Opinion
(Decided 27 February, 1900.)
Note Under Seal — Statute of Limitations — Endorsed Receipts — Evidence.
1. When the statute of limitations is pleaded, the burden of repelling the statute rests upon the plaintiff. Clark's Code (3 Ed.)
2. The maker of a note being dead, payments endorsed, and the dates thereof, relied upon to repel the bar, must be proved by some other person than the plaintiff, who is incompetent under the Code, sec. 590.
(82) ACTION heard, upon appeal from a justice's court, before Moore, J., at April Term, 1899, of FRANKLIN, brought upon the following note:
F. S. Spruill and W. H. Yarborough, Jr., for plaintiff.
C. M. Cooke Son and A. B. Andrews, Jr., for defendant.
Due and payable on demand to E. A. Gupton, sheriff, twenty-four dollars, for value received.
As witness my hand and seal, this 9 September, 1871.
PHIL'M B. HAWKINS. [Seal.]
Endorsements — Received 11 September, 1872, two dollars of the within. Received 8 September, 1880, four dollars of the within. 11 December, 1889, received six and 50-100, in part of the within. One-quarter bbl. flour, $1.25.
P. B. Hawkins died in January, 1891.
This action commenced 24 November, 1896.
Among other defenses, the statute of limitations was pleaded.
After the note had been read in evidence, the plaintiff, over objection, was allowed to testify: "The endorsements are all in my handwriting, and were made at the dates shown on back of note, except the last endorsement, I did not make that."
To all this defendant objected. Objection overruled, and defendant excepted.
The endorsements on the note, except the last one, were allowed by the court, and read to the jury. Defendant excepted.
Verdict for the plaintiff. Appeal by defendant.
The statute of limitations being pleaded the burden of proving the debt not barred is upon the plaintiff, for clearly a defendant could not prove the date of a payment which is denied. Clark's Code (3 Ed.), sec. 151, and cases cited. The plaintiff relied upon sundry credits endorsed on the bond by himself, but the statute is only suspended by proof of payment, not by the endorsement of credits, which are mere declarations of plaintiff in his own interest. Young v. Alford, 118 N.C. 215. It is necessary for the plaintiff to prove the date of the payments, aliunde the endorsement. Woodhouse v. Simmons, 73 N.C. 30 (which explains Williams v. Alexander, 51 N.C. 137); White v. Beaman, 85 N.C. 3; Grant v. Burgwyn, 84 N.C. 560. It was not competent for the obligee to testify that the payments were made by the obligor at the date of the credits endorsed, as that is a transaction with the deceased obligor, and forbidden by sec. 590. Bunn v. Todd, 107 N.C. 266. To prove when the obligor made them necessarily is to prove that he made them.
The plaintiff relies upon Lockhart v. Bell, 86 N.C. 442, and s. c., 90 N.C. 499, but that merely holds that it is competent for the obligee to show that the payment was made by an agent of the obligor, though the obligor is since deceased. It is competent for the obligor to give in evidence credits endorsed upon a note or bond in the handwriting of a deceased obligee, for this is a declaration against interest, and is the opposite of this case where the obligee seeks to remove the bar of the statute by his own endorsements, which are declarations in (84) his favor.
New trial.
Cited: Ditmore v. Rexford, 165 N.C. 621.