Fisher v. . Ballard

AlleN, J. On 18 March, 1893, Roberson Brothers obtained a judgment against Lucinda Ballard, administratrix of Stan-hope Ballard, for $113.38. About five'years thereafter, in 1898, the administratrix died. There was no further administration upon the estate until 3 July, 1911, eighteen years after the rendition of the judgment, and eleven years after the death of the first administrator. This proceeding was commenced on 11 July, 1911. Is the right of action barred by the statute of limitations? Clearly so, unless the time elapsing between the death of the first administrator in 1898 and the appointment of the second in 1911 is eliminated, and the authorities are to the effect that prior to 1905 the time between the two administrations must be excluded from the computation under that part of section 367 of Revisal which reads as follows: “If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.” Smith v. Brown, 99 N. C., 386; Brawley v. Brawley, 109 N. C., 524. The letter of this statute does not cover the case of an administration interrupted by the death of the first administrator; *329 but, as was said in. Smith v. Brown, supra,: “This clause uses language appropriate to actions against a debtor personally and not barred by tbe statute at. tbe time of bis death, and not verbally to a case where one representative dies, or is removed, and another succeeds to bis place and carries on tbe work of administration left unfinished; yet tbe analogy is so complete and tbe spirit, if not tbe letter, of tbe act, reasonably' interpreted, so closely applicable to tbe present facts, that we feel constrained to bring them under its provisions, so as to embrace them.” It would seem, therefore, that prior to 1905 tbe statute was applicable to administration interrupted by tbe death of tbe first administrator, and that tbe time between tbe two administrations would not be counted; but an important change in tbe statute was made by tbe General Assembly of 1905 by adding thereto, “Provided, such letters are issued within ten years of tbe death of such person.” Tbe effect of this proviso was considered in Matthews v. Peterson, 150 N. C., 132, and it was there held that a delay of ten years, in taking out letters of administration, was a bar to a proceeding to- sell land for assets with which to pay judgments. Tbe facts in tbe Matthews case were: Tbe plaintiff’s intestate, Haywood J. Peterson, died 12 July, 1895. Tbe plaintiff took out letters of administration 25 September, 1905. Tbe proceeding was begun 23 March, 1906, to make assets to pay five judgments taken before a justice of tbe peace 13 November, 1888, and docketed in tbe Superior Court tbe same day. These judgments were presented to tbe administrator a few weeks after bis qualification, and were admitted by him to be valid claims against tbe estate. , No personal property of tbe estate came into tbe bands of tbe administrator, and tbe Court said on these facts: “Revisal, sec. 367, which suspends tbe running of. tbe statute upon tbe death of a 'debtor till one year after tbe issuing of letters to bis personal representative (Winslow v. Benton, 130 N. C., 58), contains this clause, inserted by tbe Eevisal commissioners: ‘Provided, such letters are issued within ten years after tbe death of such person.’ Tbe Eevisal was enacted 6 March, 1905, but to go into effect 1 August, 1905. *330 The plaintiff took out Ms letters thereafter on 23 September, 1905, which was more, than ten years after the death of the judgment debtor, the plaintiff’s intestate. . . . The claim is not meritorious. More than seventeen years had elapsed after judgments taken, with no effort to enforce collection, and more than ten years after they had ceased to be causa litis. Daniels v. Laughlin, 87 N. C., 433. As to. such stale claims, evidence of payment may well have been lost. The Revisal, sec. 367, was a wise provision. The plaintiff, nevertheless, waited more than a year after, its enactment and nearly eig'ht months after the future day set for its going into effect before beginning this proceeding. .Not having moved ‘in a' reasonable time’ after the passage of the act, he is justly barred.” We are, therefore, of opinion that the facts presented come within the statute, and that under the construction placed upon the amendment of 1905, the action is barred. Reversed.