Gregory v. Perry

• Decision Date: 28 March 1905
• Citation: 50 S.E. 787,71 S.C. 246
• Parties: GREGORY v. PERRY et al.
• Court: South Carolina Supreme Court

50 S.E. 787

71 S.C. 246

GREGORY v. PERRY et al.

Supreme Court of South Carolina

March 28, 1905

Appeal from Common Pleas Circuit Court of Lancaster County; Gage Judge.

Action by Joseph F. Gregory, clerk of court, as administrator of the estate of Wylie R. Duren, against Mary E. Perry, H. J Beckham, and Jane Gooch, heirs of Jas. R. Massey, and H. J Beckham, administrator. From circuit court decree, defendants appeal. Modified.

See 45 S.E. 4.

Ernest Moore and Green & Hines, for appellants. R. E. & R. B. Allison, for respondent.

WOODS J.

Wylie R. Duren recovered a judgment against James R. Massey, Mary E. Massey, and Charlotte A. Massey, on July 12, 1877, for $601.44, costs of a suit instituted by them against him. In September, 1885, a summons was duly served on the judgment debtors, requiring them to show cause why the judgment should not be revived, and on December 12, 1885, an order was made by the circuit judge "that the defendants be allowed to renew their execution for the amount set forth in the summons, together with interest on same up to the present, and for the costs of this motion; the judgment to have the same force and effect as the former recovery." A tract of land was sold under the execution in 1896, and the net proceeds, $198.91, were applied to the judgment. Wylie R. Duren and James R. Massey are now dead, and this action on the judgment was commenced by the administrator of Duren against the administrator and heirs at law of James R. Massey, to subject the lands descended to the payment of the judgment debt, and for such relief against the administrator and heirs as would be proper. The main defense relied on was the statute of limitations, the judgment having been entered more than 20 years before the commencement of this action. The circuit court held the statutory period of 20 years should be reckoned from the date of the revival of the judgment, and not from the date of the original entry, and decreed in favor of the plaintiff. This ruling was decisive of the case, and the exception to it presents the main question in the appeal.

There was no statute of limitations as to judgments obtained before the adoption of the Code of Procedure, but only a presumption of payment from the lapse of 20 years subject to rebuttal by competent proof. Hence, when the judgment was revived by scire facias under the old practice, or by statutory summons under the Code of Procedure, this was held to be an adjudication absolutely binding on the defendant that at the date of the renewal the judgment was unsatisfied, and the date of the revival became the new starting point for the 20 years necessary to presume payment. Witherspoon v. Twitty, 43 S.C. 348, 21 S.E. 256; Adams v. Richardson, 32 S.C. 139, 10 S.E. 931; Wood v. Milling, 32 S.C. 378, 10 S.E. 1081; Leitner v. Metz, 32 S.C. 383, 10 S.E. 1082; Sullivan v. Shell, 36 S.C. 578, 15 S.E. 722, 31 Am. St. Rep. 894. This action, however, is on the original judgment, recovered after a fixed limitation by statute had taken the place of the presumption of payment from lapse of time. Statutes of limitation are statutes of repose, not of presumptions, and for this reason the cases above cited are not conclusive of the question now under consideration. This being so, the defendants insist that while section 311 does allow a recovery on a judgment in an action commenced more than 20 years from its date, if it "be established by competent and sufficient evidence that said judgment, or some part thereof, remains unsatisfied and due," yet the only "competent and sufficient evidence" is the part payment or new promise in writing referred to in section 131 of the Code of Civil Procedure of 1902. Section 311 is thus construed in Latimer v. Trowbridge, 52 S.C. 193, 196, 29 S.E. 634, 68 Am. St. Rep. 893: "It would seem, therefore, that the object of section 311 of the Code was to repeal any inference that might possibly be drawn from the provisions of 309 and 310 that after the lapse of twenty years from the date of the entry of a judgment no proceeding of any kind could be instituted to enforce the...