*1 1886. LOMG V. Cl/EGG.
We assume that the Court as a bar, ruled the record reference, since otherwise there would have been no order yet statement leaves it the form of reserved and undecided Its as a full defencé at question. insufficiency stage action in necessarily further by determined proceeding, an account to be taken. We have overlooked directing suit, shown in the to the issue it misdescription record, was does not with correspond produced support. proof issue, an recitals contained the 8th affirmative response could not defence have been But as essence of this given. lies in the final decree and its we do notice the performance, the case variance, but consider matter of the as if defence, had been formed answer, and the correctly represented issue upon it.
There is no This will certified error. for further proceed- in the Court below. ings ' No error. Affirmed. CLEGG, & REID v. W. Administrator.
LONG G. Rebutted. Presumption Payment —How bond, prior payment 186S, 1. Under the law as it presump- by maturity, raised of ten was an artificial after its law, fact, not created tion of to be acted raised by any statute. is not show- 2. This one of but of be rebutted ing made, as are suf- that no fact or such circumstances presumption. ficient in law remove the suing, and is founded on of the creditor in the remissness is, paid, and suing that the debt has inference that his reason for not part inability positive for a of the ten where there is a to sue should not be counted. So, begun where a debtor died after the bond was due run, years; It was was had his estate for some no administration held, must be elimi- that the time which there was administration THE COURT. IN SUPREME Lona i. *2 during in esseto sue could was a which there
naled, only computing the ten years. counted y. Littlejohn, same 1 (Matthews McKinder Ired., 66; & 287; 2 Dev. Bat., v. Smith, Ingram v. 87; Rail 87 N. 5 4 v. Gibbs, C., ; 198 Buiev. Buie, 2Ired., Ired., ; 2 73 N. Quince Boss, 1 Woodhouse v. C., 30; Ired. 97; Simmons, Smith, Eq., y. (375); 2 (380); Hay., 2 378 BidXey Thorpe, 2 377 Grubbs Hay., Glayion, Hay., approved). y. Kimborongh, cited and 173, 525 Glenn 5 Jones’ Eq., ; dissenting 3 594 (Additional : Jones v. Murph., ; Brodie, cited ceses, 560). y. y. Burgwyn, N. C., Powell Grant Bush., 154; Brinlcley, the Court. J., dissented judgment from Ashe, of the Peace, from a tried on Justice appeal Civil action, Term, 1885, at Fall before Judge, jury, Montgomery, county. Court Superior Ibedell an adverse in a This Justice/s action, begun to the Court defendant’s Superior removed by appeal judgment, anote of the due on money for the Iredell county, recovery Max- intestate, William the defendant’s seal, under executed by and due 1868, of January, to the on 30th well, day plaintiff', after date. December, 1869, died Maxwell, William until on his estate September administration granted and the suit Watts, to J. A. present when letters issued The latter died instituted in the next month. pending were estate, de on the intestate non, and letters bonis action, defendant. to the granted present from the is the on, defencerelied payment presumed this, obligation, of the plain-
of time since the maturity interval, than more twelve tiff is rebutted insists, long which there was no death, intestate’s after the during years, to sue for note. and no one administration, non-payment that the on facts was of statutory these opinion, pre- and so instructed the had not been repelled, sumption rendered on and from the defendant, for the judgment find verdict appeal. plaintiffs for the
Mr. 31. L. plaintiffs. MoCorkle the defendant. 31. Furehes for Mr. D.
Losa v. Ole a. J.,C. stating Strictly facts). speaking, (after Smith, accrued, there when this cause of action no statute was, limiting the time in which suit a bond, but after the brought evidence, the absence an arti- rebutting ficial fact, óf as a to be raised, acted It was not a such as jury. arises from an adverse of land for occupancy thirty years, issue of a which State, was not allowed grant to be controverted; but of that no open disproof, showing had been made, facts, as in law, were held to be sufficient to remove the as in the debtors continued the entire period, explained the inaction of the creditor. His remissness furnished the source *3 the inference that the debt had been for he why does paid, wait, unless this is so ? The is not the whether time inquiry which there was administration should be or left out counted, the ten but whether the computing years, absolute inability the to a suit, creditor for less than ten bring except of the entire does not fully intervening space, adequately the account for delay, the repel presumption resting solely creditor’s inactivity. “It clear,” remarks “that a GastoN, forbearance or interest aof bond for principal require paymenhof twenty time at common reduced to the Act of years,” by (the “ after it a 1826,) due, becomes raises it has But this be raised forbearance paid. less for than combined with other circumstances twenty years, the inference of Matthews v. rendering payment probable.” 2 D. & 287. Smith, B.,
The eminent in a same later uses this Judge, language: “The a bond, raised from the presumption against without demand twenty years, or obligee, acknowledge- is, ment of the in one a sense, presumption law. obligor, law attributes to such a technical operation, is the if no court, duty opposing testimony
766
IN THE
COURT.
SUPREME
But the
fact of
offered,
advise
find the
jury
payment.
be attacked,
liable to
raised,
fact,
is an inference of
inference to be
it is the
confirmed
And
duty
testimony.
repelled
its
triers of the
to this technical presumption
allowing
to find the facts as it
force,
may appear
prima, facie
In a case decided in Pennsylvania 1882, Bentley’s Appeal, St., Penn. these modes of are repelling : mentioned
The evidence of; must consist
I. admission, An unconditional and either ex- unqualified defendant, or of the pressed within implied, twenty claim, and that it is still due. justness II. A account either the or interest, principal either which is an implied debt. recognition situation, III. or condition, circumstances of the parties, as the absence or defendant plaintiff foreign embarrassment country, plaintiff defendant.” it view, may At first not seem to be in with Hall harmony C., 87 N. where is held that death of the Gibbs, obli- and the want of administration for more than four gee, statutory thereafter, be counted make up were insufficient The same period, repel presumption. remissness out letters of administration those suing estate, entitled to the stand, evidence, personal rebutting somewhat the as the same remissness the credi- grount tor his demand and hence the by action, asserting explanatory inference that the debt has been But drawn, discharged.
case is different remains the whole time acces- sible to and none is sued out to enforce his process, liability. *5 THE COURT. IN SUPREME maintained, in the cases bemay upon prin-
The distinction foundation be admitted forbearance, that there can no ciple in- no one to forbear or to there is from can be drawn. and inference remissness dulge therefore, to in Buie are ruling repudiate We unwilling, an as unsettling recognized long supra, but not only authority, commending resting adjudication There is and there error, itself our approving judgment. be certified to be a de to which end will novo, must venire therein. for further below proceedings I concur fully (concurring). MerriMON, Justice, in this as delivered Chief of the Court by me that the rule as that it seems to clear, for will say myself, must, matter, in the nature of him, stated applied the true one. is of fact, statute to raise purpose next not within bond, right paid is accrues, has But this it been paid.
action upon fact it rebutted contrary, by any conclusive—on may not been to show that has not facts that tend reasonably paid. its is statute is, indeed, repose, purpose creditor, him to conclude prevent showing him the burden truth —it puts simply proving do has and this he evi- bond paid, may by any proper in their nature sufficient so destroy dence are facts, raised the statute. These facts be such rea- bond, in interest in the the creditor, show party of ten for to sue before years. sonable ground failing reason to sue must show that he has substantial He failing In Chief Justice Ball, Cr., 80, that time. within Dunlap “ said: The principle upon MARSHALL arises from reasonable principle, be rebutted facts which reason destroy any rule. that case it in order to create the held, In pre- *6 n Long Clegg. of of a bond, must have
sumption payment twenty years elapsed, of of exclusive to sue. plaintiffs disability -They were ofwar the Revolution alien enemies, and during the time not treated as war, was the twenty during nec- to raise the essary presumption. ease,
In this action on the bond, accrued right on the first 1868. The debtor died in July, obligor December, 1869. There was no administration his estate until Septem- 6th, ber 1882. This action in about a month begun that time. it not
Now is that the manifest, could not plaintiff sue, or col- lect his bond at all the time there was no administrator Did not deceased the reason of obligor? pre- rule.of creditor payment cease, could not sumption collect his bond? Was to sue, as inability quite strong, as cause good destroy presumption as of the continued of a from the time the right accrued, of action until the end of ten The years? latter cause has been held to be sufficient to always repel presumption.
It is said that have sued the plaintiff might intestate of defendant death, before his and so he but he was not might, do bound to so—no arisen payment then, and as he did not not to sue, surely loose his ought debt, because he could for ten years afterwards! Such injustice not the of the rule of spirit presumtion question.
It is that in such also, said cases, when the time begins run, such, can the continuance of nothing interpose prevent lapse. I cannot view correct. The accept nature of very of such contravenes it. principle itself that it be rebutted implies, by any inter- reasonableness, its and shows posing destroys that it is in truth. unfounded payment arising is in mentioned, different from a statute of respect limitation. The
77u IJSTTHE SUPREME COURT. v.'
latter is inflexible ceases operate only unyielding —it the statute. way canse prescribed by Error. Reversed. . I Ashe, dissenting. cannot concur the Court in this case. The note in majority *7 due on died the 1868.- The 31st day January, obligor December, 1869, no adminstration month of and there was Honor’s estate, his until the 6th 1882. His September, facts was, the trial that these instruction to on the below the and the statute raised a that bond had been presumption paid, had not been rebutted. of presumption no that inasmuch as there was The contended plaintiffs until sued, December, who been 1869, Septem- could have on the estate the administration was first ber, 1882, when granted that fact was sufficient to rebut the presumption of the obligor, of Buie and for the relied the case of payment, position that In defendant Ired., pleaded in that The note act of and the 1715, payment. due twelve months after date. Neil 1818, and case was given admin- 1823, and there was no of the died Buie, one obligors, held, until Court below his estate istration sued, no payment as there was and the decision was sustained Court. rebutted, have does not seemed to aof question Court, in this the entire stress argu- been discussed of 1715. counsel, was the effectof act ment plaintiff’s cited Mr. who the authorities argued A-ll Strange, had reference to that defendant in this Court, only the- case for statute. in that case was barred can be doubt that action
There died, due 1715, for the debt was debtor act was a creditor who have of his death there might and at that statute necessary all that was to put and that was sued, that there was 594—so Brodie, 3 Murphey, operation—Jones necessity deciding do There marked distinction is between the act payment. anil statute of the act of 1715. The to run
former when the action accrues; begins latter from the death of debtor. Buie v. Buie, supra, not seem to (cid:127)does have consideration particular given the fact five there were between the years intervening maturity and the death of the in all note of which time the have sued. In debtor been might opinion of the Court almost directed entirely of the act operation of 1715, reference was made only passing statute of pre- had If died before the note fell sumption. due, and before administration on elapsed estate, there n can no the authorities and the reason question, upon statute would not nor bar, would any thing, presump- tion arise from the to sue, forbearance because there would have no one could be This, sued. we think, the true dis- tinction. *8 Buie be not
If v. we do see how supra, it tois be with the decisions of reconciled subsequent Court. In the Law, v. Powell Busb. 154, Pearson, case of Brinkley, Judge, in Bide, the of Buie v. decide case the Court below, speaking used this Court, for the “When one is language: absent and than seven unheard of for more theie is years, a of presumption but there is no as to death; his the of presumption time his death, to refer it to one there is for more than nothing another. of there is a But when from presumption payment, of time, is a for there fixed when it is the otherwise, day payment ought made,” in the to have of support position, cited, and in 140; the Best more Presumption, recent case of §§137— C., N. the Burgwyn, Grant under con the was, whether of sideration payment was rebut the insolvency Ruffin, ted of in Judge delivering said : “The of true rule in only such a such a state of is, to to be require insolvency shown to have IN THE SUPREME COURT. next entire ten years existed maturity of ¿he could, debtor did because he will debt, as -prove pay, of this will law its- short not, permit destroy nothing time. Besides from this, inference own arising unlike payment, case like present, of a his of the death from continu- party, is raised being for seven unheard of law referred to- years, absent ally on which has relation to the debt a period to the rule laid down in this case, sup- due.” According became if the Powell Brinkley, the decision supra, ported two after the years maturity been solvent nearly for teu would not have years insolvency his debt, subsequent to rebut payment. been allowed can a distinction made between then, principle what Upon to rebut the is relied presump- ease where where that, case, as in this absence tion for the same If in is relied on purpose? to be sued ten from years, the entire commencing former case, to rebut the debt, must be shown presumption,, maturity it to be must- order shown, requisite by anology, why, for ten entire to rebut the presumption, beginning there was existence debt, the maturity an action could be cases are whom brought? hold iu the one if rule will good analogous, in the other. was alive and could have been the debtor sued at
In our case, about death, which occurred months twenty time before auy of the note. The maturity after the after the accrues. right action Rev. arises within when the note action accrues becomes Code, ch. §18. *9 to sue and one to be sued. there is a When person due, provided like the run, this statute of begins is so, -and note, from the of like limitation, maturity of statute will arrest its statute, disability arising, subsequently v. Gibbs, so held in this Court Hall It was N. progress. Johnson v. Phaikie.
C., 4. There the creditor had died after the maturity note sued and it was held, that as the on, statute of run him when begun alive, death subsequent did not obstruct the of the statute. The there running principle n decided to this mutatis applicable see also mutandis, Baker, Tucker v. decided at this Term. I am not inadvertent fact very eminent abilities
n ofthe made the decision in the distinguished case jurists Buie v. I would confess imputation presump tion in individual up setting my unsupported opinion against that of so but constituted, Court what I contend is, subse decisions it, are quent the Court inconsistent with and I rely n stated, heretofore that the case was made to turn the act of 173 and that the effect of the mainly upon act 1826, was but the more considered, recent slightly n C. in the case of Powell Brinkley, Pearson, Ruffin’s in Grant v. supra, Judge opiniou Burgwyn, supra, and the still more recent decision of this
Hall concurred in all Gibbs, then con supra, Judges this Court. stituting
*W. als v. P. PRAIRIE. T. JOHNSON et JOSEPH Land —Held Limitations. Adversely Conveyance —Statute convey- State, It 1. was rule of the which is in force in this that a common land, adversely void, grantor, held to the as to the ance holding possession claiming him, adverse and those under valid and passes the title as to all rest of world. §177, Code, allowing grantee This is altered to the sue extent of name, any grantor provided he, any person through in his own title, action, might notwithstanding maintain whom derive such void, by conveyance possession, such actual reason adverse was made. * J., having hearing not sit been of counsel did this case. Mérrimos,