| N.C. | Dec 5, 1831
Lead Opinion
Where an agent wishes to be excused from obligations or covenants into which he enters, he should affix the name of his principal to the deed. (Wilkes v. Back. 2 East 142). When he does not do so, but only signs his own name as agent, he is personally answerable. For in such case he undertakes for his principal. (Appleton v. Binks, 5 East 148). He undertake^ as agent, or as surety for his principal, that if the latter will not perform the contract, he will answer for him, in the manner stipulated.
The case of Potts v. Lazarus (2 Law Rep. 83) seems to have been decided in part upon the ground, that pub-lie and private agents were stibjectcd to the same liability. Of late however, their obligations are considered to be very different; the ih*st standing upon the principles of policy; the latter left to meet the contract» as the law of the case shall decide.
This subject is so fully and satisfactorily examined in Sumner v. Williams (8 Mass. Rep. 162) that the best service I can render the subject will be to refer to it.
It was also insisted for the defendant, Haddock, that he was protected from the recovery sought by the plaintiff, by the lapse of seven years after the death of his testator, before suit brought against him by the plaintiff; altlio’ the fact is, that the cause of action had not accrued, until within seven years next before the action was brought. The act of 1715 (Rev. c. 10, .§. 7) the protection of which is claimed in this case, is in the following words: u That creditors of any person deceased shall make their claim within seven years after the death of such debtor ; otherwise such creditor shall be forever haired.” To give operation to the act, there must not only be a creditor, but there must be a claim. What is a claim- ? It is defined to be a challenge by a man of the property or ownership of a thing, which he has not in possession, but which is wrongfully detained from him. (Plow. 359.) It is either verbal, or it is by an action brought. If relates to lands, or goods and chattels. (Shep. M. Claim. Jacob’s Latv Diet. Claim.) Johnson defines a claim to be “ a demand of any thing due; a title to any privilege or possession in the hands of another ; a demand of any thing that is in the possession of another.” When the legislature say, that creditors shall make their claim within seven years after the death of the testator, they must have had in contemplation such a creditor as had a claim to make ; such a claim as might be enforced in preesentu. They did not mean a claim that might arise in futuro which could not be enforced until it did arise or accrue-,
The statutes of limitation generally begin to run after the cause of action has accrued. Chief-Justice Abbott , says in Murray v. The E. I Co. (7 Eng. C. L. 66,) that “ it cannot bo said, that a cause of action exists, -unless . , . therc be also a person m existence, capable of suing.” 'Would not bis Lordship have been equally orthodox, if he had also said, although there is a creditor in exist-once, yet if there is no clai'in, or cause of action, the statute of limitation will not run. The Chief-Justice further observed in that case, that the several statutes of limitation, being all in pari materia, ought to receive a uniform construction, notwithstanding any slight variations in phraseology — the object and intention being the same.
So in tlio case of Jones v. Brodie, (3 Mur. 594.) it was v J held, in regard to the statute of limitation now under consideration, that if there was no creditor who could sue at the death of the debtor, the statute did not begin to run. So I think, altho’ there is a creditor, hut no claim that can he enforced, the statute will not rim until there is such a claim. From the account which is given of McLettan v. Hill, (Conf. Rep. 479) in Jones v. Brodie, I think it was rightly decided. Butintheprinted report of it, no notice is taken of the fact, that the debtor died before the creditor. Nor does the judgment of the court seem to be baaed upon that circumstance. And so far as the reasoning in that case is adverse to the opinion delivered in Jones v. Brodie, I do not subscribe to it. One reason given for the; opinion of the court in that case was, that executors and administrators after seven years were obliged to pay over whatever assets remained In their hands to the churchwardens, or to the treasurer of the state, for the benefit of creditors. My answer is, that it ought to appear, that it was paid over. If it was not, it was answerable to creditors. If it was paid over, it should not have prevented creditors from obtaining judgments ; but it might have been a good reason for not fixing the executor with assets.
Certainly much consideration is due to the sanctity of contracts, provided they are within the pale of the law» A man may legally contract, that he and his executors w|h in(iemnify a purchaser in case of eviction; which may not happen until many years after his death. He' may contract that a thing may be done after his death. He may give a bond payable in ten years, and die the next day.
The legislatures of the states are enjoined from passing any law impairing the obligation of contracts; and the alarm was taken in this state, when the legislature passed a law postponing the time for the fulfilment of a contract. (Jones v. Crittenden, 1 Law Rep. 385.) HoW cautious then should eburts be,.in giving judgment upon the construction of an act of Assembly, which will cut them off from fulfilment altogether. I see nothing in policy, which should lead to such a result. For if after seven years, the executors or administrators have paid over the assets to the University, which is now author-lzei*receive them, instead oí the church-wardens and treasurer of the state, they are not to be charged with assets. But the creditor is entitled to a judgment, which will be his passport to a remedy against the tras-tees of the University.
'T'}ie statutes of limitation generally give a specified _ ° , , „ time to sue m. Creditors may avail themselves of it ^ ^ley d° they are barred. In tiie present case no time is given to sue in ; and the contract becomes a mere nullity. The obligation of it is totally impaired.
Dissenting Opinion
disseniicnte. — I retain the opinion on the act of 1715, which I delivered in Rayner v. Watford. (ante 2 vol 338;) and think the action against the executor of Haddock is barred. My reasons are so fully stated there, that I need not now go into the question at length.. I will only observe, that the only term at which the statute makes the time begin to run is the death of the debtor. We have no power, I think, to interpolate the words, “ if the creditor’s action had then accrued,” or " seven years from the time the action shall have accru
For these reasons, my former opinion has been confirmed by reflectionand I have felt myself bound to express it. But in future, I shall consider myself under an equal obligation to hold for law, what I understand, in confe■rence with my elder brethren, to be their opinions. That is, that if the debt be due at the death of the debtor, claim must be made within seven years from the death, otherwise both the heir and executor are discharged: and that if the action arise after the death of the debtor, suit must be brought within seven years from the time the action accrued, or the heir and executor will in that case also he discharged : and if the suit be brought against the executor within seven years after it arose, but after the expiration of the seven years from the death of the debtor, and the executor hath, at the time of the suit brought, not paid over the assets, he shall answer the demand; but if be hath paid them over, he shall have the plea of fully administered found for him. But how it will be with the heir in this last case, is yet to be determined ; though I take it, he is to be bound, in case there be no personal estate in any body’s hands, provided he be sued by sci.fa. within seven years from the falling due of the demand, when that happens after the death of his ancestor; if he be sued within that time in debt on bond, in which he is named, whether there be personal assets or not.
Per Curiam. — Judgment aeeirmeb.
Lead Opinion
Where an agent wishes to be excused from obligations or covenants into which he enters, he should affix the name of his principal to the deed. (Wilkes v. Back., 2 East, 142.) When he does not do so, *155 but only signs his own name as agent, he is personally answerable. For in such case he undertakes for his principal. (Appleton v. Binks, 5 East, 148.) He undertakes as agent, or as surety for his principal, that if the latter will not perform the contract he will answer for him in the manner stipulated.
The case of Potts v. Lazarus,
In the present case, it is true, the defendants could not have (180) signed their principal's name, but as other agents they could and did sign as agents or as executors, in which case the rule is equally strong that they shall be bound as agents to the fulfillment of any contract into which they enter. If this should not be considered to be the case, such contracts or covenants would be mere nullities. For the covenantees could have no remedy upon the covenants against the testator.
This subject is so fully and satisfactorily examined in Sumner v.Williams (
It was also insisted for the defendant, Haddock, that he was protected from the recovery sought by the plaintiff by the lapse of seven years after the death of his testator, before suit brought against him by the plaintiff, although the fact is that the cause of action had not accrued until within seven years next before the action was brought. The Act of 1715 (Rev., ch. 10, sec. 7) the protection of which is claimed in this case, is in the following words: "That creditors of any person deceased shall make their claim within seven years after the death of such debtor, otherwise such creditor shall be forever barred." To give operation to the act, there must not only be a creditor, but there must be a claim. What is a claim? It is defined to be a challenge by a man of the property or ownership of a thing, which he has not in possession, but which is wrongfully detained from him. (Plow., 359.) It is either verbal or it is by an action brought. It relates to lands or goods and chattels. (Shep. Ab. Claim, Jacob's Law Dict. Claim.) Johnson defines a claim to be "a demand of anything due; a title to any privilege or possession in the hands of another; a demand of anything that is in the possession of another." When the Legislature say that creditors shall make their claim within seven years after the death of the testator, they must have had in contemplation such a creditor as had a claim to make — such a claim as might be enforcedin praesenti. They did not mean a claim that might arise in futuro, which could not be enforced *156 until it did arise or accrue. By an equitable (181) construction of the act, he must make his claim within seven years after it accrues. To require him to make it before would be to require of him an impossibility.
The statutes of limitation generally begin to run after the cause of action has accrued. Chief Justice Abbott says in Murray v. The E. I. Co. (7 Eng. C. L., 66), that "it cannot be said that a cause of action exists unless there be also a person in existence capable of suing." Would not his Lordship have been equally orthodox if he had also said, although there is a creditor in existence, yet if there is no claim or cause of action, the statute of limitation will not run. The Chief Justice further observed in that case that the several statutes of limitation, being all in parimateria, ought to receive a uniform construction, notwithstanding any slight variations in phraseology, the object and intention being the same.
So in the case of Jones v. Brodie (3 Murph., 594), it was held in regard to the statute of limitation, now under consideration, that if there was no creditor who could sue at the death of the debtor, the statute did not begin to run. So I think, although there is a creditor, but no claim that can be enforced, the statute will not run until there is such a claim. From the account which is given of McLellan v. Hill (Conf. Rep., 479), in Jones v. Brodie, I think it was rightly decided. But in the printed report of it no notice is taken of the fact that the debtor died before the creditor. Nor does the judgment of the court seem to be based upon that circumstance. And so far as the reasoning in that case is adverse to the opinion delivered in Jones v. Brodie, I do not subscribe to it. One reason given for the opinion of the Court in that case was, that executors and administrators after seven years were obliged to pay over whatever assets remained in their hands to the church wardens, or to the Treasurer of the State, for the benefit of creditors. My answer is, that it ought to appear that it was paid over. If it was not, it was answerable to creditors. If it was paid over, it should not have prevented creditors from obtaining judgments; but it might have been a good reason for not fixing the executor with assets.
(182) Certainly much consideration is due to the sanctity of contracts, provided they are within the pale of the law. A man may legally contract that he and his executors will indemnify a purchaser in case ofeviction, which may not happen until many years after his death. He may contract that a thing may be done after his death. He may give a bond payable in ten years, and die the next day.
The legislatures of the states are enjoined from passing any law impairing the obligation of contracts; and the alarm was taken in this State when the Legislature passed a law postponing the time for the *157 fulfillment of a contract. Jones v. Crittenden, 1 Law Rep., 385. How cautious, then, should courts be in giving judgment upon the construction of an act of Assembly, which will cut them off from fulfillment altogether? I see nothing in policy which should lead to such a result. For if after seven years the executors or administrators have paid over the assets to the University, which is now authorized to receive them, instead of the church wardens and Treasurer of the State, they are not to be charged with assets. But the creditor is entitled to a judgment which will be his passport to a remedy against the trustees of the University.
The statutes of limitation generally give a specified time to sue in. Creditors may avail themselves of it; if they do not, they are barred. In the present case no time is given to sue in; and the contract becomes a mere nullity. The obligation of it is totally impaired.