1 N.C. 479 | N.C. | 1804
The testator was bound to pay a debt to the intestate at a future day, before which both parties died, and no administration was taken on M’Lellan’s estate till many years after the debt became due. The plaintiff now brings his action within seven years after administration obtained. The defendant pleads the act of 1715, ch. 48, f. 9,—the plaintiff replies, and the defendant demurs.
The plaintiff infills, that the term of seven years limited in the act, should only run from the time that he obtained letters of administration; that before that time, there was no creditor in existence, so that there was nothing for the statute to operate against; and that a creditor could not be barred before he existed, and relied on
In the case Curry & uxor vs. Stephenson, it is said the Judges were of opinion, that the statute would not bar the recovery on the reasoning in Saffyn’s case, nor on the decision; for, in that case, the judgment of three Judges against two, was, that the statute was a bar; but the case of Curry & ux. vs. Stephenson, went off on another point.
In the case Saffyn vs. Adams, 2 Cro. 60, the case of Sanders v. Stanford is cited, and as there stated, is this : “ It appears that there was a lease “to commence on the expiration of a lease then “existing; he who had the future interest died; “ the first lease expired ; the lessor enters and le- “ vies a fine with proclamations, before any ad- " ministration committed; the five years passed ; “ and after administration was granted, the ques-“ tion was, whether the administrator should have “five years? And it was resolved that he should, “for none had a right to enter before." The same case is stated in the case of Coates vs. Atkinson, Goldsborough 171, somewhat different, as follows: “ Stanford case, was a lease to “commence at a day future, and then a fine " and non-claim before the commencement, shall "not bar the right of that lease; but a fine after “ the day of commencement, although before " any entry of lessee, shall bind," and cites Jaf-fyn's case. The case of Sanders vs. Stanford, is
In the case of Sanders vs. Stanford, the lessor sustained no injury by the entry of the administrator; the lease was his own act, of which he could not be ignorant, and he was bound in conscience to admit. An executor is only a trustee, and bound to deliver up the property with which he is entered, after the expiration of one year; being then divested of the property, he is no longer bound in conscience to pay any debt chargeable on that property; but notwithstanding this, the law obliges him to be accountable to creditors for seven years, and empowers him to demand security from the legatees, or next of kin, before he makes distribution or payment of legacies, to indemnify him against any legal recovery. This law, however after seven years, bars the creditor from any recovery against him, therefore it would appeal to a common observer, that no legal recovery could be had against an executor after the expiration of that term; more especially, as if after that time he holds any of the
Upon the whole, we are of opinion that judgment in this case should be entered for the defendant.