Humphrey v. Stephens

• Decision Date: 27 January 1926
• Docket Number: 291.
• Citation: 131 S.E. 383,191 N.C. 101
• Parties: HUMPHREY v. STEPHENS ET AL.
• Court: North Carolina Supreme Court

131 S.E. 383

191 N.C. 101

HUMPHREY v. STEPHENS ET AL.

No. 291.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Robeson County; Grady, Judge.

Action by W. H. Humphrey against Rexford Stephens, administrator of S. J. Taylor, deceased, and another. Judgment for plaintiff and defendants appeal. Affirmed.

Transfer of debt secured by mortgage does not per se carry right to exercise power of sale in mortgage.

McLean & Stacy, of Lumberton, for appellants.

W. H Humphrey, Jr., and McKinnon & Fuller, all of Lumberton, for appellee.

CLARKSON J.

On December 2, 1909, S. J. Taylor, for value, executed and delivered to the plaintiff his note, under seal, for the sum of $110, and, at the same time, executed a mortgage deed on a tract of land in Robeson county, containing 66 acres, more or less, for the purpose of securing the payment of said note. Thereafter, to wit, on June 10, 1911, S. J. Taylor conveyed the mortgaged lands to George B. McLeod, who, in turn, on March 11, 1913, conveyed the premises to the defendant Butters Lumber Company. S. J. Taylor, maker of the note and mortgage, died on the 26th day of December, 1914, and, on May 31, 1924, the defendant Rexford Stephens was appointed administrator of his estate. This action was instituted on July 17, 1924.

There are only two questions involved in this appeal: (1) Is the action as to the defendant administrator barred? (2) Is the right of the foreclosure of the mortgage deed barred? We do not think the action on the debt barred, and the mortgage is an incident to the debt and is not barred. There is a difference in the statute between creditor and debtor. C. S 412, in part, is as follows: (1) If a person--a creditor--one who has claim on another "entitled to bring an action died before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by his representatives after the expiration of that time and within one year from his death," etc.

In Lowder v. Hathcock, 150 N.C. 440, 64 S.E. 194, it is said:

"It is true this is an enabling and not a disabling statute, and does not cut down the time given by the general statute, but extends it (if not expired) to at least one year after death of a creditor and at least one year after issuing letters to the representative of a debtor. Person v. Montgomery, 120 N.C. 111, 26 S.E. 645."

The enabling statute, giving one year to the representatives of the creditor, does not apply if the creditor died after the bar of the statute was complete.

Under C. S. 412, supra, if a person is a debtor, one who owes another, the statute says:

"If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration, provided the letters are issued within ten years of the death of such person."

Benson v. Bennett, Adm'r of John Irvin, 112 N.C. 505, 17 S.E. 432. John Irvin, the debtor, died July 9, 1885; J. C. Bennett was appointed administrator of his estate August 21, 1885. The cause of action out of which the claim arose was May 24, 1884. If the debtor, Irvin, had not died, the action would have been barred under the 3 years' statute, May 24, 1887. The claim would have been barred May 24, 1887, 3 years from time action arose after his death without the enabling statute. The action was brought July 5, 1887--one month and 10 days too late, without the enabling statute. Exclude the time the statute did not run from the debtor's death, July 9, 1885, to time letters of administration were issued, August 21, 1885--one month and 12 days. We have one day margin--making 2 years and 11 months and 29 days--time within 3 years' statute. Redmond v. Pippen, 113 N.C. 93, 18 S.E. 50; Person v. Montgomery, 120 N.C. 111, 26 S.E. 645; Winslow v. Benton, 130 N.C. 58, 40 S.E. 840; Fisher v. Ballard, 164 N.C. 326, 80 S.E. 239; Irvin v. Harris, 182 N.C. 660, 109 S.E. 871; Id. (rehearing) 184 N.C. 547, 114 S.E. 818.

In Geitner v. Jones, 176 N.C. 544, 97 S.E. 494, it was held:

"The court below was of the opinion that the action was barred by the statute of limitations. The note in suit fell due June 18, 1912, A. A. Shuford, the payee, died May 2, 1912. J. G. Hall died August 1, 1913, and his personal representative was not appointed till August 4, 1917. Hall having died before the expiration of the time limited for the commencement of this action, the plaintiffs were entitled to institute this action 'within one year after the issuing of letters testamentary, provided such letters are issued within ten years after the death' of the debtor. Revisal, 367 [C. S. 412]. His administrator was made party to this action by summons issued February 15, 1918, and the claim, therefore, is not barred. Coppersmith v. Wilson, 107 N.C. 31 ; Winslow v. Bent [Benton], 130 N.C. 58 which holds 'that the section is an enabling and not a disabling statute. The debt not being barred, foreclosure of the security can be ordered. Revisal, 391 (3) ' [C. S. 437 (3)]."

The facts in the present case: S. J. Taylor, the debtor, executed a note under seal, secured by mortgage on certain land to plaintiff W. H. Humphrey, the creditor, on December 2, 1909. The 10-year statute would have barred the note under seal, if Taylor had lived on December 2, 1919 (according to the record it was due the day it was made). He died on December 26, 1914, and within 10 years as set forth in the statute--on May 31, 1924, the defendant Rexford Stephens was appointed administrator of his estate. This action was instituted July 17, 1924. According to the enabling statute, exclude the time between death of the debtor, S. J. Taylor, December 26, 1914, and the administration on his estate within 10 years of his death, May 31, 1924, the note being under seal is not barred. Is the right of foreclosure of the mortgage barred by the 10-year statute of limitation? The Geitner Case, supra, decides it is not.

C. S. 437 (3), period prescribed 10 years in which to bring action, quoted in Geitner Case, supra, is as follows:

"For the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same."

The above is Revisal 391 (3) and section 152 (3) of the Code 1883, vol. 1, and is construed by H. G. Connor, J., in Menzel v. Hinton, 132 N.C. 660, 44 S.E. 385, 95 Am. St. Rep. 647. The opinion was delivered May 19, 1903. Walker, J., in Cone v. Hyatt, 132 N.C. 812, 44 S.E. 678, says:

"We have held at this term in Menzel v. Hinton, that the statute of limitations does not apply to a power of sale contained in a mortgage or deed of trust, when the deed is foreclosed, not in an action brought for that purpose, but simply by the mortgagee or trustee executing the power of sale. The statute was intended to apply only to actions or suits, and this is apparent from the very language of the law. In a case where it became necessary to decide whether a sale under a power was a suit or an action within the meaning of a statute, it was held that 'a proceeding to foreclose a mortgage by advertisement is not a suit; such a proceeding is merely the act of the mortgagee exercising the power of sale given him by the mortgagor. In no sense is it a suit in any court, and all the definitions of that word require it to be a proceeding in some court.' "

C. S. 2589, is as follows:

"The power of sale of real property contained in any mortgage or deed of trust for the benefit of creditors shall become inoperative, and no person shall execute any such power, when an action to foreclose such mortgage or deed of trust for the benefit of creditors would be barred by the statute of limitations."

Revisal, § 1044, had the additional:

"Wherever an action to foreclose any such mortgage or deed of trust is now barred by the statute of limitations, the authority to execute...