Shubrick v. Adams

• Decision Date: 26 September 1883
• Citation: 20 S.C. 49
• Parties: SHUBRICK v. ADAMS.
• Court: South Carolina Supreme Court

20 S.C. 49

SHUBRICK

v.ADAMS.

Supreme Court of South Carolina.

Sept. 26th, 1883.

1. The stay-laws of 1861-1865, did not create a legal disability to sue. State v. Carew, 13 Rich. 506.

2. Where a disability intervenes after a right of action has accrued, the currency of the statute of limitations is not arrested, and the same principle applies to a presumption of payment arising from the lapse of time.

3. The suspension of the statute of limitations by act of the legislature does not affect the presumption of payment arising from the lapse of time.

4. When a presumption of payment commenced to run in February, 1861, it became complete in twenty-years, notwithstanding the stay-laws of 1861-1865, and the suspension thereby of the statute of limitations.

5. The death of one of the obligors on a joint and several bond severed the obligation, and payments thereafter made on the bond by the survivor did not prevent the presumption of payment from running in favor of the deceased's estate.

Before PRESSLEY, J., Charleston, November, 1882.

This was an action by E. T. Shubrick, trustee, against L. G. Adams, administratrix of W. C. Gatewood. The opinion states the case.

Messrs. Rutledge & Young, for appellant.

Mr. S. Hyde, Jr., contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

This was an action brought against the respondent as administratrix of W. C. Gatewood, deceased, on a joint and several bond executed by Dr. Geddings, with Gatewood as surety. Gatewood died in February, 1861. Dr. Geddings made several payments on the bond after the death of Gatewood-the last on April 9th, 1877. Dr. Geddings died in 1878, leaving a balance on the bond unpaid. This action was commenced against the estate of Gatewood on August 21st, 1882, to recover this balance. The defendant pleaded payment, relying on the presumption arising from the lapse of time, more than twenty-one years having intervened between the death of Gatewood and the commencement of the action.

Judge Pressley, who heard the case, sustained this plea, holding that the death of Gatewood severed the obligation, and more than twenty years having elapsed since the death of Gatewood, and before the commencement of this action, that the estate of Gatewood was entitled to the presumption of payment, notwithstanding the stay-law. He therefore ordered and adjudged that judgment be for the defendant with costs. The case now comes before this court on appeal; the main question involved being whether the presiding judge erred in declining to deduct the time which elapsed during the existence of what is known as the stay-laws.

The presumption of payment arising from the lapse of twenty years, as a general principle of law, is not contested by the appellant; but it is denied that the principle applies in this case, for the reason, as it is alleged, that twenty years in the sense of that principle has not elapsed here, because, as contended by the appellant, the four years of the stay-laws should be deducted, which, if done, it is conceded that less than twenty years will be left; and such being the case, the facts would not then warrant the application of the presumption. So, as we have already said, the principal question in the case is, should the four years of the stay-laws have been eliminated.

This is the first time that this question has been distinctly made in this State as applicable to the presumption of payment of a sealed note arising from the lapse of time. The question is important, and requires mature consideration. In the recent case of Boyce v. Lake, 17 S. C. 481, where the Circuit judge had held that the presumption of payment arising from the lapse of time was rebuttable-dependent upon the weight of the testimony as to the fact of payment, and that lunacy, the insolvency or solvency of the defendant, and the stay-law were facts that might be considered as bearing upon that question, which he ruled should be decided by the preponderance of the evidence-this court reversed the judgment because of error, as we held, in the ruling of the Circuit judge, that the presumption could be rebutted by the preponderance of testimony as to the actual fact of payment.

In our opinion, founded upon authority, (see the cases referred to in Boyce v. Lake,) we regarded the presumption as having acquired an artificial force much stronger than a mere possibility, subject to be overthrown by a simple preponderance of testimony to the contrary, and that the question in such case was not one of payment to be decided by the weight of the testimony directed to that point with the onus on the plaintiff, but that on account of the artificial force which the lapse of time had given to the presumption, this was conclusive unless overthrown by testimony of the character required to resist a debt barred by the statute of limitations. This was the pith of the opinion in Boyce v. Lake, following Judge Wardlaw, Chancellor Harper and Dunkin, and Lord Ellenborough in the cases cited therein. There was no distinct motion made in Boyce v. Lake to deduct the four years of the stay-law, nor was the point squarely made or decided, although it was incidentally involved in the case. Such being the fact, we feel at liberty to consider this question independent of that case now for the first time distinctly presented.

The argument of the appellant is that the stay-law created a legal disability which prevented the assertion of his rights; and that, under the law, the currency of the presumption of payment was arrested during the continuance of such disability. The first question to be considered, in connection with this argument, is the proposition that the stay-law created a legal disability. Is this proposition a sound one? if not, and upon examination it should fall, of course, the remainder, which is a conclusion drawn from it, would go with it. Upon this point it is needless to do more than to refer to the case of the State v. Carew, 13 Rich. 506. The legislature, on December 21st, 1861, passed an act entitled “An act to extend relief to debtors, and to prevent the sacrifice of property at public sales.” By the first section it is provided “that it should be unlawful for any officer of this State to serve or execute any mesne or final process of any courts of the State for the collection of money until after the expiration of the first session of the next general assembly of this State,” &c. This act was renewed in December, 1863, again in December, 1864; and in December, 1865, it was continued of force until the adjournment of the next regular session. At the May Term of the Appeal Court, 1866, these acts, in so far as they interdicted the service of process, mesne or final, were declared unconstitutional by the Court of Errors, in the case above referred to, in a most elaborate and able opinion delivered by Dunkin, C. J.

In the face of this opinion it cannot be consistently contended that creditors were laboring under any legal disability in the enforcement of their claims by virtue of these acts. It is true for four years they stood unimpeached, and were acquiesced in; but this did not give them the sanction of law, and it is the legal aspect of the interdiction which is now under consideration. Did these acts create a legal disability which prevented the plaintiff from asserting his right? That is the question. There can be no other answer but a negative one. Upon the very first assault, and before they had been sanctioned by time or construed by inferior courts, they fell by an almost unanimous opinion of the highest court in the State, the Court of Errors. In such a case there is is no room for the doctrine of communis error. Nor is there any ground upon which it can be claimed that a legal disability existed.

But even admitting that such disability existed, would that help the appellant under the facts of this case? The following legal propositions have been established in reference to the statute of limitations in numerous decisions, and they may be regarded as firmly settled. 1. That where a party is under a legal disability at the time his right of action accrues, the statute is not put in operation until the disability ceases. For instance, in the cases of infancy, coverture, or where the defendant is absent from the State. Riddlehoover v. Kinard, 1 Hill Ch. 376;Gray v. Givens, 2 Hill Ch. 514.2. Where the disability intervenes after the right of action accrues, and, consequently, after the currency of the statute has commenced, as a general rule, it is powerless to stop the statute.

These principles are as firmly established and as well settled, perhaps, as any connected with our jurisprudence. See the cases of Fewell v. Collins, 3 Brev. *286;Adamson v. Smith, 2 Mill. Con. R. 269; Fayson v. Prather, 1 N. & M. 296, where Judge Cheves collects and discusses many authorities. Richardson v. Whitfield, 1 McCord 403. In consequence of this latter principle, whenever it has been deemed proper that the statute of limitations should not operate after its currency has once commenced, an act of the legislature became necessary to arrest it. Hence, in the stay-laws, the statute was suspended by a special provision. This provision of these acts has been declared constitutional. Barry v. Iseman, 14 Rich. 129. And it has been enforced in the case of Wardlaw v. Buzzard, 15 Rich. 162, where the plaintiff was given the benefit of the suspension.

Now, the important question arises, do these principles apply to the presumption of payment growing out of the lapse of time? Judge Wardlaw, in the case of Wadsworthville Poor School v. McCully, 11 Rich. 430, said: “The period of twenty years was originally adopted in analogy to the...