Opinion
(Spring Riding, 1805.)
1. Twenty years raises a presumption of the payment of a bond; but if any circumstances can be offered to account for the delay, they may hinder the presumption.
2. The act of 1715 (see 1 Rev. Stat., ch. 65, sec. 11) barring the claims of creditors against a decedent's estate after seven years, having made no exception whatever of any description of persons, the court can allow of none.
3. If the first seven years after the death of the debtor cannot for any cause be computed, the next seven may.
DEBT upon a bond given on 28 September, 1772, and payable on demand. Defendant, who was the heir of the obligor, and was sued in that character, pleaded payment, that there were personal assets sufficient in the hands of the administrator and next of kin, and the act of 1715, concerning the proving of wills and granting letters of administration, etc. It was proved that Peterson Thorpe, the obligor and ancestor of defendant, died in May, 1777, and that Timothy Thorpe administered, and had assets more than sufficient to pay all his debts; that Day Ridley, the obligee, died in June, 1777, leaving the said Timothy Thorpe, his executor, who qualified as executor the same month; that the said Timothy died in 1787, and an administrator was appointed for his estate; administration de bonis non of Day Ridley was granted in 1790, and a like administration for the estate unadministered of the said Peterson was granted in 1804.
Where a bond has not been sued upon for the (344) space of twenty years, nor interest paid upon it in that time, and if the plaintiff cannot account for not suing in the time, a jury are at liberty to presume the bond to have been paid. Defendants rely upon length of time, as such evidence of payment in the present case. Plaintiff says he has accounted for not suing from 1777 to 1787, by proving that one and the same person, during all that time, was the representative of the obligee and obligor, and so could not sue himself. Defendants, on the other hand, say the presumption is much strengthened by this circumstance, and, indeed, they say that it is of itself tantamount in law to payment. They rely upon the case of Dorchester v. Webb, Cro. C., 372, 373. The amount of that case is that the plaintiff was the executor of the obligee, and also the executor of the obligor; but at the death of the obligor, or after, she had not any of the effects of the obligor wherewith she could pay the debt; and because she had no such assets, the Court adjudged she might maintain her action against the coobligor of her testator; for, said the Court, although she be executor to John Dorchester, the other obligor, yet when she hath fully administered all the estate of the said John Dorchester, before she be made executor to Ann Rowe (the obligee), she hath in a manner discharged herself of being executrix to John Dorchester, and hath not anything of his estate. The case allows the circumstance of being representative of both, and having assets sufficient of the obligor to afford a very strong presumption of payment; and the jury may take into consideration a calculation of the principal and interest due upon the bond, to be endorsed thereon, as made 21 December, 1779; also the circumstance of the administrator of the obligor permitting the widow to remove from Virginia to North Carolina, with eighteen or twenty negroes, in 1780. As to the act of 1715, plaintiff's counsel insist it cannot run on from 1777 to the end of the war, nor after 1787 till 1790, because in the intermediate time there was no person who could have sued upon the bond; and that if the act does not take effect at the end of the first seven years next after the death of the obligor, it never can take effect at all. My answer to these remarks is this: The act of 1715, requiring creditors of any person deceased to make their claim within seven years after the death of such debtor, otherwise such creditor shall be forever barred, makes no saving whatsoever for any person under any circumstances; and my Lord Coke says where the Legislature have made no exceptions the judges can make none, and that infants and femes covert would have been barred by the common act of limitations, had they not been excepted therein. The Court, indeed, goes so far as to say that a case like one of those excepted by the act shall be within its equity and government, but (345) it cannot make an exception of any kind where the act itself has not made any exception. Then, admitting that the act of 1783 has suspended the operation of all acts of limitation during the war, this act will remain afterwards; and if seven years elapse without claiming the debt, though not the next seven years next after the death of the debtor, the creditor will be barred, for it cannot be law that the creditor is left without limitation if for some cause the first seven years cannot be computed.
Verdict for defendant, and judgment.
NOTE. — See, on the first point, Quince v. Ross, ante, 180, and the cases referred to in the note thereto.
On the other points, see McLellan v. Hill, 1 N.C. 479; Jones v. Brodie, 7 N.C. 594; Rayner v. Watford, 13 N.C. 338; Godley v. Taylor, 14 N.C. 178; McKinder v. Littlejohn, 23 N.C. 66; Lee v. Gause, 24 N.C. 440.
Cited: Rogers v. Grant, 88 N.C. 443; Tucker v. Baker, 94 N.C. 165; Long v. Clegg, ib., 767.