Allsbrook v. Walston
| Decision Date | 13 October 1937 |
| Docket Number | 175. |
| Citation | 193 S.E. 151,212 N.C. 225 |
| Parties | ALLSBROOK v. WALSTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Halifax County; Henry A. Grady, Judge.
Action by H. C. Allsbrook, administrator, against E. A. Walston. Judgment for plaintiff, and defendant appeals.
Affirmed.
A note ostensibly under seal is evidence of a sealed instrument.
Civil action to recover balance due on promissory note in words and figures as follows:
"$1000.00 Scotland Neck, N. C.,
June 11, 1925.
On October 11, 1925, after date, I promise to pay to the order of E. A. Allsbrook, One Thousand and No/100 Dollars with interest at 6% per annum, after date.
Payable at The Scotland Neck Bank, Scotland Neck, N. C., for value received.
[Signed] E. A. Walston [Seal]
------ [Seal]." Three credits appear on said note, the last being for $25 paid on November 26, 1930. This action was instituted November 30, 1936.
The defendant admitted the execution of the note, pleaded that it was not under seal, and interposed by way of defense the three-year statute of limitations.
Plaintiff offered the note in evidence, admitted that the word "Seal" in brackets, opposite defendant's signature, was printed on the note before the defendant signed it, and rested.
The defendant demurred to the evidence, which was overruled, and he appeals from a directed verdict and judgment for plaintiff, assigning errors upon exceptions duly preserved.
E. L Travis, of Halifax, and Wade H. Dickens, of Scotland Neck for appellant.
Stuart Smith and Ashby Dunn, both of Scotland Neck, for appellee.
The defendant having pleaded the statute of limitations, the burden was on the plaintiff to show that his suit was commenced within the requisite time from the accrual of the cause of action, or that otherwise it was not barred. Rankin v. Oates, 183 N.C. 517, 112 S.E. 32; Drinkwater v. Tel. Co., 204 N.C. 224, 168 S.E. 410. "Upon the plea of the statute of limitations the burden is upon the plaintiff to show, or to offer evidence tending to show, that he has brought a live claim to court." Brogden, J., in Savage v. Currin, 207 N.C. 222, 176 S.E. 569, 571.
It is conceded that if the note in suit be a sealed instrument, the ten-year statute, C.S. § 437, applies, otherwise the three-year statute, C.S. § 441, is applicable; and, further that if the ten-year statute be applicable, the action is not barred, while, if the three-year statute applies, it is barred. Wachovia Trust Co. v. Clifton, 203 N.C. 483, 166 S.E. 334, 84 A.L.R. 725.
The case, then, comes to a single question, Has the plaintiff offered evidence of a sealed instrument? We think the trial court correctly answered the question in the affirmative.
It is true, the note contains no recital of a seal in the body of the instrument, nevertheless the word "Seal" appears in brackets at the end of the line, opposite defendant's signature, which is the usual place for a seal. In Hughes v. Debnam, 53 N.C. 127, it was said that a seal appearing upon an instrument, opposite the name of the grantor, in the place where the seal belongs, will, in the absence of proof that the grantor intended otherwise, be valid as a seal. To like effect are the decisions in Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 L.R.A. 205, and Yarborough v. Monday, 13 N.C. 493, Id., 14 N.C. 420. See Philip v. Stearns, 20 S.D. 220, 105 N.W. 467, as reported in 11 Ann.Cas. 1110, and note. Contra, Caputo v. Di Loretto, 110 Conn. 413, 148 A. 367.
The plaintiff rested his case upon offering evidence of a sealed instrument. There is no proof that the maker intended otherwise. This defeats the motion to nonsuit. Baird v. Reynolds, 99 N.C. 469, 6 S.E. 377; Harrell v. Butler, 92 N.C. 20; Pickens v. Rymer, 90 N.C. 282, 47 Am.Rep. 521.
The case of Williams v. Turner, 208 N.C. 202, 179 S.E 806, cited and relied upon by defendant, is not in point. There, the court was dealing with a finding upon the record that the maker of the note had no intention at the time of executing a sealed instrument and that he did not adopt as his seal the word "Seal" appearing in parenthesis at the end of the line opposite his signature. Hence, upon the finding, it was declared to be a simple contract. Lynam v. Califer, 64 N.C. 572. Here, there is no such finding. Jefferson Ins. Co. v. Morehead, 209 N.C. 174, 183 S.E. 606. There, we were not concerned with any question of evidence or the burden of proof. Here, we are concerned with a question of evidence and the burden of proof. There, the note contained no recital respecting a seal and it was not required by law to be under seal. Here, the note contains no recital respecting a seal and it is not required by law to be under seal. There, the action was...
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