Dickson v. . Crawley

SheRUKru, C. J.: The objection that there was no legal assignment of the judgment to the plaintiff Hickson is without force. A private sale of a chose in action by an executor or administrator, if made in good faith, is valid, although, says Daniel, J., it would be mto11 to follow “the direction of the statute; for if the executor or administrator fails to obtain as much at private sale as would have been got at public vendue, he or they would bo bound to make good the deficiency out of their own pockets.” Wynns v. Alexander, 2 Dev. & Bat. Eq., 58; Gray v. Armistead, 6 Ired. Eq., 74. In the case of several executors (unlike the case of several administrators) a sale made by one will pass the title (Gordon v. Finlay, 3 Hawks, 239), hut we do not see how this latter point arises in the present action, as both of the executors are parties plaintiff and allege that the judgment was assigned to Hickson, their co-plaintiff. This would be a ratification of the act of the co-executor making the sale, had such ratification been necessary. Neither do we see any error in the ruling of his Honor that the plaintiff was not barred by lapse of time. The judgment was taken against W. S. Moore, administrator of John A. Hickson, deceased, and W. F. McKesson as surety, at Spring Term, 1869, the action having been commenced prior to the adoption of the Code of Civil Procedure. *633 The judgment as to McKesson was absolute and final, and being a new causa litis is governed by the statute of limitations prescribed in The Code. As to the administrator of said Dickson, it was a judgment quando acciderint, and the statute of presumptions under the prior law is alone applicable. Gaither v. Sain, 91 N. C., 304; Smith v. Brown, 99 N. C., 377. The said administrator Moore died in 1869, and there was no administration upon the estate of Dickson until 1886. This suit having been commenced in 1890, it must follow that no presumption of payment has arisen, as it has been decided that in computing the time under the statute the period during which there was no administration must be excluded. Long v. Clegg, 94 N. C., 763; Baird v. Reynolds, 99 N. C., 469. ft is urged, however, that the law raises a presumption that the judgment has been paid by the co-judgment debtor, McKesson, and that the plaintiff must rebut such presumption. It must be noted that this action is not against McKesson, but on the quando judgment against the representative of Dickson. As we liarle seen, no presumption of payment has arisen on this quando judgment, and as the statute of presumptions was never applicable to the final judgment against McKesson, we are of the opinion that the authorities which hold that a presumption of payment as to one is a presumption of payment as to all have no application to this case. The other exceptions have been examined and are untenable. Affirmed.