Opinion
December Term, 1826.
From Burke.
1. A residence in another State is not residence beyond seas within the saving of the act of limitations.
2. Where one covenants for himself, without mentioning his heirs, to convey land on a certain event, and dies before that event happens, his administrators are not liable; and it seems that the only remedy is against his heir in equity.
ASSUMPSIT upon a written contract, dated in 1803, to convey 300 acres of land on the Mississippi; "the titles to be made as soon as the Indian claim to said land shall be extinguished."
Badger for the defendants.
The declaration contained an averment that the defendant's intestate died before the Indian claim was extinguished, and the breach assigned was, "that the defendants had not made to the plaintiff a title to the land." Pleas, non assumpsit and the statute of limitations. To the latter, replication, "that the plaintiff was and had ever been a citizen and inhabitant of the State of South Carolina, and had not been at any time, from 1 January, 1818, to the commencement of this suit, within the State of North Carolina." It was admitted that the Indian title to the land was extinguished in the year 1819. There was a general demurrer to the replication, which was overruled by his Honor, Judge Ruffin, a verdict was found for the plaintiff, upon the plea of non assumpsit, and judgment rendered accordingly, from which the defendants appealed.
A principal question in this case arises (17) upon the construction of the ninth section of the act of 1715, Rev., ch. 2, which gives further time to plaintiffs beyond seas to bring their actions, provided they do so within a certain time after their return, and that question is, whether the words beyond seas mean that plaintiffs not beyond seas, but without the limits of the State, are within that saving. If that meaning is given to them, it is not because that is their natural import; they certainly have another meaning, to wit, what they plainly express, 1 W. Bl., 286, and so the Court thought in Ward v. Hallam, 2 Dall., 217. In that case the plaintiff was a citizen and resident of South Carolina, and it was held that he was not beyond seas, consequently not within the saving of the statute of limitations. See, also, Kirby, 299. In Maryland it seems to have been ruled otherwise (1 Harris and McHen., 89), and also in the Supreme Court of the United States, 3 Wheaton, 541.
Our act of limitation was passed in 1715, the first year (as we learn from our statute-books) of our colonial legislation. The territory then inhabitated, and the number of colonists, were very limited; we were rather an adjunct to Virginia than a distinct colony; we had little or no intercourse with any country, except Great Britain. It is most probable, in this state of things, that the saving in favor of plaintiffs was inserted in favor of British creditors, and not in favor of creditors who were only separated from their debtors by colonial limits.
If this was originally the fact when the act passed; if the saving was intended, as is expressed, only for British creditors and others really and literally beyond seas, shall we now give it a quite different and opposite construction, and allege as a reason that the state of things is much altered since the enactment of the law; or shall we not rather wait until it is the pleasure of the Legislature to make the alteration, as has been done in Massachusetts, 3 Mass. 271, and in New York, 3 Johnson, 263?
This question came before the six judges of this (18) State, in 1811, Whitlocke v. Walton, 6 N.C. 23. They held that the saving in the statute of limitation, as to plaintiffs beyond seas, did not extend to persons resident in other States of the Union. They considered that it would be mischievous that citizens of other States, particularly adjoining ones, with whom we have the greatest intercourse, should be permitted, at any remote period, to bring suit against the citizens of this State.
It does not appear, from an examination of the contract sued upon, that there has been any breach of it. The defendant's intestate died before the Indian title became extinct, in 1819. He therefore was prevented from a compliance by the act of God. Gwillam's Bacon, Condition, q., 1 Co. Lit., 218.
Nothing can be charged against the defendants. On this point, however, it is unnecessary to give an opinion.
I am of opinion that the rule for a new trial should be made absolute.
McDowell, by a written contract, bound himself to convey certain lands to the plaintiff (describing them) when the Indian title thereto should be extinguished. McDowell died before the Indian title was extinguished; and this action is brought against his executors for a breach of the agreement. All these facts appear upon the face of the declaration.
I am at a loss to see wherein this contract has been violated, either by McDowell in his lifetime or by his executors since his death.
When a person contracts to do what Lord Coke calls a local act, by which I understand an act that requires the concurrence of another, he has time during life to perform it, unless hastened by request; but he must do it at his peril during life (that is, even without request); if he does not, his contract is violated. If, however, he has a specified time to do it in, and he dies before the expiration of that time, the contract is not violated, for the act of God injures no man. Therefore, (19) Coke advises that his heirs be bound. Coke Litt., 216, a. But it is otherwise as to what he calls transitory acts, such as do not require the agency of the other party, as the payment of money or the like. If no time be specified, he shall do it presently in some cases, in others at a convenient time, and that without request. Where a time is fixed, and the person making the engagement dies before that time, it shall be done by his executors; for these acts may as well be done by the executors as the party, and the obligations devolve on the executors, whether named or not; but it is not so as to heirs; the obligation does not devolve on them, unless bound by their ancestor, nor is the ancestor or his executors bound for their acts, unless he binds himself for them, as in the case recommended by Coke, before cited; that is, when he covenants that he or his heirs shall do a local act, within a specified time, and he dies within the time, his executors are then bound that the heir shall do it. But this case is much stronger than when a person binds himself to do a local act, within a specified time, where even he is excused by death. For here he binds himself to do an act, after another act is done, over which he has no control, and he dies before this other act is done. It cannot, therefore, be pretended that McDowell violated his agreement in his lifetime, or that his administrators have since his death, for they have no estate to convey, and it was never designed that they should make the estate. If the testator had bound himself, without limitations of time, and died without performance, his wrong would have been thrown upon his estate. But here I cannot perceive that any wrong has been done by any one. In this case, I think that the lands in question descended to the heirs at law, burthened with the plaintiff's equity, and in this view of the case complete justice will be done. The personal representatives have done no wrong and the personal estate is the proper fund, in the first instance, to make compensation for the wrongs of the owner, whether founded on tort ( 20 ) or on breach of contract. If this action was sustained, those entitled to the personal estate might be disappointed, when the only wrong, if any, has been committed by the heir, in not performing the trust.
The judgment for the plaintiff should be reversed, and the judgment on the record arrested; but as there is a motion for a new trial on another ground, I am content to reverse the judgment. A new trial will follow of course, on the other ground. I concur with Judge Hall, in his construction of the saving in our statute of limitations.
TAYLOR, C. J., concurred.
Approved: Bennett v. Williamson, 30 N.C. 120; Harris v. Harris, 71 N.C. 176.