fayetteville, was surrendered and repealed.
The complaint in the present action embraces three causes of action. The first is founded upon the judgments procured in 1882 by the plaintiff against the town of Fayetteville; the *484 second upon the coupons themselves, upon which the judgments were procured, and the third upon the plaintiffs alleged right to have the two cases against the town of Eayetteville, which were pending in the Superior Court of Cumberland ■County, at its August Term, 1882, reinstated on the Civil Issue Docket, brought forward and consolidated into one action, and judgment rendered therein for the amount due on the 52 coupons mentioned in those actions. The plaintiffs allegations are that the judgments against the town of Eayetteville, or the coupons, if the judgments are invalid, are still due; that although the charter of the old town of Eayette-ville was repealed and surrendered under the Act of 1881, yet the Act incorporating the City of Eayetteville rehabilitated the old town of Fayetteville, and that the city is the successor of he old town, and therefore liable to the plaintiff for the amount of the coupons.
The defendant admits the repeal of the charter of the town of Eayetteville, that the coupons have never been paid, that the judgments were entered against the town of Fayette-ville after its charter had been surrendered, and that the inhabitants of the old town have been incorporated by the Act of 1893 under the name of the City of Eayetteville. The defendant avers, however, that the judgments procured by the plaintiff against the town of Eayetteville were void and denies that the City of Eayetteville is the successor of the old town of Eayetteville, or liable on the coupons or on the judgments.
It is of the first importance then to consider whether the City of Eayetteville, the new corporation, chartered by the Act of March 1893, is so far the successor of the town of Eayetteville, the old corporation, as to be liable for its debts. If this question is answered in the affirmative, the Statutes ■of Limitation set up in the answer, as a defence to the action,
*485
will then have to be discussed and decided. Tbis court at one time adopted the'old common law rule, that, upon the civil death of a corporation, the grantors of its real estate took it by reversion, and the debts due to and from it were extinguished.
Fox v. Horah,
Apparently each corporation created by a separate charter is a distinct entity, and from this it may be argued with plausibility that no two successive corporations can be connected unless they are connected by the terms of the Act which created them. But that view must be often only apparently true. If, in the case of a municipal corporation, the old charter should be repealed and a new one granted, and the new one should include the same territory, substantially the same people, and the great mass of the taxable property of the old corporation, and the property of the old corporation used for public purposes, be passed over to the possession and control of the new corporation without consideration from the new corporation, it would be difficult to appreciate how. the property and the benefits of the old corporation could be received by the new one without the shouldering of its responsibility by the new one. It must be that the creditors of a defunct municipal corporation, whose money and property have helped to build up and improve the wealth and influence' of the old corporation (although they must submit when a charter is absolutely abolished, and while the old territory and people remain unincorporated) have the right in equity to have a new corporation, embracing the same territory and *486 tile same inhabitants and the same taxable property, considered as the successor of the old, at least so far as its liabilities for the debts of the old corporation are concerned. When the old charter is repealed and a new one is granted, upon which latter are bestowed by law all the benefits and property of the old, the burden of the old must be borne by the new; where the benefits are taken, the burdens are assumed.
So strong has this view been impressed upon the Courts that in O’Conner v. Memphis, supra, the Court said: “But in no case have the Courts ever failed to declare the identity or succession, or continuity of the two corporations where the same corporators and the same corporate property have passed to the new corporation. The terms of the charter have in such cases never been construed otherwise.”
The same doctrine was laid down in
Mount Pleasant v. Beckwith,
It appears also in the case of Broughton v. Pensacola,, supra, that the repeal of the charter of Pensacola was under one Act and the reincorporation of the city under the same name was under a different law.
In the case before us 12 years elapsed between the repeal of the charter of the town of Fayettevill and the incorporation of the City of Fayetteville; but we cannot see how that can alter the principle involved in the case. The foundation on which the liability of the new corporation rests is that the new corporation embraces the same territory, the same corporators, the same taxable property, and has received the property of the old corporation without consideration; and for these benefits must, in return, bear the burdens of the old corporation. The liability in such a case commences from the receiving of the bneefits, and whether those benefits were received one or ten years, or more, from the repeal of the old charter, malíes no difference.
But it is argued for the defendant that even if the Act of 1893 did have the effect to make the City of Fayetteville the successor of the old town of Fayetteville, yet the new corporation was not liable for the debts of the old corporation, but on the other hand was expressly prohibited from assuming the debts of the old town or from paying any part of them, except such as were provided for in the Act of 1883, and the plaintiff claimed no benefit under that Act. The position was without any citation of authority to support it, and to us it did not seem to be sound (and the authorities so far as they have been examined by us are all the other way). If the law was as is contended for by the defendant, then it would be in the power of the Legislature to destroy the claims of credi *488 tors against municipal corporations by simply repealing tbeir charters on one day, and on the next re-incorporating the same inhabitants in the same territory, taking care to insert in the repealing Acts a provision to the effect that the new corporation should not be liable for the debts of the old. Such legislation would be contrary to every idea of justice and law, and obnoxious to the Constitution of the -United States, and to that of our own State.
In Amy v. Selma, supra, it appeared that the Act incorporating Selma authorized the proper officials to levy taxes, but declared that no funds derived by the corporation from the collection of taxes or from any other source should be used for the payment of any of the debts of the city of Selma, the old corporation; and as we have seen, the Supreme Court of Alabama in that case held that the provision was inoperative-against the debts and liabilities of the City of Selma, and the Supreme Court of the United States, in Mobile v. Watson supra, cited the decision with marked approval.
But the defendant further contends that even if it should be held by this Court that the debts against the town of Fayette-ville were not extinguished by the repeal of the town charter and that they are valid and good against the city of Fayette-ville, yet die officials of the new corporation are not only not authorized to levy taxes to pay those debts, but are prohibited from doing so by the very terms of the Act of incorporation, and that “the power of taxation is legislative, and cannot be exercised otherwise than under the authority of the Legislature,” as was said in
Merriwether v. Garrett, supra.
That is a good proposition of law, and it was applicable to the condition of affairs which appeared in that case, as well as from the view of the law which that Court took of the effect of the repeal of the charter of Memphis, and the one creating out of the same territory a taxing district. That court held
*489
that the charter of Memphis was absolutely repealed, and treated the case of
Merriwether v. Garrett,
upon that view. The effect of the Act creating the taxing district was not directly before the court. We have seen that the Supreme Court of Tennessee in
Luehrman v. Memphis,
Now, to apply the law as we have found it to be to the particulars of the case before us: Under what circumstances did the debt of the plaintiff against the town of Fayetteville arise ? and what were the means provided at the time the debt was contractd for its payment? The Western Railroad was incorporated by the General Assembly of North Carolina, at its session of 1852, by Chapter 147. By an Act passed at the same session (Chapter 207), the town of Fayetteville was authorized to subscribe for shares of stock in that railroad company, the shares of stock to be held for the use and benefit of the town. To meet the payment of any subscriptions that might be made, the town was authorized to issue and sell bonds bearing interest, and by Section 4, to levy and collect taxes for the payment yearly of the interest, and to create a sinking fund for the ultimate payment of the debt, and to invest from time to time, in profitable stock, the surplus of thier taxes to meet the maturity of the bonds. An election was held according to the provisions of the Act, and a majority 6f the qualified voters cast their ballots for “subscription,” and the bonds were issued. On the 22nd of March, 1875, the General Assembly of that year passed an Act, Oh. 248, in which the town of Fayetteville was authorized to fund the bonded debt of the town, contracted for stock of the Western Railroad Company by virtue of the Act of 1852. The debt was funded, and the coupons on which this suit was brought are clipped from the bonds issued by.the town under the funding Act of 1875. It appears then from the above statement of the facts that the bonds were originally issued by the town with the express provision in the Act which authorized *492 their issue (1852) that the town authorities were to levy and collect an annual tax upon the property and polls within the town, with which to pay the interest (coupons), and in the same way to raise a sinking fund to pay the bonds at maturity. The Act of 1875, authorizing the town to fund the original bonds, provided for the payment of the new bonds in the same manner and to the like extent as were the old bonds.
It follows then from the conclusion at which we have arrived, aided as we have been by the decisions of other Courts, that the Act of 1852 was the basis of a contract between the holders of the bonds which were issued to buy the. stock of the Western Railroad Company, and the town of Fayetteville, by which the town authorities were to levy a tax upon the property and polls of the town, with which to pay-the coupons, and also to provide a sinking fund with which to pay the bonds at maturity; that the coupons upon which this suit was brought were clipped from the bonds issued under the Act of 1875, under which the old bonds were funded; that the new bonds are of the same nature as the old bonds and' were invested with the same security for their payment; that these bonds are still in force, and that the obligation to pay the same together with the coupons (the interest) rests upon the City of Fayetteville as the legal successor of the town off Fayetteville.
The provisions in the Act of 1893 incorporating the City of Fayetteville, which prohibit the levying of taxes for the payment of the bonds by the new corporation, are invalid and can not be regarded. In support of this position we refer to the case of Mobile v. Watson, supra. “All laws passed since the making of the contract whose purpose or effect is to take-from the City of Mobile, or its successor, the power to levy the tax and pay the bonds, are invalid and ineffectual, and will be disregarded; to Wolf v. New Orleans, supra, where th# *493 ■Court said: “Tbe Courts therefore treating as invalid and void tbe legislation abrogating or restricting tbe power of taxation delegated to tbe municipality upon tbe faitb of wbicb contracts were made witb ber, and upon tbe continuance of wbicb alone they can be enforced, can proceed, and by mandamus compel, at tbe instance of parties interested, tbe exercise of that power as if no legislation bad ever been attempted.”
Tbe conclusion at wbicb we have arrived as to tbe liability of tbe city of Fayetteville, tbe new corporation, for tbe debts of tbe town of Fayetteville, tbe old corporation, makes it necessary for us to discuss and decide the question of tbe statute of limitations set up by tbe defendant in the answer, as a bar to tbe action. The coupons being for interest, to become due on tbe bonds, are a part of tbe bonds and partake of their nature, and the Statute of Limitations therefore wbicb applies to tbe bonds themselves must be tbe same statute wbicb is applicable to tbe coupons. The bonds are specialties, and so are tbe coupons. Tbe ten years statute begins to run against coupons from tbe time of their maturity. Am. and Eng. Enc. Vol. 8, p. 18;
Clark v. Iowa
City,
But the defendant insists that the Statute of Limitations began to run against the coupons in 1881 when they fell due, and that more than ten years elapsed between that time and the time when this action was begun; and that when the statute once begins to run, no subsequent happening or event can obstruct its course. That, as a general proposition of law, is true, and we have numerous decided cases in our own reports which lay down that rule in the clearest language. In
Hamillon v. Sheppard, 1
N. C., 115, the plaintiff insisted that his action was not barred because there was fraud in the conduct of the defendant, but the Court said: “But it (the matter on which the plaintiff relied to take his case out of the operation of the statute) is not in the Act, nor is there anything like it, and we cannot put it there. It is neither in its letter nor spirit.” In
Vance v. Granger's Ex.,
■ It is unnecessary to consider at any length the effect of the judgment which was entered up against the town of Fayette-ville after the charter of the town of Fayetteville had been repealed. For the purposes of this case we will treat it as void, as was contended by the defendant. The second cause of action founded on the coupons is good.
In conclusion we are of the opinion that the city of Fayetteville, the new corporation, is the successor of the town •of Fayetteville, the old corporation; that the debts of the old corporation were not extinguished by the repeal of its charter; ■that the same power to assess and collect taxes to pay the ■plaintiff’s claim, which existed at the time that the bonds were issued, is in the new corporation and has not been affected by the provision in the Act incorporating the City of Fayette-ville, which prohibits the collection of taxes for the payment of claims like those of the plaintiff; that the Statute of Limitations did not run during the time when the territory and inhabitants of the territory formerly embraced in the town of Fayetteville was a taxing district, and therefore is not a bar to this action; and that the plaintiff is entitled to a peremptory mandamus requiring the proper authorities of the City of Fayetteville to levy and collect taxes upon property and polls within the city, with which to pay the plaintiff’s claim.
Affirmed.