Little v. . Duncan

The facts in this case are the same as those stated in the plaintiff's appeal.

Among other defences, the defendant relied upon the statute of limitations (Rev. Code, ch. 65, § 11), and it was at the trial found as a fact, that more than seven years had elapsed next after the death of the intestate of defendant before the bringing of this action. The defendant thereupon moved for judgment that he go without day.

The court properly denied this motion, because the statute was not a bar, at all events; if there were assets in the hands of the defendant, this plea would not be good and avail him, unless he should, in that case, aver and prove that he had paid such assets to the persons entitled to the same, and taken from them proper refunding bonds for the benefit of creditors; or had paid the same to the trustees of the University, as required by law. (Rev. Code, ch. 46, §§ 24, 27). Bailey v. Shannonhouse, 1 Dev. Eq., 416; Reeves v. Bell, 2 Jones, 254; Cooper v. Cherry, 8 Jones, 323; McKeithan v. McGill, 83 N.C. 517; Cox v. Cox, 84 N.C. 138.

It does not appear that the defendant had assets, and it has been held in McKeithan v. McGill, supra, that if the administrator had no assets, he need not and could not make such averment and proof. But in this case it does not appear that the defendant did not have assets; he pleaded "fully administered and no assets," and the issue presented by this ground of defence remains undetermined. The plaintiff is entitled to have it tried. If it turns out that defendant had no assets, then his plea of the statute of limitations will avail him, and he will then be entitled to the judgment he prayed for; if, however, it shall be ascertained *Page 420 that he had assets, then it will not, and the plaintiff will be entitled to have judgment for his debt, and the assets applied to his judgment accordingly as he may be entitled.

Where the administrator has assets and he relies upon the statute of limitations (Rev. Code, ch. 65, § 11), such plea must be supported by the averment and proof to sustain it, made by the administrator, that he has paid the assets to those entitled to have them, and taken refunding bonds, or, that he has paid the same to the trustees of the University, accordingly as the statute requires, to make it effectual. Whatever contrariety of opinion and conflicting judicial decisions may have prevailed in the past in respect to the statute of limitations mentioned and the kindred statute, Rev. Code, ch. 65, §§ 12, 13, 14, the authorities cited supra settle the construction of the one under consideration, as here stated.

As this case now stands, whether the plaintiff can recover at all or not, depends upon whether the defendant has or has not assets; if he has, then the plaintiff, without regard to the amount or how the same may be applied, is entitled to judgment; if he has not, then the statute is a complete and effectual bar, and the defendant will be entitled to judgment. So that, the court ought to have deferred giving judgment for the debt, or judgment at all, until the question of assets shall be settled.

The order of the court, denying the motion of the defendant, from which he appealed, was a proper one, and the same must be affirmed. There is no error; judgment affirmed. Let this be certified.

No error. Affirmed.