Ervin v. Brooks

• Decision Date: 29 November 1892
• Citation: 16 S.E. 240,111 N.C. 358
• Parties: ERVIN et ux. v. BROOKS.
• Court: North Carolina Supreme Court

16 S.E. 240

111 N.C. 358

ERVIN et ux. v. BROOKS.

Supreme Court of North Carolina

November 29, 1892

Appeal from superior court, Onslow county; R. W. WINSTON, Judge.

Action by John A. Ervin and wife against Mary C. Brooks administratrix, on a bond. From a judgment for defendant plaintiffs appeal. Affirmed.

Where a bond, given to secure the purchase price of a wife's land, is made payable to her husband as trustee, and the statute of limitations has begun to run against the husband the subsequent transfer of the bond to the wife will not suspend the operation of the statute, since if the trustee is barred, the beneficiary is barred also.

F. D Koonce and S.W. Isler, for appellants.

Battle & Mordecai, for appellee.

SHEPHERD C.J.

This action was commenced on the 16th of June, 1890, and is founded upon a bond executed by the defendant's intestate on the 25th of November, 1872, and payable to John A. Ervin or order.

There being no time specified for the payment, it was due at once, and the statute of limitations began to run from its date. Caldwell v. Rodman, 5 Jones, 139; Little v. Dunlap, Busb. 40; Ang. Lim. 114. This being so, and there being no partial payments, nor any written promise or acknowledgment, it is plain that the bond was barred by the statute, even before the death of the obligor, in January, 1883.

It is insisted that the consideration of the bond was money arising from the sale of the land of the feme plaintiff, and it was alleged that the name of her husband was inserted as obligee by reason of a mistake of the parties. It is therefore argued that, as the feme plaintiff has been under the disability of coverture ever since the execution of the instrument, she cannot be barred by the lapse of time. His honor very properly held that there was no evidence of such mistake, and it must necessarily follow that the plaintiff's contention in this respect must fail.

Treating the case, however, in the most favorable aspect for the feme plaintiff, and assuming that the husband held the bond as a trustee for her benefit, we are unable to see how she can recover. There is no suggestion of fraud in the case, and it appears that on the night succeeding the execution of the bond it was delivered to her by her husband with full knowledge of the facts. She made no objection to the insertion of her husband's name as payee, and has never taken any steps to have him declared a trustee. Indeed, it was...