The opinion of the Court was delivered by
Mr. Justice McIver.Sallie M. Hall departed this life in the latter part of 1857, having first duly made and executed her last will and testament, of which Dr. E. Gr. Simpson and Dr. William Phillips were the, duly qualified executors. The testatrix left a very considerable estate, both real and personal, the great bulk of which, including the tract of land which is the subject matter of the present controversy, she gave to her grandson, the defendant, John B. Campbell, to be kept by the executors under their control until he arrived at the age of twenty-one years, when it was to be turned over to him absolutely. The testatrix, at the time of her death, owed but few debts, the principal one being a note under seal to A. R. Simpson for $1,000, payable one day after its date, and bearing date February 17, 1857. Upon this note a credit,, dated April 6, 1858, for $70, is endorsed, as received from E. Gr. Simpson, executor.
*305In October, 1862, the defendant, John B. Campbell, the principal legatee and devisee under the will, having attained the age of twenty-one yeai’s, the executors turned over to him the whole estate, although all the specific legacies and debts were not then paid, since which time, both of the executors testify, they have in no way interfered with the estate of the testatrix, Sallie M. Hall. Sometime after this, though at what particular date does not appear, each of the executors made separate returns in' the ordinary’s office of their receipts and expenditures as such, which was probably about September 16, 1863, as the interest seems to be calculated up to that day. A suit having been commenced by
A. R. Simpson on the note above mentioned against the executors of Sallie M. Hall and John B. Campbell, the defendant, John B. Campbell, testifies “that he went to the office of Simpson & 'Simpson in June, 1869, and took up said note with money belonging to plaintiff, paying $1.000; that he took the note home and gave it to plaintiff, saying, ‘This note is your property;’ that it had been property of plaintiff from that time to present.” The only other witness who testified as to this matter said, “That she was with plaintiff when Campbell returned from Laurens, the day that he took up the A. R. Simpson note; that he handed the note to plaintiff, saying, ‘This note belongs to you ; Colonel Simpson says that you had better take care of this note, it may be worth something to you some day.’ ” .
On February 19, 1876, the defendant, John B. Campbell, executed a mortgage on the land in question to his co-defendants, Sloan & Seignious, and the plaintiff, who is the wife of said John B. Campbell, indorsed upon said mortgage a relinquishment of her dower in the said land, as against the mortgage debt. In 1877 the A. R. Simpson note was placed by John B. Campbell in the hands of attorneys for collection, although no action was commenced thereori until the early part of 1881, when suit was instituted against the executors of Mrs, Hall, and judgment by default obtained against them in February, 1881. On March 18, 1882, judgment of foreclosure and sale was 'obtained by Sloan & Seignious against John B. Campbell, and the object of the present action is to subject the tract of land in the possession of John B. Campbell, devised to him by the will of Mrs. Hall, *306to the payment of her note to A. R. Simpson, of which the plaintiff claims to be the owner and holder, and also to enjoin the sale of said land under the judgment of foreclosure by Sloan & Seignious.
Although one of the questions made in the case is, whether the note which constitutes the foundation of the plaintiff’s claim shall be presumed to be paid by lapse of time, yet, singular to say, it nowhere distinctly appears precisely when the present action was commenced. The date is stated in the Circuit decree, but it is manifest that it is incorrectly stated (probably through a misprint), and as corrected by the admission of counsel, it seems to be inconsistent with a succeeding statement in the decree. For, as corrected by counsel, it is fixed at August 31, 1881, but as the decree states that one of the objects of the action was to enjoin the sale of the land under the judgment of foreclosure, which was not obtained until March 18, 1882, it must have been commenced after that date, and accordingly we find that in the statement of facts prefixed to the appellant’s “Points and Authorities,” the date of the commencement of the present action is fixed at June 5, 1883. Fortunately, however, it happens in the present case, that this confusion as to dates will work no injury to the parties, for whether the action was commenced in 1881 or 1883 will make no practical difference.
The Circuit judge rendered a decree dismissing the complaint and dissolving the temporary injunction previously granted upon the several grounds considered therein, and from this judgment the plaintiff appeals upon various grounds set out in the record.
It is very manifest that the fundamental inquiry in this case is whether the plaintiff ever became the owner of the A. R. Simpson note, for it is quite clear that unless she did she has no cause of action, and the other questions discussed cannot properly arise. The Circuit judge seems to have reached the conclusion that she never bought the note, but simply furnished the money with which it was paid as a gratuity to her husband and to relieve him from a liability then pressing upon him ; and in this conclusion we fully concur. It is not pretended’ that the note was ever assigned to her, or that there was any agreement or undérstanding that it should be; and although a formal assignment *307might not be necessary, yet the fact that none was taken and none was asked for, is a circumstance of no little weight in considering what was the true nature of the transaction. The testimony as to what occurred at the time the note was obtained, all of which is set out above, is very far from indicating that the mission of John B. Campbell was.to buy up the note for his wife, to be held by her as a debt against him, but point rather to the conclusion which we have adopted. The expression “took up” the note, used by both of the witnesses who testified as to this matter, was much more appropriate to the payment rather than the purchase of the note.
Then, too, the subsequent conduct of the plaintiff points to the same conclusion. Although the note ■ was then in suit and costs had been incurred, yet instead of allowing the note to go into judgment, and obtaining a lien upon her husband’s land, which she could enforce or not as occasion might require, the suit is dropped and the note goes into her possession, where it remains unheard of for about eight years, until after a creditor of her husband has taken a lien upon the land, with her knowledge and acquiescence, as evidenced by .her relinquishment of dower, when the note is resurrected and placed in the hands of an attorney for collection, and even then, for some unexplained reason, it was allowed to slumber for four years longer before any action was commenced upon it. All the circumstances point to the conclusion adopted by the Circuit judge, that this effort on the part of the plaintiff to set up this note as a debt due to her, in derogation of the rights of her husband’s creditors, is an afterthought which cannot avail her.
But even if we were able to reach the conclusion that the plaintiff 'did in fact purchase the note in question, we think it clear that her right of action thereon is barred by lapse of time. Twenty years from the date of the payment indorsed on the note expired in 1878, and we see nothing in the case to rebut the presumption arising from such lapse of time. The judgment obtained against the executors of Mrs. Hall certainly cannot have such effect, for the action in which such judgment was obtained was not commenced until nearly three years after the twenty years had run out. Bird v. House, Speer Eq., 250; Gilliland *308& Howell v. Caldwell, 1 S. C., 198; Wilson v. Kelly, 19 S. C., 160.
Again, we think that the laches of the plaintiff and of her alleged assignor, of which -she must bear the consequences, is sufficient to bar her action. Mobley v. Cureton, 2 S. C., 140.
So, too, we agree with the Circuit judge that the plaintiff, by joining with, her husband in the mortgage is estopped from setting up this stale claim against the mortgagees.
The judgment of this court is that the judgment of the Circuit Court be affirmed.