Opinion
(June Term, 1840.)
1. Where the attesting witness to a bond is dead, its execution may be proved by proof of the witness's handwriting; but if such evidence cannot be had, then proof of the obligor's handwriting is admissible; but before the latter testimony will be received, the party offering the bond for probate must show to the court that he has done all in his power, without effect, to procure evidence of the handwriting of the attesting witness. Hence, where it appeared that the subscribing witness to a bond had been clerk of the county court of a large, populous, and wealthy county, and had been dead only twenty-five years, it was Held, not to be sufficient for admitting testimony of the obligor's handwriting to show, by one witness only, that he did not know the subscribing witness's handwriting, and did not know of any person who did have such knowledge.
2. The presumption of the payment of a bond, raised by a forbearance for twenty years (or for ten years since our act of 1826, 1 Rev. Stat., ch. 65, sec. 13), may be repelled by evidence that the debtor had not the means or the opportunity of paying; and the repelling of the presumption will not be hindered by the fact that the debtor had a reversionary interest in certain slaves, but which did not vest in possession until a short time before the suit was brought, when it did not appear that the creditor knew of the existence of the reversionary interest, and it was evident that it was not, in fact, applied to the payment of the debt.
3. A payment by an administrator of the assets of his intestate to the next of kin, within less than two years after his qualification, and without taking refunding bonds, will not support the plea of fully administered against a nonresident creditor who has brought his suit within three years from the time when the administration was taken.
4. The act of 1715 (1 Rev. Stat., ch. 65, sec. 11) will not operate as a bar to creditors not suing within seven years from the death of the debtor when there is no executor or administrator on the estate of the decedent during that time.
DEBT, upon a penal bond, to which the defendant pleaded non est factum, payment, fully administered generally and specially, and the acts of 1715 and 1789 for the protection of executors and administrators; and upon the trial at GRANVILLE, on the last circuit, the defendant filed the following bill of exceptions:
(67) "Be it remembered that on the trial of the issues joined between the parties in this cause, before the Honorable John M. Dick, presiding judge of the said court, the plaintiff produced a paper-writing dated 19 August, 1811, purporting to be an obligation, and purporting to have been sealed and delivered by the defendant's intestate and one John Vaughn, for the penal sum of $3,120.60 to McKinder White, with a condition underwritten to be void on the payment to the said McKinder White of $1,560.30 on or before 21 August; and it being admitted by the defendant that the mercantile firm of McKinder White consisted of the plaintiff and one John White, who, since 19 August, 1811, and before the bringing of this action, had departed this life, whereby the right of action on all demands which had been due to the said McKinder White had inured to the plaintiff, the said plaintiff produced as a witness one Thomas Vaughn, who deposed that he was well acquainted with Henry J. Burgess, whose name purported to be attached as that of an attesting witness to the said paper-writing; that he resided in Halifax County, in this State, at and before 1811, and was clerk of the county court there for several years, about that period; that he resigned the said office soon after, and died in 1815; that he (the witness) had no knowledge of the handwriting of the said H. J. Burgess, except from having examined, within three months before this trial, the records of the county court of Halifax during the time he was clerk thereof, and which records the witness supposed to have been kept in his handwriting; that the said H. J. Burgess had one brother now surviving him in Halifax, who was not more than 15 years of age at the death of the said H. J. Burgess; and that witness did not know that his said brother had any acquaintance with the handwriting of the said H. J. Burgess; nor did witness know any one who had such acquaintance with his handwriting; and thereupon the plaintiff's counsel, insisting that by this evidence he had sufficiently accounted for not offering proof touching the handwriting of the said supposed subscribing witness, proposed to examine the said Vaughn, the witness, as to the handwriting of the said supposed obligors; which was opposed by the defendant's counsel, but allowed by the (68) judge; and thereupon the defendant excepted. The said witness then deposed that he was well acquainted with the handwriting of the defendant's intestate, and of the said John Vaughn, who were his brothers, having often seen them write; and that he fully believed, from his said knowledge, that the signatures attached to the said paper-writing were in the true and genuine handwriting of the defendant's intestate and the said John Vaughn respectively; and thereupon the plaintiff's counsel prayed the said judge to admit and allow the said evidence as good and sufficient evidence for the plaintiff on the said issue joined on the first plea of the defendant, and to instruct the jury that the said evidence, if believed by them, was full and sufficient proof in law that the said paper-writing was the deed of the defendant's intestate; and the judge admitted the said evidence, and gave the said instructions as prayed; and thereupon the defendant excepted. The plaintiff's counsel thereupon, in order to repel the presumption of payment arising from the length of time, offered to prove, by the said Thomas Vaughn, that at the date of the said obligation both the defendant's intestate and the said John Vaughn were entirely insolvent; that the said John was now living in Georgia, insolvent, having been so ever since the date of the said obligation; that the intestate, being so insolvent, removed to Tennessee in 1811, and there commenced the practice of medicine; and after remaining there two or three years, removed thence to the State of Mississippi, and continued there until the time of his death, which was admitted by both parties to have been in 1819; that he married in Mississippi, and left a daughter at his death; and that, from time to time after his removal until his death, the witness, who was his brother, received letters from him, complaining that he continued in low circumstances; that for some years, being affected with a disease which at length caused his death, he was thereby hindered in his practice, and that, in a letter shortly before his death, he commended his daughter to the kind offices of this witness, as he was not in a situation himself to provide for her; to which the defendant's counsel objected, but the objection was overruled by the judge, and the evidence offered was (69) received, and the defendant's counsel excepted. And thereupon the said witness, having been examined, and having given evidence in manner and to the effect aforesaid, although it was admitted by the plaintiff's counsel that in 1816 an uncle of the said intestate had died and by his will had bequeathed to the said intestate several negro slaves in remainder, after the death of the widow of the said testator, who departed this life in 1833, and the slaves came to the hands of the defendant, as his administrator, in 1835, being then of the value of the plaintiff's demand; yet the plaintiff's counsel insisted that, upon this evidence, it should be left to the jury whether they were satisfied, upon the consideration thereof, that both the obligors were unable to satisfy the plaintiff's demand, from the execution of the bond, and continually afterwards, and if they were so satisfied, to find the presumption of payment repelled; and the judge accordingly left the evidence to the jury, and instructed them that if they were satisfied thereby of the continued inability to pay of both the obligors, from and after the execution of the said obligation, they should find against the defendant on his plea of payment; and to this decision and instruction the defendant excepted. And thereupon the defendant's counsel, in support of the defendant's plea of fully administered, admitting that he administered in 1835, and then received nine negro slaves, assets of his intestate, of value sufficient to satisfy the plaintiff's demand, proved that immediately thereafter he advertised for creditors to exhibit their demands as required by law; that at the expiration of one year from his administration he, having no notice of the plaintiff's demand, delivered over all the said assets to the next of kin of his said intestate; and although he had taken no refunding bond from the said next of kin, yet he insisted that, under the circumstances of the case, the plaintiff, as well as his deceased partner, having been always residents and citizens of Virginia (as was admitted by both parties), yet if, in paying over the assets to the next of kin, he had acted in perfect good faith, supposing, after the great length of time, that no creditors had any demands, having notice of the plaintiff's demand then nor until more than two years after his administration — the jury were at liberty to find that the defendant had fully administered, and prayed the judge so to instruct (70) the jury, which instruction the judge refused to give; but, on the contrary, instructed the jury that inasmuch as the defendant had paid over the assets without the two years delay after his administration required by the statute, and without taking a refunding bond, he had not shown a full administration; and that therefore the jury ought to find on the said plea for the plaintiff. And the defendant's counsel, admitting that no administration of the estate of the intestate had ever been granted before November, 1835, within three years of the commencement of this suit, prayed the judge to instruct the jury to find for the defendant on his fourth plea of the seven years bar by the act of 1715, under the facts above stated, which instruction the judge declining to give, the defendant excepted."
The jury returned a verdict for the plaintiff on all the issues, upon which he had judgment, and the defendant appealed.
Badger for defendant. (71)
Battle for plaintiff.
The Court is of opinion that the first of the exceptions taken by the defendant in this case is well founded. Rules of evidence, once settled, become rules of law, and cannot be departed from upon theoretic notions of propriety or the suggestions of expediency. Among these rules, the following, as we believe, are well settled in the country of our ancestors, and we are confident have been regarded as established in this State for the last half century: When the execution of an instrument, attested by one or more subscribing witnesses, is required to be proved, the party propounding it must call one at least of the subscribing witnesses to prove it, or show that proof, by means of an attesting witness, is not in his power. When this is shown, the next evidence in the order of proof is evidence of the handwriting of the subscribing witnesses, or one of them. But if this also be unattainable, then the party producing the instrument is allowed to give evidence of the handwriting of the party by whom it purports to be executed. 1 Starkie Ev., 320 to 330; Jones v. Brinkley, 2 N.C. 20; Jones v. Blount, ib., 238. (72) Whenever proof of an inferior grade is brought forward, it shall not be received until the court is satisfied that proof, superior in order, is not within the power of the party. Now, it is clearly impossible to lay down a precise rule of law as to what circumstances must be shown to convince the court that the party tendering inferior evidence has done his best to procure the superior evidence. If, therefore, in this case, the judge below had stated on the record, as a conclusion of fact, which he drew from the testimony submitted to him, that it was not in the power of the plaintiff to procure evidence of the handwriting of the attesting witness, or if the circumstances which he has caused to be there stated were such as would warrant a reasonable inference that this evidence was unattainable, we might well hesitate in reversing this judgment. But the case neither sets forth such a conclusion as having been drawn, nor will it authorize us to presume that it was in fact drawn by his Honor. The attesting witness, when alive, was the clerk of the county court of a large, populous, and wealthy county. He had been dead but twenty-five years before the trial. Not an effort was shown to have been made in the county of the witness's residence to procure proof of his handwriting. So far from there being room to presume that witnesses as to the character of his handwriting could not be had, a doubt could scarcely be entertained but that very many such witnesses were to be found, if reasonable exertions were but used to discover them.
The second exception, in the opinion of the Court, must be overruled. The presumption against a bond, raised from the lapse of twenty years, without a demand by the obligee or acknowledgment of the obligor, is, in one sense, a presumption of law. The law attributes to such lapse of time a technical operation; so that it is the duty of the court, if no opposing testimony be offered, to advise the jury to find the fact of payment. But the inference to be raised is an inference of fact, liable to be attacked, repelled, or confirmed by other testimony. And it is the duty of the triers of the fact, allowing to this technical presumption its prima facie force, to find the fact as it may appear upon the proofs. Now, it seems to us that upon whatever ground this presumption rests, whether upon the probability of the fact of payment thence (73) arising, or on a principle of policy that would shield men from the oppression of claims long negligently forborne, testimony of the kind and to the effect which was offered in this case was pertinent and in point, tending directly to encounter the alleged probability, and to account for the seeming negligence, and therefore fit to be submitted to the jury, and proper to influence their finding. We have heretofore declared our concurrence in the opinion expressed by Lord Eldon in Flandong v. Winter, 19 Ves., Jr., 199, "that the presumption raised by a forbearance for twenty years may be repelled by evidence that the debtor had not the means or opportunity of paying." Matthews v. Smith, 19 N.C. 287. Upon further reflection, we entertain the doctrine still; and also, that if such evidence does satisfy the jury that in truth payment has not been made, it is their duty so to find upon the fact in issue. Nor do we think the circumstance relied on by the defendant is sufficient to withdraw the present case from the operation of this doctrine. The interest in remainder which the defendant's intestate had in the negroes bequeathed by his uncle's will was, indeed, one which during the life of his uncle's widow might have been applied to the payment of the debt now in suit. But all supposition that it was so applied is repelled by the fact that all the negroes, upon the death of the tenant for life, came to the possession of the defendant. And so, if it could be brought home to the creditor that he knew of this interest in remainder, an inference of negligence, in forbearing for so many years from any effort to subject it to his demand, might be raised against him; but, as the intestate himself forbore wholly, notwithstanding his necessities, from making any use of this interest, it might be that he was ignorant thereof, and still more probable that these creditors knew not of it. How this might be was a circumstance fit to be considered by the jury.
We are clearly of opinion that the third exception is unfounded. The delivery of the assets of the intestate, by the defendant, to the next of kin, before the expiration of two years from his qualification, and without taking refunding bonds, is not a legal administration of the assets against a creditor. Undoubtedly, there are some few — they (74) are very few — requisitions imposed by our acts of Assembly upon the executors and administrators of deceased persons which cannot be performed by, and are manifestly inapplicable to, those whose testators or intestates did not reside amongst us. By a legitimate construction of the acts so far, and so far only, as these requisitions are inpracticable and inapplicable, such executors and administrators are excused therefrom. But, with this exception, all who here take probate of wills, or obtain letters of administration of the estate of deceased persons, are bound to observe the laws here in force for the government of executors and administrators.
Upon the last exception we have felt much perplexity. After every effort, we find it impossible to reconcile to each other the decisions which have been made upon the act of 1715, 1 Rev. Stat., ch. 65, sec. 11. The difficulty of admitting any equitable exposition of the act without a violation of its language has at times caused a strict adherence to its terms. At other times, the shocking injustice resulting from a literal interpretation has obtained for it an equitable construction, almost in defiance of its words. Under these circumstances, we feel it our duty to consider the latest adjudications as fixing the true principles of the act. Jones v. Brodie, 7 N.C. 594, and Godley v. Taylor, 14 N.C. 178, have established that the injunction on creditors to make claim within seven years after the death of the debtor, under the penalty of being utterly barred of any recovery against his estate, does not apply when there is no person in being authorized by law to make the claim, or where the claim itself is in a state not then to be prosecuted, and these decisions are avowedly made upon the ground that, until there be such a person to make claim, and such a claim as can be prosecuted, there is no cause of action; and the bar of the act of 1715 does not begin to run. Unless this ground be abandoned, it must also be held that unless there be a person against whom claim may rightfully be made, the bar of the statute does not attach. It is indispensable to the prosecution of a claim that there should be a person in being against whom it may of right be demanded, as that there should be a rightful claimant in existence (75) to bring it forward, or that the claim be of such a nature as that its performance may be demanded. The moment it is established that this act is in the nature of an act of limitation, the bar of which does not begin to run until there is a cause of action, that moment it follows that the want of a representative of the debtor, as well as of a representative of the creditor, takes the case out of the bar of the statute. Cause of action is the right to prosecute an action with effect; and, legally, a cause of action does not exist until there be a person in existence capable of suing, and also a person against whom the action may be brought. See Douglass v. Forrest, 4 Bing., 686; 15 E. C. L., 113; Murray v. East India Co., 5 Barn. and Ald., 204; 7 E. C. L., 66; Webster v. Webster, 10 Ves., Jr., 93.
For errors assigned by the defendant in the first exception,
PER CURIAM. Venire de novo.
Cited: Wood v. Dean, post, 231; S. v. Holcombe, 24 N.C. 216; McKinder v. Littlejohn, 26 N.C. 202; Carrier v. Hampton, 33 N.C. 311; Warlick v. Barnett, 46 N.C. 541; Walker v. Wright, 47 N.C. 157; Pearsall v. Houston, 48 N.C. 347; Ballard v. Ballard, 75 N.C. 192; Rogers v. Grant, 88 N.C. 443; Howell v. Ray, 92 N.C. 512; Angier v. Howard, 94 N.C. 29; Long v. Clegg, ib., 766; Daniel v. Grizzard, 117 N.C. 111; Bright v. Marcom, 121 N.C. 87; Copeland v. Collins, 122 N.C. 623, 627.
(76)