Battle v. . Battle

21 S.E. 177, 116 N.C. 161

• Court: Supreme Court of North Carolina
• Decided: February 5, 1895
• Status: Published

Opinion

ClakK, J.:

The Code, Section 172, requiring an acknowledgment or new promise to be in writing left the effect of a partial payment in removing the bar of the statute of limitations as it was before the Code of Civil Procedure. Bank v. Harris, 96 N. C., 118. The effect of partial pay ment in stopping the running of the statute is not by virtue of any statutory provision. It was not in the statute of James I, but was an exception allowed by the Courts, and its application depends upon the reasoning in such decisions. The Act of 9 Geo. TV, 14, in a similar way to our statute, merely recognizes the exception as existing. Partial payment is allowed this effect only when it is made under such circumstances as will warrant the clear inference that the debtor recognizes the debt as then existing and his willingness, or at least his obligation, to pay the balance. Hewlett v. Schenck, 82 N. C., 234; Pickett v. King, 34 Barb., 193; Richardson v. Thomas, 13 Gray, 381; 1 Wood on Limitations, Sec. 99.

In the present case there was no payment by the debtor on the bond within ten years before action brought. The assignment conferred no power on the trustee, as agent of the debtor, to do any act to waive the statute or express a willingness or intention of the debtor to pay the debt after it should otherwise become barred. His agency was strictly limited to the duties marked out in the instrument, of paying out the assets Li the manner stated, and bound the assignor by no implied agreement to pay more or to waive the statute.. Chancellor Kent in Roosefelt v. Marks, 6 John, Ch. 266. Indeed, the assignment indicates an inability to pay anything more on the debts secured therein, and it would be a contradiction of its plain meaning to hold that the pro rata distribution of the assets thereunder by the assignee was an authorized expression of a willingness and intention to pay the balance and therefore a waiver of the statute. It is settled that a payment by assignees in bankruptcy and for the benefit of creditors does not take the case out of the statute of limitations. 13 Am. and Eng. Enc., 760; Burrill on Assignment (6th Ed.) Sec. 399, and cases there cited; Belo v. Spach, 85 N. C., 122, held that a payment by the assignee repelled the statute of presumptions. That might well be, for to repeal the presumption it is only necessary to show that the debt was still existing and unpaid, and the payment of the assignee in bankruptcy is some evidence of that fact, but the statute of limitations is an absolute bar. To remove it, there is necessary some act of the debtor or by his authority, such as a written promise or a payment under such circumstances as implies an obligation to pay the balance.

Error.