Lilly v. West
| Citation | 1 S.E. 834,97 N.C. 276 |
| Parties | LILLY v. WEST, Ex'r. |
| Decision Date | 28 March 1887 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, Sampson county.
Haywood & Haywood and H. E. Faison, for plaintiff.
J. L Stewart, for defendant.
The partnership firm of H. & E. Lilly, in an action instituted upon a promissory note executed by R. C. Lee & Co. and W. T Beaman, for $1,452.99, dated March 27, 1861, and due at two months, recovered judgment, which was docketed on November 1 1869, against the defendants R. C. Lee, W. T. Beaman, Noel Jones and Blackman Lee, the members constituting R. C. Lee & Co., and the said W. T. Beaman personally. Blackman Lee died on August 30, 1877, and the defendants in this action became, by appointment under his will, his executors, and qualified as such. On October 31, 1879, the plaintiffs caused notice to issue to William Daughtrey, administrator of said R. C. Lee, who had meanwhile died intestate, W. T. Beaman, Noel Jones, and the said John E. West and J. Williams, executors of Blackman Lee, to show cause before the clerk why leave to issue execution in enforcement of their judgment should not be given. The motion for leave was heard on December 29, 1879, the executors making no resistance thereto, and the clerk allowed execution to issue within three years thereafter against all except the said Noel Jones, who pleaded his discharge in bankruptcy, and as to him it was refused. On May 12, 1881, the present suit was commenced by the plaintiffs (during the progress of which the name of Henry Lilly as a co-plaintiff was stricken out) against the defendants, said executors, and the devisees and heirs at law of the testator, Blackman Lee, to whom it is alleged real estate has come subject to the lien of the judgment, and to enforce the same according to Code Civil Proc. tit. 14, c. 2, §§ 318-324, [1] then in force, but not brought forward in the Code.
A series of answers were put in, in all of which, among other defenses, (specially relied on by some of the defendants also,) they rely upon the lapse of 10 years as a bar to the action; and, except in one answer, they rely on the extinction of the judgment lien by expiration of time during which it continues in force. It does not appear that any execution did issue within the three years next after the order of the clerk,--indeed, at any time before the bringing of the present suit, whose manifest purpose is to uphold the judgment lien by the issue of process to sell the testator's lands, and so the judgment rendered directs the issue of execution "against the real and personal estate of Blackman Lee at the date of docketing of the said judgment." Was the judgment, overriding both defenses arising out of the lapse of time, regular and right upon the facts stated? This is the inquiry presented in the defendant's appeal.
The argument in support of the ruling attempts to eliminate from the count of time the three years from the grant of letters testamentary or of administration, before which an action could not be begun, insisting that this suspending interval interrupted the running of the statute, as well as to the lien as to the remedy. Code Civil Proc. § 319. The only provision which occurs to us as having the effect of prolonging the lien is found in section 254, Code Civil Proc., which declares that "the time during which the party recovering or owing such judgment shall be or shall have been restrained from proceeding thereon by an order of injunction or other order, or by the operation of an appeal, shall not constitute any part of the ten years...
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