Baird v. Reynolds

• Decision Date: 30 April 1888
• Citation: 6 S.E. 377,99 N.C. 469
• Court: North Carolina Supreme Court
• Parties: Baird et al. v. Reynolds.

6 S.E. 377

(99 N.C. 469)

Baird et al.

v.Reynolds.

Supreme Court of North Carolina.

April 30, 1888.

1. Limitation of Actions—Exceptions and Disabilities—Death of Parties.

The time elapsing between the death of a debtor and the appointment of an administrator is excluded in computing the length of time the statute of limitations has been running against the debt, but the time elapsing between the death of the creditor and the appointment of his administrator is not so excluded.

2. Same—Acknowledgment—Province op Jury.

Where there is evidence in a case showing that a debt barred by the statute of limitations has been acknowledged by the debtor within the statutory period, it is error for the court to charge that, "upon the testimony, the presumption of payment has arisen."

3. Contracts—Seal—Province of Jury.

The question as to whether a scroll, purporting to be a seal, is such, is for the court, but the question as to whether any such scroll or mark has ever been placed on a mutilated instrument is one of fact for the jury.

Appeal from superior court, Buncombe county; MacRae, Judge.

Action by I. V. Baird and E. Baird, administrators of W. R. Baird, against W. T. Beynolds, administrator of D. Reynolds, to recover the balance due on a sealed note. Judgment for defendant, and plaintiffs appeal.

Jones & Shuford, for appellants.

Chas. A. Moore, for appellee.

Davis, J. Civil action tried before MacRae, J., at March term, 1888, of Buncombe superior court. Plaintiffs sought to recover the alleged balance due upon a note under seal made by the defendant's intestate to J. S. T. Baird, in 1863, for $1,500, which note was assigned to plaintiffs' intestate, and a credit of $1,100, November 1, 1863, admitted. Defendant denied all the allegations of the complaint; pleaded counter-claims; scale of Confederate currency; "that more than 10 years have elapsed since the plaintiffs' alleged cause of action accrued and before the commencement of this action, and the same is barred by the statute of limitations in such case provided." And the same as to three years. This action was begun on the 5th of January, 1880. The plaintiffs offered a paper much mutilated and worn and in several pieces. W. E. Weaver, a witness for plaintiffs, testified that he knew the handwriting of Daniel Beynolds. The writing was very dim. Witness thinks that it is Daniel Reynolds' signature. Witness' best impression is that he has seen the note before, that it was, at that time, all in one piece, and he recognized the credit indorsed as in W. R. Baird's handwriting. Witness further testified that in 1877 or 1878 he saw Daniel Reynolds a short time previous to his death, and mentioned to him something about his indebtedness to W. R. Baird; but witness does not know that he mentioned this note. Daniel Beynolds replied it was true Uncle Billy (meaning W. R. Baird) did claim that he (Beynolds) owed him something, but if Dr. Baird (meaning J. S. T. Baird) would come forward and do what was right, he (Reynolds) would not owe him a cent. It was in evidence that W. R. Baird died in November, 1883, and the plaintiffs qualified as his administrators January 1, 1884; that Daniel Reynolds died January 21, 1878, and the defendant qualified as his administrator April 2, 1878; and that the note was dated in 1863, with a credit indorsed November 1, 1863. Dr. Reagan testified for the plaintiffs that, during the war, he (witness) had possession of W. R. Baird's papers, and that amongthem "there was a note given by Daniel Reynolds to J. S. T. Baird for $1,500, and that this part (meaning that piece of the paper produced) looks exactly like it; that it was all in one piece then; the balance, or other pieces, is so dim that witness cannot swear to it. Witness does not recollect the indorsement, but he knows that the note was transferred to W. R. Baird." Much testimony was offered by the defendant in support of his counter-claim, but it and the issues relating thereto are immaterial for the purpose of this appeal. Dr. Beagan was recalled for the plaintiffs, and testified "that he was pretty well satisfied that the note was under seal." The plaintiff asked the presiding judge to inspect the paper offered and declare whether there is a seal affixed to the signature of the maker. The presiding judge examined the note and stated that he could not determine by inspection whether there was a seal or not, and left it to the jury as a question of fact to determine. Plaintiffs excepted. W. E. Weaver was recalled by the plaintiffs and testified that upon examination of the note there seems to be a seal there with the name written over it. The issues material to this appeal were: (1) Is the defendant indebted to the plaintiffs, as alleged in the complaint? If so, in what amount? (2) Is said indebtedness barred by the statute of limitations? The plaintiffs on the trial insisted that the evidence of W. E. Weaver as to the declaration of Daniel Reynolds a short time before his death was some evidence to go to the jury to rebut the statutory presumption of payment of said note, and, further, that the time between the death of defendant's intestate and the appointment of defendant as his administrator should be excluded in counting the time in which the...