39 N.C. 1 | N.C. | 1845
The bill being then a mere substitute for the action of account, whatever time would be the bar at law, bars the (3) account here. Our act of limitations declares, that all actions of account rendered shall be brought within three years next after the cause of such action or suit, and not after, except such accounts as concern the trade of merchandise between merchant and merchant, and their factors or servants. This demand is not within the exception, but is within the enactment, and the inquiry is, when did the cause of action arise. It has been argued that the cause of action did not arise until after the relation of tenants in common had ceased between the parties, or until after a demand and refusal to account; for that, during all that time, there was no withholding by one, of what the other was entitled to receive. We believe that this is a mistake. The receipt of the entire profits by one tenant in common, as such, is indeed no ouster of his companion — it affects not the possession of the land — but it imposes on him, who receives, an immediate accountability to the other, for the part of the profits to which he is entitled. The enactment of the statute, that "actions of account may be maintained by one joint tenant or tenant in common, his executors and administrators against the others, as bailiff, for receiving more than his share, and against the executors and administrators of such," is decisive, that the action lies while the relation of a common holding continues, and consequently *3 that the cause of action may arise before the severance of that connection. It is sufficient in a declaration, after setting forth the holding as tenants in common, and the receipt of the whole rents, issues and profits, by the defendant, and the obligation of the defendant to render an account to the plaintiff of his share thereof, to aver as a breach that such account had not been rendered, although the defendant "had been often required so to do." See Declaration in 3 Wilson, 73, 74. Now it is a settled principle in pleading, that, where the cause of action does not arise until after a demand made, a special demand must be stated, and the general allegations of "saepiusrequisitus," or often required, will not answer. The (4) approved from of pleading the statute of limitations in this action is, that the defendant did not receive the profits "at any time within six years (with us three years) before the suing out of the original writ by the plaintiff," which could not be good unless such receipt did impose an immediate accountability. The many decisions in equity, where, professing to act in analogy to the statute, the courts refuse to carry an account of rents and profits further back than to six years before the filing of the bill, are strong indications that the action of account rendered could not be sustained for rents antecedently received. The exception in the statute, of accounts between merchant and merchant, would have been necessary, if, in all cases of confidential dealings, the statute did not commence until the connection had ceased, or a demand of account refused. All the evils intended to be remedied by the enactment — such as the loss of vouchers or other proofs in discharge — would be left in full operation, if time had no effect to cure them. Where one of two tenants in common takes the whole of the annual issues to himself, we hold that his companion has, thereupon, a right to an account for his share — and that the statute of limitations will bar the assertion of this right, unless it be made within the time declared by the statute.
It is, however, further insisted on the part of the plaintiff, that he had a right to the entire account demanded, because the defendant had, within three years before the filing of this bill, promised and undertaken to render such an account. We have met with no authority to show, and on principle we are not disposed to believe, that a promise will take any action out of the operation of the statute of limitations, but an actionfounded on promises — the action of assumpsit. See A'Court v. Cross, 11 E. C. L., 124; Governor v. Hanrahan,
The exceptions filed by the defendant to the commissioner's report, have also been heard and argued. The two first exceptions are in substance a repetition of the objection taken to *5 the decretal order upon the rehearing, and for the reasons above stated are sustained and allowed. The last exception objects to interest upon the rents. This is sustained as to the interest accrued before the filing of the bill, and overruled as to that accrued since. We are governed in this by analogy to the rule, which prevails at law on a promise to pay money on demand. A previous request is not necessary to the bringing of the action, but interest will not be allowed for detention of the money, until after a demand or suit instituted.
The account which has been taken is to be reformed pursuantly to this opinion, and the complainant is to have a decree for the balance with costs.
PER CURIAM. DECREED ACCORDINGLY.
Overruled: Northcott v. Casper,
(7)