Hughes v. . Boone

(’lark, J.: The judgment was docketed January 13,1876. The judgment debtor died October 20, 1884. The judgment was then already barred (The Code, §102, par. 1) unless there was something on the other side which suspended the running of the statute of limitations. The partial payment made on the judgment April 28, 1874, did not have that effect. McDonald v. Dixon, 87 N. C., 404. And, besides, ten years from that date had also elapsed. Nor did the death of the judgment creditor, September 8, 1881, suspend the statute, for the effect of that was only to give one year’s time from the death of the creditor to the personal representative to bring action; if otherwise it would have been barred bjr the lapse of ten years before such year had expired. The Code, §164; Benson v. Bennett, 112 N. C., 505. But there was more than one year after the death of the creditor before the ten years expired, and therefore section 164 has no place. *57 Nor does The Code, §168, suspending the time during the controversy over the probate of a will, apply, as that, evidently from its terms is intended for cases in which there was no administrator during the contest over the will of the debtor. If there was no collector or special administrator of the creditor’s estate in such case, it being the plaintiff’s own laches, it would not suspend the statuté. This distinction appears again in section 164, where one year is allowed after the death of the creditor and one year after administration upon the estate of the debtor. The reason for the difference is pointed out in Coppersmith v. Wilson, 107 N. C., 31. But even if there was not this distinction and section 168 applied also when there was'a contest over the probate of the creditor’s will, still, the statute having been pleaded, it devolved upon the plaintiff to show that the claim was not barred (Clark’s Code, 39, and cases there cited), and he has failed to show that there was no executor or collector authorized to sue during the pendency of the contest about the probate of the will. Indeed, it appears strongly from the evidence that there was, as the claim was presented by plaintiff to defendant soon after his qualification in October, 1884. Besides, action was not begun within one year after the administration upon the estate of the debtor (even excluding the time of contest over the probate of the creditor’s will, which ended October 5,1885) and the claim was not admitted by defendant administrator (The Code, §164), but was denied. The action was begun February 26, 1889. In any aspect it was barred. The plaintiff’s debt being barred, he cannot derive any aid from the allegation that the defendant administrator lias filed no account or inventory. Redmond v. Pippen, 113 N. C., 90. No Error.