58 N.C. 357 | N.C. | 1860
The bill is filed to enjoin the collection of a certain note, and praying to have it surrendered.
The facts are these: On 28 April, 1854, the plaintiff purchased (358) a negro woman and child of the defendant McMurray; at the time of his purchase, plaintiff received a bill of sale for said slaves warranting them to be "sound and healthy." Some three weeks after the sale, plaintiff discovered that the woman had a cancer on her breast, which was pronounced incurable by physicians, and of which she ultimately died. Plaintiff gave his note for $600, the price of the woman and her child. Plaintiff soon afterwards paid $300 on the note, which was credited, and the note assigned to the defendant S. H. Mason, who brought suit on it in the Superior Court of Person County. The bill prays to have the collection of the note enjoined and the note itself surrendered. The bill was filed on 16 January, 1858, more than three years from the discovery of the unsoundness.
Cause set for hearing on bill, answers, exhibits, and proofs, and sent to this Court. Relief in this case is barred by the statute of limitations, and we deem it unnecessary, therefore, to consider or discuss the merits of the complaint.
The complaint is based upon a false warranty contained in a bill of sale for slaves between the parties, not under seal, entered into 28 July, 1854. Its falsity was discovered within seven weeks from the date of the instrument; and this bill to enjoin the collection of the purchase money, and for relief, was filed 16 January, 1858.
It is too late. A court of equity is governed by the statutes of limitations and presumptions in the same way that a court of law is. An action of assumpsit, or on the case in tort, upon this warranty, was barred in three years from the date of the bill of sale; so we hold a bill *284 in equity for relief, based upon it, is barred by that lapse of time, in analogy to the statute.
The bill must be dismissed at the costs of the complainant.
PER CURIAM. Bill dismissed.
(359)
