Gupton v. . Hawkins

35 S.E. 229, 126 N.C. 81, 1900 N.C. LEXIS 190

• Court: Supreme Court of North Carolina
• Decided: February 27, 1900
• Status: Published

Opinion

Clark, J.

Tbe 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 (3d 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 bis own endorsements, which are declarations in bis favor.

New trial.