Joyner v. Massey
| Decision Date | 07 March 1887 |
| Citation | 1 S.E. 702,97 N.C. 148 |
| Parties | JOYNER v. MASSEY. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Wilson county.
Where a surety on a note under seal has prevented suit from being brought thereon within the three years prescribed by the statute as the limitation of such suit, by making an express promise to pay the note, an action against him must be brought within three years from such promise, or it will be barred.
F. A Woodard and Blount & Murray, for plaintiff.
Geo. V Strong, for defendant.
This was a civil action tried before SHEPHERD, J., at fall term 1886, of Wilson superior court. The plaintiff alleged that one Nathan Edgerton and the defendant executed to him a note of which the following is a copy:
[Signed] "NATHAN EDGERTON. [Seal.]
"WILLIAM MASSEY." [Seal.]
And that no part of said note bas been paid.
The defendant's answer admitted the execution of the note, but insisted that he had signed it as surety, and relied upon the statute of limitations. The plaintiff replied, admitting that the defendant had signed the note as surety, but alleging that action had been delayed by the plaintiff, at the special request of the defendant, for his accommodation, and upon his express promise to pay the same. The summons was issued the sixteenth day of August, 1883. Issues were submitted to a jury, who found (1) that suit upon the note was delayed by the plaintiff at the special request of defendant for his accommodotion, and upon his express promise to pay the same; and (2) that the request and promise were made in May, 1877. Upon this verdict the defendant moved for judgment, upon the ground that more than three years had expired after May, 1877, and after the note become due, before the action was commenced. This was refused, and judgment rendered for plaintiff, and defendant appealed.
It is admitted by the plaintiff that the defendant signed the note as surety. It is well settled by statute and by decisions that three years is a bar to an action against a surety to a note, though under seal. Knight v. Braswell, 70 N.C. 709; Welfare v. Thompson, 83 N.C. 276; Capell v. Long, 84 N.C. 19.
The only question for our consideration is, did the defendant's request for delay, and his promise to pay, remove the bar of the statute? If the action had been brought within three years after this request and promises, the statute would not equitably have barred, though in Shapley v. Abbott, 42 N.Y. 443, it was held in a case like this that a verbal promise not to plead the statute was not sufficient to avoid the operation of the statute.
In Haymore v. Commissioners Yadkin Co., 85 N.C. 268, it was said that a court of equity would restrain a party from pleading the statute of limitations, who had agreed not to take advantage of the delay in bringing the action, thereby contributing to such delay; and the case of Lyon v. Lyon 8 Ired. Eq. 201, is relied on. In that case, Eleanor Lyon, the plaintiff, who was the widow of Robert Lyon, deceased, the intestate of the defendant administrator, had lost her legal right to a year's support, by a failure to petition therefor at the term of the court in which administration was granted, as was then required, and she placed her equity on the alleged agreement of the defendant, the administrator and only child of intestate, that she need not apply for her year's support at the first term of the court, but might do so at a succeeding term, by which agreement she had lost her legal rights to a year's support. The defendant denied this agreement, and sought to diminish the distributive share of the widow (who and himself were the sole distributees) by charging her with sums which he had advanced and paid to her by mistake, as he alleged, on account of her year's support; nor was the defendant allowed credit for the advancements made to her on account of it. RUFFIN, C.J., said: "There...
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