Belo v. . Spach

85 N.C. 122

Opinion

Ashe, J*

The only question presented fo-r our determination by this appeal is, whether the payment on a bond within ten years after it falls due by the assignee in bankruptcy of one of the obligors, will repel the presumption arising from- the lapse of time.

The bond was due on the 29th of January, 1860, and Tice went into bankruptcy, and among the debts enumerated in his schedule was the said bond given by him and the other «obligors to Boner.

There were two dividends paid by the assignee on the bond to the plaintiff, the' holder of the bond, the one on the 24th of March, 1870, and the other 22d of May, 1872. It has been held in this state that payments made by one of several obligors to a bond in the absence of the other, before the expiration of the time necessary to create the presumption of payment, will prevent such presumption from arising, as •well in r-espeet of the absent obligor, as of him that made the payment; and it is the case as to the joint obligors., when there are several who are sureties, as well as the principal who makes the payment. Lowe v. Sowell, 3 Jones, 67; McKeethan v. Atkinson 1 Jones, 421.

And in Hamlin v. Hamlin, 3 Jones Eq,. 191, it was decided that the payment of a bond within ten years by an assignee in bankruptcy out of the funds and with the assent of the obligor, repels the presumption of payment arising from the length of time,

No error, ' Affirmed,