Ingram v. Smith

Decision Date20 September 1972
Docket NumberNo. 7219SC496,7219SC496
Citation191 S.E.2d 390,16 N.C.App. 147
PartiesHenry L. INGRAM, Jr., Substituted Trustee, v. Dock G. SMITH, Jr., Administrator of the Estate of Henry Fletcher Garner, Deceased.
CourtNorth Carolina Court of Appeals

John Randolph Ingram, Asheboro, for plaintiffs appellants.

Coltrane & Gavin by W. E. Gavin, Asheboro, for defendant appellee.

CAMPBELL, Judge.

The judgment on which this action is based was entered on 11 February 1959; this action was commenced on 20 February 1969. Although in fact more than ten years have passed since the judgment was entered, whether the ten-year statute of limitations has run to bar suit depends upon the effect of G.S. § 1--22, since the defendant, H. F. Garner, is now deceased.

G.S. § 1--22 provides in part that '(i)f 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.'

The statute makes a distinction between claims In favor of a decedent's estate and claims Against a decedent's estate. The former must be brought within one year of death, while the latter within one year of letters testamentary or administration. The reason for this distinction is that the time during which there was no administration upon the estate of the claimant should be counted because the law does not encourage remissness in those entitled to administration. Coppersmith v. Wilson, 107 N.C. 31, 12 S.E. 77 (1890).

G.S. § 1--22 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 which, in regular course, but for the interposition of this section, the claim would become barred in less time than one year from such grant. Benson v. Bennett, 112 N.C. 505, 17 S.E. 432 (1893).

G.S. § 1--22 was not intended to be a restriction on the statute of limitations 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 until a later date. Benson v. Bennett, Supra.

In addition, in counting the time of the statute of limitations, where the debtor is deceased, the time from his death until the appointment of the personal representative is Not included, provided that the estate is administered within ten years after the death. Humphrey v. Stephens, 191 N.C. 101, 131 S.E. 383 (1925); Prentzas v. Prentzas, 260 N.C. 101, 131 S.E.2d 678 (1963).

In the instant case the judgment was rendered 11 February 1959, and would have been barred on 11 February 1969, without application of G.S. § 1--22. The judgment debtor died on 20 August 1965, and letters of administration were issued 3 November 1966. There remained more than one year from this date before the claim would have been barred by the lapse of ten years.

The complaint was filed 20 February 1969, nine days past the final statute of limitations date. However, the time between defendant's death and issuance of letters amounted to one year, two months, and fourteen days, which time is not counted. Although more than a year had elapsed in this case after the grant of letters of administration before suit was commenced, yet, excluding the time between death and administration, the time elapsing between the original judgment and this suit thereon only eight years, nine months and twenty-five days had passed. The ten-year statute of limitations cannot apply to bar suit on the judgment. The ten years not having run, it is not necessary to consider whether plaintiff had filed a claim against the estate and whether the claim has been admitted by the personal representative.

As a general rule of common law one joint tort-feasor may not sue another for indemnity. An exception exists, however, where one is actively negligent, the other only passively negligent--the one whose negligence is passive may, upon payment of the judgment, sue the other for indemnity. This right is said to arise from a contract implied in law. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E.2d 768 (1953). At the time of Reece Trotter's judgment G.S. § 1--240 allowed joint tort-feasors who were In pari delicto--in equal fault--to sue for contribution where one has paid more than his proportionate share of the judgment. This statute, G.S. § 1--240, provided a new right of action wholly distinct from the common law right of indemnity. The rights of contribution and indemnity are mutually inconsistent; the former assumes joint fault, the latter only derivative fault. Edwards v. Hamill, 262 N.C. 528, 138 S.E.2d 151 (1964).

The statute giving joint tort-feasors the right to contribution, and allowing one joint tort-feasor to preserve the judgment lien as against the other does not affect the common law right of indemnity arising from primary-secondary liability. When the judgment was assigned to a trustee for the benefit of W. C. Garner, such assignment worked only to subrogate the trustee to the rights of the judgment creditor with respect to the lien and other incidents of the judgment for the benefit of his Cestui que trust. Where the judgment is paid in full or otherwise satisfied, it is absolutely discharged notwithstanding that an assignment is made to a trustee to keep it alive, if the payor is not, aside from the assignment, entitled to contribution, subrogation or indemnity. However, if the payor is...

To continue reading

Request your trial
8 cases
  • Larson Mach., Inc. v. Wallace
    • United States
    • Arkansas Supreme Court
    • 10 March 1980
    ...in a case where there is no express contract therefor is liability upon an implied contract or quasi-contract. Ingram v. Smith, 16 N.C.App. 147, 191 S.E.2d 390 (1972), cert. den., 282 N.C. 304, 192 S.E.2d 195; Rieger v. Frankstram Realties, Inc., Sup., 68 N.Y.S.2d 243 (1946). Indemnity may ......
  • Hager v. Brewer Equipment Co.
    • United States
    • North Carolina Court of Appeals
    • 14 March 1973
    ...but '. . . a separate action for indemnity may not be commenced until after payment and satisfaction of the debt.' Ingram v. Smith, 16 N.C.App. 147, 152, 191 S.E.2d 390, 394, cert. denied, 282 N.C. 304, 188 S.E.2d In Pritchard v. R.R., Supra, plaintiff, an initial carrier, was compelled to ......
  • Shealy v. Lunsford, No. 1:03 CV 1000.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • 31 January 2005
    ...102 (1989)("[T]he right to contribution does not exist unless two or more parties are joint tortfeasors."); Ingram v. Smith, 16 N.C.App. 147, 151, 191 S.E.2d 390, 393 (1972)("As a general rule of common law one joint tort-feasor may not sue another for indemnity" unless one tortfeasor is ac......
  • Lassiter v. Faison
    • United States
    • North Carolina Court of Appeals
    • 20 July 1993
    ...to plaintiff's claim to comport with that "time specified for the presentations of claims in G.S. 28A-19-3." In Ingram v. Smith, 16 N.C.App. 147, 191 S.E.2d 390, cert. denied, 282 N.C. 304, 192 S.E.2d 195 (1972), this Court considered § 1-22 and wrote: G.S. 1-22 is an enabling not a disabli......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT