23 S.E. 101 | N.C. | 1895
It appears from the complaint that plaintiff Kate S. Shackelford, then a feme sole, on 13 April, 1885, at the Spring Term of Edgecombe Superior Court recovered a (74) judgment for $536.89 against S. F. and B. P. Jenkins and John Killebrew; that the defendant in this action was Clerk of the Superior Court at the time of the rendition of the judgment and continued in the office until December, 1886, when his term expired; that the defendant docketed the judgment within the time prescribed by law, but failed to cross-index the same under the name of John Killebrew, one of the defendants in the judgment, as he should have done under section 433 of The Code; that Killebrew was the owner of real estate more than *54 sufficient in value to have discharged the judgment, after the allotment to him of his homestead, at the time when the judgment was docketed, and continued to own it until it was sold, for the benefit of other creditors than the judgment creditor, on 1 September, 1890, under a deed of trust executed by him to the trustee on 25 February, 1889; and that after this sale Killebrew became entirely insolvent and has continued so; that the other judgment debtors were insolvent when the judgment was rendered and have remained so; that by failure of the defendant to properly index the said judgment and the subsequent conveyance by deed of trust by Killebrew and sale under the trust, the plaintiff lost the amount of her judgment. The complaint does not set forth the date of the marriage of the plaintiff. The defendant in his answer admits the date and the amount of the judgment and his failure to index it as required by law, and he admits the ignorance of the plaintiff as to his failure, the expiration of his term of office in December, 1886, the date of the execution of the deed of trust by Killebrew, and the sale of Killebrew's land under the trust. The defendant then pleads the statute of limitations. The summons shows that the action was commenced on 3 April, 1893.
(75) Upon these facts alleged and admitted the court below, upon the pleadings, was of the opinion that the action was barred by the statute of limitations, and gave judgment against the plaintiff. It is insisted for the plaintiff in this Court that the statute of limitations did not begin to run until some consequential damage had occurred to the plaintiff's rights. If this proposition should be held to be correct, we see no reason why the time at which this consequential damage occurred should not be fixed when the deed of trust was made, as well as when the land was sold under the deed. The execution of the deed of trust itself was injurious in many ways to the property rights of the plaintiff, and if that act should be fixed as the time at which the statute should begin to run, then this action is barred, as will hereafter appear. It is also contended for the plaintiff that section 155 (2) of The Code, the three years statute — "An action upon a liability created by statute other than a penalty of forfeiture, unless some other time be mentioned in the statute creating it" — does not apply to the facts of this case, but that section 158 (10 years) does. We are of the opinion that section 155 (2) is the statute applicable to the facts in this case, for this action is founded upon a liability created by statute (section 433 of The Code) and there is no other time mentioned in this statute fixing a bar to a cause of action accruing under it. We are of the opinion, further, that the liability of the defendant was a continuous one, beginning from the day on which he failed to properly index the judgment (it was docketed within the time required by law) and continuing until he *55
ceased to be Clerk of the Court in December, 1886; and that therefore the plaintiff could have brought her action on any day in the intervening time or within three years after he ceased to be clerk, and not later. This case is distinguishable from that of Hughes v. Newsome,
No error.
Cited: Cherry v. Canal Co.,
(77)
