Opinion
(February Term, 1887.)
Statute of Limitation — Principal and Surety.
1. Three years is a bar to an action against a surety although the note be under seal.
2. Where delay in bringing suit is caused by the request of the defendant, and his promise to pay the debt and not to avail himself of the plea of the statute, he will not be allowed to plead the statute, as it would be against equity and good conscience; but in such case the creditor must bring his action within three years after such promise and request for delay.
3. By SMITH, C. J. In such case the request of the defendant for delay and his promise not to avail himself of the statute must be in writing, as provided by section 172 of The Code, except in cases where it would enable the defendant to perpetrate a fraud.
4. By MERRIMON, J. The right of the creditor to have the debtor restrained from setting up the statute where suit has been delayed at the debtor's instance, is not affected by section 172 of The Code, and need not be in writing.
5. Also by MERRIMON, J. The six-year, and not the three-year statute governs in such cases.
CIVIL ACTION, tried before Shepherd, J., at Fall Term, 1886, (149) of WILSON Superior Court.
H. F. Murray for plaintiff.
E. R. Stamps for defendant.
( Knight v. Braswell, 70 N.C. 709; Welfare v. Thompson, 83 N.C. 276; Capell v. Long, 84 N.C. 19; Haymore v. Commissioners, 85 N.C. 268; Lyon v. Lyon, 8 Ired. Eq., 201; Barcroft v. Roberts, 91 N.C. 363; Daniel v. Commissioners, 74 N.C. 500; cited and approved.)
The plaintiff alleged that one Martha Egerton and the defendant executed to him a note of which the following is a copy:
"With interest from date, at 8 per cent, we, or either of us, promise to pay Turner Joyner the sum of two hundred and thirteen dollars and twenty-five cents, for value received. 28 October, 1874.
(Signed) MARTHA EGERTON. [Seal.] (Signed) WILLIAM MASSEY. [Seal.]"
And that no part of said note had been paid.
The defendant's answer admitted the execution of the note, but insisted that he had signed it as surety, and relied upon the statute of limitation.
The plaintiff replied, admitting that the defendant had signed the note as surety, but alleging that action had been delayed by the plaintiff at the special request of the defendant, for his accommodation, and upon his express promise to pay the same. The summons was issued 16 August, 1883.
Issues were submitted to the jury, who found: (1) That suit upon the bond was delayed by the plaintiff at the special request of the defendant for his accommodation, and upon his express promise to pay the same; and (2) That the request and promise were made in May, 1877.
Upon the verdict, the defendant moved for judgment, upon the ground that more than three years had expired after May, 1877, and after the note became due, before this action was commenced. (150) This was refused and judgment rendered for the plaintiff, and the defendant appealed.
It is admitted by the plaintiff that the defendant signed the note as surety. It is well settled by statute and by decision, that three years is a bar to an action against a surety to a note, although under seal. Knight v. Braswell, 70 N.C. 709; Welfare v. Thompson, 83 N.C. 276; Capell v. Long, 84 N.C. 19.
The only question for our consideration is, did the defendant's request for delay, and his promise to pay, remove the bar of statute? If the action had been brought within three years after this request and promise, the statute would not equitably have barred; though in Shapley v. Abbott, 42 N.Y., 443, it was held in a case like this, that a verbal promise not to plead the statute was not sufficient to avoid the operation of the statute.
In Haymore v. Commissioners of Yadkin, 85 N.C. 268, it was said that a Court of Equity would restrain a party from pleading the statute of limitation, who had agreed not to take advantage of the delay in bringing the action, thereby contributing to such delay; and the case of Lyon v. Lyon, 8 Ired. Eq., 201, is relied on. In that case, Eleanor Lyon, the plaintiff, who was the widow of Robert Lyon, deceased, the intestate of the defendant administrator, had lost her legal right to her year's support by a failure to petition therefore at the term of the court in which administration was granted, as was then required, and she pleaded her equity on the alleged agreement of the defendant, the administrator and only child of the intestate, that she need not apply for her year's support at the first term of the court, but might do so (151) at a succeeding term, by which agreement she had lost her legal right to a year's support. The defendant denied this agreement, and sought to diminish the distributive share of the widow (who, together with himself, were the sole distributees), by charging her with sums which he had advanced and paid to her by mistake, as he alleged on account of her year's support. She was not allowed her year's support, nor was the defendant allowed credit for the advancements made to her on account of it. Ruffin, C. J., said: "There is no equity between them, for if the defendant insisted that she had lost her right by not asserting it in proper time, she might urge, that to the extent of the advancements by him to her, he had waived the objection given him by the law, and more especially as he had deferred his objection until she could in no way proceed at law."
In Barcroft v. Roberts, 91 N.C. 363, it was held that the bar of the statute of limitation would not be allowed, when the delay which would otherwise give operation to the statute, "has been induced by the request of the defendants, expressing or implying their engagement not to plead it." In that case, the defendants had made payments, extending down to 26 August, 1875, from which time the statute would have run, and the action was brought 21 October, 1878. It was found as a fact, that the bringing of the action was delayed because of the repeated promises of the defendant and his attorney, that the statute of limitation would not be relied on. It does not appear when these "repeated promises" were made, but from the date given, it may be inferred with certainty that they were within three years preceding the bringing of the action.
So in the case of Daniel v. Commissioners of Edgecombe, 74 N.C. 500, it was held to be against equity and good conscience, for defendants to rely upon the plea of the statute, when it had been agreed by them that the plaintiff's claim should abide the result of a trial of another suit pending against them upon a claim of similar character. Rodman, J., said: "Deducting the time of permitted delay, the (152) plaintiff's claim is not barred."
Conceding that these authorities, relied on by plaintiff's counsel, sustain fully the position that when the delay is induced by the request of the defendant and his promise to pay without relying upon the statute of limitation, the court will not allow the statute to bar, because it would be against equity and good conscience, we think the action should be brought within a reasonable time, and that equity should follow the law and give no greater effect to such promise than to a new promise made in writing, or to an original promise supported by a good consideration, or to a payment made on a note, which the statute fixes at three years. It does not destroy the defendant's relation as surety, and if the action is not brought within three years after such request for delay, and promise not to rely on the statute, it should be barred in equity as well as at law.
In the cases relied on by the plaintiff, the actions were brought within three years after the promises inducing the delay. In the case of Burton v. Stevens, 58 American Decisions, 153, cited by counsel for plaintiff, there was an endorsement in writing on the back of the notes, to the effect that the maker would "not take any advantage of the statute of limitation on the within two notes." This was held, very properly, to take the case out of the statute, but the action was commenced within the statutory limit, after the endorsement was made; and this case is not an authority against the defendant.
This view will give full effect to the equitable doctrine which will not allow a defendant to take undue advantage of delay induced by his own promises on the one side, and is in harmony with the statute on the other, which fixes the limitation at three years. In this action it was found that the request and promise were made in May, 1877, and the action was brought 16 August; 1883.
There is error. Judgment reversed. (153)