Benson v. Bennett

• Decision Date: 18 April 1893
• Citation: 17 S.E. 432,112 N.C. 505
• Parties: BENSON v. BENNETT.
• Court: North Carolina Supreme Court

17 S.E. 432

112 N.C. 505

BENSON v. BENNETT.

Supreme Court of North Carolina

April 18, 1893

Appeal from superior court, Rockingham county; J. F. Graves, Judge.

Action by J. H. Benson against J. A. Bennett, administrator of John Irvin, deceased. There was a judgment for defendant, and plaintiff appeals. Reversed.

Mebane & Scott, for appellant.

CLARK J.

The defendant's intestate died on the 9th of July, 1885, and administration was granted on his estate on the 21st of August, 1885. The auction sales, for the balance due from which this action is partly brought, took place on the 24th of May, 1884, and this action was begun on the 5th of July 1887. As we understand it, the only question presented by the appeal is whether, under a proper construction of section 164 of the Code, ^[1] this demand is barred, for as to the account for goods sold and delivered, if the last item of the account was, as averred, on the 6th of May, 1876, that part of the plaintiff's demand is clearly barred. Section 164 of the Code is an enabling, not a disabling, statute. It means that if, at the time of the death of the debtor, the claim is not barred, action may be brought within one year after the grant of letters to the personal representative in those cases were, in regular course, but for the interposition of this section, the claim would become barred in less time than one year from such grant. It was not intended to be a restriction on the statute of limitation so that a claim should become barred by the lapse of a year from the grant of letters, where, in regular course, but for this section, it would not be barred till a later date. The object in view is that, when the cause of action survives and is not barred at the time of the death, there shall be at least one year after the death of the creditor, or one year after the grant of letters of administration to the personal representative of the debtor, before action is barred. This is conclusively shown by the words of the section, that if the party die before the claim is barred, action may be brought "after the expiration of the time limited, and within one year." Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. Rep. 77, decides nothing more than the distinction that, though the one year allowed by section 164 is counted from the death of the creditor, it is counted only from the grant of letters, when it is the debtor who dies. Although more than a year had elapsed in...