McKinlay v. Gaddy

• Decision Date: 26 April 1887
• Parties: McKINLAY, Adm'r, etc., v. GADDY and others, Heirs, etc.
• Court: South Carolina Supreme Court

2 S.E. 497

26 S.C. 573

McKINLAY, Adm'r, etc., v. GADDY and others, Heirs, etc.

Supreme Court of South Carolina

April 26, 1887

MCIVER J.

The sole question presented by this appeal is whether certain claims presented against the estate of the intestate, under an order calling in creditors, are barred by the statute of limitations and the presumption of payment arising from lapse of time. All of the claims except one are notes under seal and there is no question as to the fact that the requisite time had long since run out before they were presented for proof under the above-mentioned order. The only inquiry therefore, is whether anything has occurred which would serve to arrest the operation of the statute or the currency of the time from which payment would be presumed. To determine this question a brief statement of the facts will be necessary. It appears that Levi Gaddy died intestate some time in the year 1862, and that the plaintiff, having administered on his estate, some time in that year filed a bill in equity "for sale of land, account, and partition," wherein, among other things, it was alleged "that after the sale of the personal estate of the intestate, and the payment of a portion of his debts, there remained other debts unpaid, and that to meet the same it was necessary to sell the real estate." No further proceedings seem to have been taken under this bill until the seventeenth of October 1866, when an amended bill was filed "embracing the same purposes as the original bill, and to marshal assets." This amended bill also "prays for an injunction against suing creditors, some of whom it was alleged were threatening." It does not appear, however, that any injunction was ordered, or any order calling in the creditors, until as hereinafter stated. Under this amended bill the real estate of the intestate was sold in November 1869, and the proceeds of such sale, or rather the balance thereof, is now in the hands of the master, and constitutes the subject-matter of contention in this case. After the sale of the land, no further proceedings seem to have been taken in the case, which was continued from term to term until November, 1874, when it was "stricken" from the docket; and so it remained until the seventh of June, 1886, when, on motion of the solicitor for the administrator, and with the consent of the heirs, it was restored to the docket, and an order was passed referring it to a special master to inquire and report to whom the fund should be paid,--to the creditors or to the heirs at law of the intestate. The special master made his report recommending that the fund be paid to the heirs, upon the ground that the claims presented were barred by the statute of limitations and the lapse of time. Upon hearing this report, Judge PRESSLEY, without passing upon the merits, recommitted the report to the special master for the purpose of affording creditors an opportunity to prove their claims; it being represented to him that there might be creditors who have not had an opportunity to do so. Under this order the special master made another report, in which he adhered to his conclusion that the claims were all barred. To this report exceptions were filed by the creditors, and Judge COTHRAN, who heard the case on circuit, rendered his decree sustaining the exceptions, and directing that the fund in question, after payment of costs, be paid out pro rata to the creditors. In his decree the judge says:

"It does appear from the papers in the case that several of the creditors presented their claims against the estate to the administrator in the usual way, by leaving with him copies of the same, verified or sworn to before a notary public, and these are found among the papers in the record. Mr. McDuffie was the attorney for the administrator, and in his handwriting, and with the record, is found a paper in the following terms: ' D. C. McKinlay v. J. I. Gaddy et al. Claims proven: [Then follows a list of the claims, with the amounts stated, but no dates, with a statement that all of them except one are sealed notes.]' It does not appear, however, when these claims were presented to the administrator, or when Mr. McDuffie made the list of claims above referred to, and deposited the same in the record."

The heirs at law appeal from Judge COTHRAN's decree upon the several grounds set out in the record, which substantially raise the question whether the claims were barred by the statute, or the presumption of payment by lapse of time.

It seems to be conceded that, upon their face, all of these claims are so barred; for, although it does not appear what was the date or time of maturity of any of these claims, yet as it does appear that the intestate died in 1862, they all must have arisen prior to that time, and therefore, as we have said, the only question is whether anything has occurred to take the one claim, to which the statute of limitations is applicable, out of the operation of that statute, or to remove the presumption of payment, arising from lapse of time, as to those to which the statute does not apply. Although these claims belong to different classes,--one being a simple contract, and the others being specialities to which the statute eo nomine would not apply, as they all arose prior to the adoption of the Code,--yet they may be considered together, for the only practical difference is that in the simple-contract claim the five years during which the statute of limitations was suspended by one of the sections of the act commonly called the "stay law" would have to be deducted, (Ward-law v. Buzzard, 15 Rich. 158,) while in the specialty claims no such deduction would be allowed, ( Shubrick v. Adams, 20 S.C. 49;) yet, inasmuch as, even allowing the deduction of the five years on the simple-contract claim, the statutory period would have run out before the claim was presented, or before any order of injunction or...