36 S.E. 172 | N.C. | 1900
The plaintiffs excepting to so much thereof as established the claim of defendants, took an appeal. The nature and circumstances connected with defendants' claims are discussed in the opinion. This proceeding was begun by a creditor of John R. Beaman, deceased, on 23 February, 1894, against the administratrix of said Beaman and his heirs at law to procure a settlement of his estate, and to subject his realty, under the provisions of the Code, sec. 1448. At February Term, 1895, a referee was appointed "to ascertain the indebtedness of the estate and the parties to whom it was due." Some time after this action was begun, the children of John R. Beaman, claiming that their father was indebted to them in the sum of $10,725, with interest thereon from 15 July, 1861, for proceeds of realty which, as the guardian of some of them, he had procured to be sold, agreed with their codefendant, and sister, the administratrix, to refer the claim under the Code, sec. 1426. The referees reported on 1 April, 1896, allowing the claim in full, although three of the children were of full age at the time of the sale in 1861, and parties to the proceeding under which the land was sold. The referee in this action properly disallowed the claim based upon such award under the Code, sec. 1426, and (768) ruled that after one creditor has instituted a creditors' bill he can not be cut off from contesting another creditor's claim and pleading the statute against it, by a collateral proceeding between the administratrix and such other creditors. The proceedings authorized by section 1426 are between a creditor and the personal representative in the ordinary course of administration, and have no application when an action *494 has been begun under the Code, sec. 1448, to take the administration into the hands of the court, which thereupon, appoints the referee to ascertain the indebtedness and a commissioner to sell the property, and takes in hand the settlement of the estate. Besides, the children and heirs at law of Beaman, as well as the administratrix who assented to the attempted reference, were parties defendant in this action, and bound by the reference herein to determine the indebtedness. However, that side is not appealing, and the rejection of the attempted award of 1 April, 1896, is not really before us upon any exception.
The referee allowed the claim of those five of the eight children who were wards of Beaman at the time of the sale, and that brings up the question of the statute of limitations, the decision of which in favor of the plaintiff renders it unnecessary to discuss his exceptions to the admission of evidence. It is proper, however, to say that the children seeking to prove their claims against the estate of John R. Beaman were incompetent under the Code, sec. 590, to prove nonpayment of the indebtedness to them by their father, or that he never informed them of this indebtedness, and it was error to admit their testimony.
The referee finds as facts that on 19 February, 1861, John R. Beaman qualified as guardian of his five minor children; that at February Term, 1861, as their guardian, and with the joinder as parties (769) with him of his three adult children and their husbands, he filed a petition for sale for partition of 1350 acres of land which had been devised to his said children by one Carraway, the property was sold at the price of $10,800 to one Cobb, who paid the purchase money, netting $10,725 after deducting court costs, to the clerk and master, who executed a deed to the purchaser upon confirmation of the sale. The referee finds that the five-eighths belonging to the wards was paid over to John R. Beaman, guardian, but that there is no evidence that the shares of the three adults were paid to him. He finds that none of said wards have been paid their shares by their father, and that they had no knowledge of the facts upon which their claim is based, until within three years before their said claim was presented to him at the hearing, 17 March, 1897. As the referee finds that the assets of the estate are insufficient to pay all the indebtedness, any creditor has the right to set up the statute of limitations (which is here pleaded by the plaintiff) against any other, although it has not been pleaded by the administrator. Wordsworth v. Davis,
The statute of limitations being pleaded, the burden is upon the claimants to show that they are not barred. House v. Arnold,
The referee holds, however, and was sustained by the judge below, that though "this claim was already barred when chapter 269, Laws 1889, was passed, it was revived thereby." That chapter struck out the words, "in cases heretofore solely cognizable in courts of equity," from section 155 (9), of the Code. The ruling, that though a debt is barred by the statute of limitations the Legislature may remove the bar by repealing the limitation after it has accrued, is within the reasoning of Pearson, C. J.,in Hinton v. Hinton,
There is no allegation of fraud as to John R. Beaman in the pleadings filed by his children as the foundation of their claim — nothing beyond the mere averment that they (the children) were not aware, till 1894, of the sale of the land and the receipt of the money by (771) their father. There is no averment of any fraudulent concealment or any concealment of the facts by him. The averment made is not sufficient to predicate a finding of fraud; nor is there any proof of fraud; nor is there any evidence tending to show fraud on his part. Counsel for the children disavow any intention to charge their father with fraud in fact — "any intentional or willful fraud" — but say that their ignorance of the facts is proof of constructive fraud by him. It shows their confidence in their father, from whom they expect to receive *496 a large estate, and who in fact made them large advancements, and their abandonment of all matters to him, but the inferential finding of fact (for it is not directly made) by the referee of "fraudulent concealment" by him is without any evidence or any allegation in the pleadings to support it, and the exception on that ground must be sustained. The children had legal notice of the facts. The will of Carraway, under which their title accrued, was probated and recorded in 1844, the land devised to them was sold for partition in 1861 at the courthouse door after due advertisement under a decree in equity, the proceedings in equity were duly recorded, to which three of the children who were adults, together with their husbands, were parties praying the sale, and the decree of confirmation was properly enrolled. The deed from the clerk and master to the purchaser was duly recorded in the register's office, and was notice to the children as well as to all the world, and they were put on notice by the recitals therein contained.
There was the widest and most entire publicity, and an entire absence of any proof tending to fix John R. Beaman's memory with the stain of any fraud upon his children. The sale was in 1861; the youngest ward became of age in 1879; they all lived in the county, it seems, except one who has since left the State, and it is not to be held that all through these years, there was constructively a "fraudulent (772) concealment" of a transaction conducted with such publicity. The limitation is not "three years from the discovery by a party of rights hitherto unknown to him," but "from the discovery of factsconstituting fraud."
The children may have been negligent in inquiring as to their rights or in asserting them, or may have forgotten facts which they once knew, and which three of them are conclusively fixed with having known at the time of the sale (since they can not impeach the decree collaterally), but there is nothing to sustain a finding of fraud. This being so, the act of 1889 has no bearing and requires no discussion.
Error.
Cited: Bonner v. Stotesbury,