Copeland v. . Collins , 122 N.C. 619 ( 1898 )

FAIRCLOTH, C. J., and CLARK, J., dissent. This is an action on a promissory note executed in South Carolina, bearing 10 per cent interest, payable to the plaintiff, and signed by W. E. Collins as principal and Thomas Collins as surety, dated 4 March, 1886, and due 9 months after date.

There had been several payments made on said note, the first within less than three years from the maturity of said note, and the others within less than three years of each other, the last payment being made by W. E. Collins on 28 October, 1892. Thomas, the surety, died intestate 2 June, 1892, and there was no administration on his estate until 30 November, 1894, and this action was commenced 26 July, 1897.

The statutes of limitations and of usury are pleaded and relied on as defenses to this action.

It being admitted that this is a South Carolina contract, the question of interest is governed by the statute law of that State.

The plaintiff produced on the trial a bound volume, purporting (621) to be the published laws of South Carolina in 1883, in which it appeared that 10 per cent interest was allowed in that State. This book was objected to by the defendant; objection overruled and exception. There was no error in this ruling. Hilliard v. Outlaw,92 N.C. 266; McDugald v. Smith, 33 N.C. 576, The Code, sec. 1338.

As to the plea of the statute of limitations, there is more trouble than there was as to the plea of usury. Our statute of limitations — especially as applied to dead men's estates in the hands of personal representatives — is a subject fruitful of much trouble, and it would be difficult to reconcile our opinions upon this subject. We will not attempt to do so in this opinion. But it seems to us that there are a few well-established principles that are not affected by what appear to be conflicts in reported cases that should govern our judgment in the case at bar.

The note sued on became due on 9 December, 1886, and plaintiff's right of action accrued at that time. Defendant's intestate was then alive and continued to live until 2 June, 1892. The statute then commenced to run on 9 December, 1886, and plaintiff's right of action would have been barred before intestate's death but for the repeated payments made on the note. These payments kept it alive — whether paid by defendant's intestate or his co-obligor, who was the principal in the note.Green v. Greensboro College, 83 N.C. 449; Moore v. Goodwin,109 N.C. 218. And it is contended for the plaintiff that this payment — 28 October, 1892 — made after the death of defendant's intestate stopped the statute, and as there was no one to sue until 30 November, 1894, when defendant qualified as administrator of the intestate obligor, and this action having been commenced on 26 July, 1897, was (622) within less than three years from the date of the defendant's qualification, and in time. We do not agree with the plaintiff in this contention.

It seems to be conceded that plaintiff's right of action would be barred but for this last payment, and his right of action seems to hinge upon the effect of this last payment. Does it stop the statute and create a newcausa litis, or is it a mark in viam by which time is counted?

It has been held without any break in the line of decisions, from the time of our earliest reported cases, that when the statute of limitations commences to run no changed conditions in the parties will affect its running, that when it commences to run it continues to run. The earlier cases in our own reports announcing this doctrine will be found in Cob- ham v. Neil, 3 N.C. 5; Anonymous, 2 N.C. 416; Pearce v. House, 4 N.C. 722. And there will not be found a discordant sound upon this point from those decisions until this time. If the plaintiff's contention is true, these opinions are erroneous and should be so pronounced.

But this very point has been before this Court several times and has been thoroughly considered, and, as we think, settled.

In Jones v. Brodie, 7 N.C. 594, the very point was presented and decided by the Court, Taylor, C. J., delivering the opinion of the Court. This opinion distinctly holds that where there is a party capable of suing after the right of action accrues, the statute commences and never stops for any changed condition in the parties. In that case the defendant's intestate died about a year after the plaintiff's cause of action accrued, and there was no administration for seven years. (623) Defendant plead the statute of limitations. The plaintiff there, as the plaintiff here, contended that the statute did not run during the seven years when there was no administrator — no one to sue. But the court held that as the statute started to run in the lifetime of defendant's intestate, it continued to run, and plaintiff's action was barred. This case was affirmed in Goodloe v. Taylor, 14 N.C. 178, and inArmistead v. Bozman, 36 N.C. 117, the opinion in this case being delivered by Daniel, J. The question seems to have been settled by these opinions and has rested from that time until now.

McKinder v. Littlejohn, 23 N.C. 66; Buie v. Buie, 24 N.C. 87, andLong v. Clegg, 94 N.C. 763, have been called to our attention. But they are not in point; they do not refer to or pretend to overrule any of the cases we have cited. There was no need that they should do so. They are not decided upon the statute of limitations but upon the statute of presumptions, which is not the statute of limitations.

The statute under which these decisions were made only presumes a payment. This presumption may commence at any time after the cause of action accrues, and may be rebutted by showing that the defendant was and had been all the time insolvent, or that he had been absent from the country, or that there had been no one to pay — no administrator. These are all evidentiary facts offered to the jury for the purpose of proving that the debt had not in fact been paid. This evidence is for thejury and not for the court.

So we can see why such evidence, under the statute of presumptions, is competent to the jury, to disprove payment in fact; and that these and like cases are not in conflict with Jones v. Brodie, supra, and that line of cases.

(624) The statute of limitations was suspended from 20 May, 1861, till January, 1870, but this was done by the Legislature, the same power that created the statute, and of course had the power to suspend it. So this suspension has nothing to do with the question we are now considering.

Our opinion, then, is that a payment does not stop the running of the statute of limitations. It is only a renewal of the original obligation — a mark in the race of time, and the running of the statute, behind which the defendant cannot go in the computation of time. The acts of the parties have so fixed it, and they must be governed by it. But it does notstop the running of the statute, it runs on, and this is in harmony with all our cases that say when the statute commences to run it continues to run, and no changed condition of the parties can arrest it.

It having been more than three years from the date of the last payment to the commencement of this action, the plaintiff's cause of action was barred, and he cannot recover. There is

Error.