30 S.E. 315 | N.C. | 1898
Lead Opinion
This is an action on a promissory note, executed in South Carolina, bearing ten per cent, interest, payable to the plaintiff and signed by W. E. Collins, as principal, and Thomas Collins as surety, dated March 4, 1886, and due 9 months after date.
There had been several payments made on said note, the first within less than three years from the maturity of said note, and the others within less than three years of each other, the last payment being made by W. E. Collins on the 28th of October, 1892. Thomas, the surety, died intestate June 2nd, 1892, and there was no administration on his estate until November the 30th, 1894, and this action was commenced July 26, 1897.
The statutes of limitations and of usury are pleaded and relied on as defences to this action.
It being admitted that this is a South Carolina contract, the question of interest is governed by the statute law of that State.
As to the plea of the Statute of Limitations, there is more trouble than there was as to the plea of usury. Our Statute of Limitations — especially as applied to dead men’s estates in the hands of personal representatives— is a subject fruitful of much trouble, and it would be difficult to reconcile our opinions upon this subject. We will not attempt to do so in this opinion. But it seems to us that there are a few well established principles, that are not affected by what appear to be conflicts in reported cases, that should govern our judgment in the case at bar.
The note sued on became due on the 9th day of December, 1886, and plaintiff’s right of action accrued at that time. Defendant’s intestate was then alive and continued to live until the 2nd of June, 1892. The statute then commenced to run on the 9th day of December, 18^6, and plaintiff’s right of action would have been barred before intestate’s death but for the repeated payments made on the note. These payments kept it alive — whether paid by defendant’s intestate or his co-obligor, who was the principal in the note. Green v. Greensboro College, 83, N. C., 449; Moore v. Goodwin, 109 N. C., 218. And it is contended for the plaintiff that this payment — October 28, 1892 — made after the death of defendant’s intestate, stopped the statute, and as there was no one to sue until November 30, 1894,
It seems to be conceded that plaintiff’s right of action would be barred but for this last payment, and his right of action seems to hinge upon the effect of this last payment. Does it stop the statute and create a new causa litis, or is it a mark in viam by which time is counted ?
It has been held without any break in the line of decisions, from the time of our earliest reported cases, that, when the statute of limitations commences to run, no changed conditions in the parties will affect its running — that when it commences to run it continues to run. The earlier cases in our own reports announcing this doctrine will be found in the 3rd N. C., page 150 (5, Cobham v. Neil, Anonymous, 2 N. C., 416, Pearce v. House, 4 N. C., 722 (305). And there will not be found a discordant sound upon this point, from those decisions until-this time. If the plaintiff’s contention is true, these opinions are erroneous and should be so pronounced.
But this very point has been before this Court several times and has been thoroughly considered, and, as we think, settled.
In Jones v. Brodie, 7 N. C., 594, the very point was presented and decided by the court, Taylor, C. J,, delivering the opinion of the court. This opinion distinctly holds that where there is a party capable of suing after the right of action accrues, the statute commences and never stops, for any changed condition in the parties. In that case the defendant’s intestate died about a year
The cases of McKinder v. Littlejohn, 23, N. C., 66, Buie v. Buie, 24 N. C., 87 and Long v. Clegg, have been called to our attention. But they are not in point, they do not refer to or pretend to overrule any of the cases we have cited. There was no need that they should do so. They are not decided upon the statute of limitations, hut upon the statute of presumptions which is not the statute of limitations.
The statute under which these decisions were made only presumes.a payment. This presumption may commence at any time after the cause of action accrues, and may he rebutted by showing that the defendant was and had been all the time insolvent, or that he had been absent from the country, or that there had been no one to pay — no administrator. These are all evidentiary facts offered to. the jury for the purpose of proving that the debt had not in fact been paid. This evidence is for the jury and not for the court.
So we can see why such evidence, under the statute of presumptions, is competent- to the jury, to disprove payment in fact; and that these and like cases are not
The statute of limitations was suspended from the 20th of May, 1861, till January, 1870, but this was done by the Legislature, the same power that created the statute, and, of course, had the power to suspend it. So this suspension has nothing to do with the question we are now considering.
Our opinion, then, is that a payment does not stop the running of the statute of limitations. It is only a renewal of the original obligation — a mark in the race of time, and'the running of the statute, behind which the defendant cannot go in the computation of time. The acts of the parties have so fixed it, and they must be governed by it. But it does not stop the running of the statute, it runs on, and this is in harmony with all our cases that say when the statute commences to run it continues to. run, and no changed condition of the parties can arrest it.
It having been more than three years from the date of the last payment to the commencement of this action, the plaintiff’s cause of action was barred, and he cannot recover. There is error.
Error.
Dissenting Opinion
dissenting : This action is on a note payable to plaintiff and signed by W. E. Collins, principal, and Thomas Collins, surety, da,ted March 4, 1886, payable 9 months after date. The note bears 10 per cent, interest, and it was a South Carolina contract.' Thomas Collins died intestate June 2, 1892, and defendant qualified as his administrator November 30, 1894. There were several credits on the note, the last one paid by the principal on October 28, 1892, a few months after the
In order to prove that the legal rate of interest in South Carolina was 10 per cent, at the date of the note, his Honor allowed the plaintiff to put in evidence “a bound printed statute law, purporting to be statutes published by authority, as the public statute law of the State of South Carolina, of date for 1883.” Defendant excepted.
Our Code, Section 1338, provides that ‘ ‘ a printed copy of a statute or other written law of another State . . . contained in a book or publication purporting or proved to have been published by the authority thereof, shall be evidence of the statute law, etc.” Hilliard v. Outlaw, 92 N. C., 266; McDugald v. Smith, 33 N. C., 576, and The Code just cited support the' ruling of his Honor. Exception not sustained.
The defendant relied upon the statute of limitations, and insisted that the death of the surety severed his joint obligation and devolved the liability on his principal. He cited good authorities in other States to support his proposition as to joint obligations, but furnished none to support it when the obligation is joint and several, as it is under our statute. When a partial payment on a note is made either by the principal or any of the sureties before it is barred, the payment continues in force as to all the obligors. Green v. Greensboro College, 83 N C., 449; Moore v. Goodwin, 109 N. C., 218.
The payment before the bar stops the course of the statute as to all, and becomes a new starting point, from which the statute runs as if that was the day of maturity of the debt. And so at each payment. Green v.
Our effort tó reconcile the decisions on this question has not been successful. It has been generally stated that when the statute begins to run nothing can stop it, unless the statute contains some limitations. In some cases a literal interpretation worked gross injustice, and the court was induced to find some reasonable exception in such cases when it could do so. Soon after the Act of 1715, our predecessors were perplexed with the same difficulty that we have. The difficulty arises from facts like these: When the creditor dies before the right .of action accrues, or before the claim is barred, and no
Affirmed.
Lead Opinion
FAIRCLOTH, C. J., and CLARK, J., dissent. This is an action on a promissory note executed in South Carolina, bearing 10 per cent interest, payable to the plaintiff, and signed by W. E. Collins as principal and Thomas Collins as surety, dated 4 March, 1886, and due 9 months after date.
There had been several payments made on said note, the first within less than three years from the maturity of said note, and the others within less than three years of each other, the last payment being made by W. E. Collins on 28 October, 1892. Thomas, the surety, died intestate 2 June, 1892, and there was no administration on his estate until 30 November, 1894, and this action was commenced 26 July, 1897. *387
The statutes of limitations and of usury are pleaded and relied on as defenses to this action.
It being admitted that this is a South Carolina contract, the question of interest is governed by the statute law of that State.
The plaintiff produced on the trial a bound volume, purporting (621) to be the published laws of South Carolina in 1883, in which it appeared that 10 per cent interest was allowed in that State. This book was objected to by the defendant; objection overruled and exception. There was no error in this ruling. Hilliard v. Outlaw,
As to the plea of the statute of limitations, there is more trouble than there was as to the plea of usury. Our statute of limitations — especially as applied to dead men's estates in the hands of personal representatives — is a subject fruitful of much trouble, and it would be difficult to reconcile our opinions upon this subject. We will not attempt to do so in this opinion. But it seems to us that there are a few well-established principles that are not affected by what appear to be conflicts in reported cases that should govern our judgment in the case at bar.
The note sued on became due on 9 December, 1886, and plaintiff's right of action accrued at that time. Defendant's intestate was then alive and continued to live until 2 June, 1892. The statute then commenced to run on 9 December, 1886, and plaintiff's right of action would have been barred before intestate's death but for the repeated payments made on the note. These payments kept it alive — whether paid by defendant's intestate or his co-obligor, who was the principal in the note.Green v. Greensboro College,
It seems to be conceded that plaintiff's right of action would be barred but for this last payment, and his right of action seems to hinge upon the effect of this last payment. Does it stop the statute and create a newcausa litis, or is it a mark in viam by which time is counted?
It has been held without any break in the line of decisions, from the time of our earliest reported cases, that when the statute of limitations commences to run no changed conditions in the parties will affect its running, that when it commences to run it continues to run. The earlier cases in our own reports announcing this doctrine will be found in Cob- *388 ham v. Neil,
But this very point has been before this Court several times and has been thoroughly considered, and, as we think, settled.
In Jones v. Brodie,
McKinder v. Littlejohn,
The statute under which these decisions were made only presumes a payment. This presumption may commence at any time after the cause of action accrues, and may be rebutted by showing that the defendant was and had been all the time insolvent, or that he had been absent from the country, or that there had been no one to pay — no administrator. These are all evidentiary facts offered to the jury for the purpose of proving that the debt had not in fact been paid. This evidence is for thejury and not for the court.
So we can see why such evidence, under the statute of presumptions, is competent to the jury, to disprove payment in fact; and that these and like cases are not in conflict with Jones v. Brodie, supra, and that line of cases.
(624) The statute of limitations was suspended from 20 May, 1861, till January, 1870, but this was done by the Legislature, the same *389 power that created the statute, and of course had the power to suspend it. So this suspension has nothing to do with the question we are now considering.
Our opinion, then, is that a payment does not stop the running of the statute of limitations. It is only a renewal of the original obligation — a mark in the race of time, and the running of the statute, behind which the defendant cannot go in the computation of time. The acts of the parties have so fixed it, and they must be governed by it. But it does notstop the running of the statute, it runs on, and this is in harmony with all our cases that say when the statute commences to run it continues to run, and no changed condition of the parties can arrest it.
It having been more than three years from the date of the last payment to the commencement of this action, the plaintiff's cause of action was barred, and he cannot recover. There is
Error.
Concurrence Opinion
I concur in the dissenting opinion.
