Opinion
(Decided 20 February, 1900.)
Note of Testator — Statute of Limitations — Partial Payments by Testator; by Executor — "Filed" and "Admitted." Under Section 164 of The Code — Judgment Against Executor.
1. A note, kept alive by partial payments up to death of testator, will be still further extended by partial payments made by his execution within time.
2. The term "filed," used in sec. 164, of the Code, signifies that the claim is to be exhibited, for inspection, to the personal representative, for his admission or rejection. It is not required of the creditor to part with the possession of the evidence of his claim.
3. A partial payment by the personal representative, without objection, is an unequivocal act, from which an admission of the justice of the claim may be inferred.
4. A judgment against an executor, fairly obtained without fraud and collusion, is conclusive against the heir or devisee.
ACTION upon a promissory note under seal, tried before Starbuck, J., at Fall Term, 1899, of CAMDEN.
His Honor ruled otherwise, and they excepted. There was verdict (9) for the plaintiff, and judgment accordingly. Appeal by defendant Hughes.
E. F. Aydlett and G. W. Ward for appellants.
Pruden Pruden and Shepherd Shepherd for plaintiff.
D. L. Pritchard executed and delivered his note under seal to the plaintiff 23 June, 1882, and died testate in March, 1886 and the defendant D. T. Pritchard was qualified as his executor. The first payment on the note was endorsed 14 May, 1883. The executor made a payment on the note endorsed 25 May, 1886, and made several successive payments, the last being endorsed 25 June, 1892. Action was begun 26 August, 1898.
M. E. Hughes and M. E. Hughes, Jr., heirs at law of the testator, were allowed to become parties defendant, and file an answer setting up the statute of limitations. The executor filed no answer and the defendants introduced no evidence. The third issue: "Is plaintiff's claim barred by the statute of limitations?" The court then told the jury that if they believed all the evidence they should answer the third issue, "No." Defendant Hughes excepted to the charge and appealed.
The plaintiff retained possession of his note until it was (10) merged in the judgment. These are the material facts.
The contention, which we think is not well founded, is that as the plaintiff did not file his note with the executor, under the Code, sec. 164, the payment by the executor did not intercept the statute, and that the action is barred, as more than ten years elapsed after payment by the testator before the action was commenced.
We must infer that the executor considered and treated the claim as just, by making several payments thereon, and by not denying its correctness. Was it "filed" within the intent of the Code, sec. 164? Notice to the executor for information is the prime purpose of the statute and seems to be all that is necessary for his purpose, until he is ready to make a final settlement. In Woodlief v. Bragg, 108 N.C. 571, the creditor's claim was presented within one year and no objection was made, and the administrator filed a petition to sell land for assets to pay it. Held, that the running of the statute was saved. In Stonestreet v. Frost, 123 N.C. 640, the sheriff presented an execution, issued before the intestate's death, to the administrator and demanded payment, admitted to be correct: Held, to be a "filing" within said sec. 164.
The facts in the present case bring it within the principle of the above cases. It would be unreasonable to require the creditor to actually file or deposit his evidence with the personal representative, who might become an adversary party. The judgment against the personal representative is conclusive against the heir or devisee in the absence of fraud and collusion. Speer v. James, 94 N.C. 417.
Affirmed.
(11)