Arrington v. Rowland

• Decision Date: 02 March 1887
• Citation: 97 N.C. 127,1 S.E. 555
• Court: North Carolina Supreme Court
• Parties: Arrington and others, Ex'rs, v. Rowland, Ex'r.

1 S.E. 555

(97 N.C. 127)

Arrington and others, Ex'rs,

v.Rowland, Ex'r.

Supreme Court of North Carolina.

March 2, 1887

Limitation of Actions—Simple Debt—Covenant—Deed of Trust.

A. was surety on the bond of B. as administrator of C.; and, anticipating that A. would sustain a loss by reason of a pending suit on the bond, B. executed to him a deed of trust, covenanting to pay over to him the funds and assets of the estate to meet such loss, any balance to be refunded to the estate, and conveying to him. to secure any advances he might make, a farm, with power to sell it at public auction after the death of B. if such advances had not been repaid. A. was compelled to pay $4,642.92, to recover which his executor sued B.'s executor, who pleaded the three-years limitation applicable to actions to recover debts due by simple contract. Held, that by the deed the debt was made due by covenant, and actionable only at the death of B., and that the statute pleaded did not bar the action.

Appeal from superior court, Nash county.

Bunn & Battle, for plaintiffs.

No appearance for defendant.

Merrimon, J. The plaintiffs are the executors of the will of A. H. Arrington, who died in 1872, and to whom and for whose benefit the deed below set forth was executed. The defendant is the executor of the will of W. H. Rowland, who died in January of 1886, and who was the maker of the deed referred to below. The plaintiffs bring this action to recover $4,642.92, with interest thereon (less $130 paid February 18, 1877) from November 1, 1873, which they were compelled to pay as executors of their testator on account of the suretyship of their testator mentioned and provided for in the same deed below set forth, and they allege that the money so paid by them is embraced by and constitutes part of the indebtedness provided for and secured by the same. The defendant in his answer pleads that the alleged cause of action did not accrue within three years next before the bringing of this action, and the same is therefore barred by the statute of limitations. The court so held, and gave judgment for the defendant, from which the plaintiffs, they having excepted, appealed to this court.

The following is a copy of the deed above referred to, alleged in the complaint, and relied upon by the plaintiffs:

"This indenture made this twenty-fifth of June, 1872, between W. H. Rowland of the one part, and A. H. Arrington of the other part, both of the county of Nash and state of North Carolina witnesseth, that whereas, the said W. H. Rowland, with Willis F. Rowland, did qualify as administrators on the estate of the late Elijah B. Hilliard at August term of Nash county court, in the year 1862, and entered into bond, as administrators aforesaid, in the sum of one hundred andfifty thousand dollars, or some other large amount, with said A. H. Arrington, H. G. Williams, and L. M. Conyers as sureties on said bond; and whereas, there is a suit pending in the supreme court of North Carolina between the heirs of the said E. B. Hilliard, deceased, as plaintiffs, and said W. H. Eowland and Willis F. Rowland as administrators aforesaid, defendants, the final decision of which suit is involved in uncertainty; and whereas, the result of said suit may involve the said A. H. Arrington and other said sureties, aud cause them to be liable to pay and sustain loss on account of said suretyship; and whereas, the said W. H. Rowland is anxiously and honestly desirous to hold the said A. H. Arrington and other said sureties harmless on account of any loss from said suretyship, —he, the said W. H. Rowland, agrees to advance and pay over all the funds and assets of every kind belonging to said estate that may be on hand, to meet any amount the court may decide is...