Ashley Horne Corp. v. Creech

BbogdeN, J. The two paramount questions of law involved in the appeal are: 1. Is the claim of the plaintiff barred by the statute of limitations? 2. Was there any evidence to support the findings of fact by the trial judge in findings Nos. 9 and 10 that there was a full settlement of all matters in dispute between all the parties? The referee found that the first one of the Mial notes to the plaintiff matured on 1 January, 1922, and that there was an acceleration clause in each note “providing that in default in payment of either principal or interest that then the whole debt, as evidenced by the other bonds, should become due at once without demand. The entire indebtedness represented by the said bonds became due and payable on 1 January, 1922.” The trial judge approved this finding of fact. Consequently, as Yinson died in May, 1923, the statute of limitations had commenced to run in his lifetime. Hence O. S., 412 becomes pertinent to the inquiry. This statute provides in substance that if the statute of limitations begins to run against a person in his lifetime and he dies before the bar is complete, and the cause of action survives,” an action may be *62 commenced against bis personal representative after tbe expiration of tbat time and witbin one year after tbe issuing of letters testamentary or of administration. ... If tbe claim upon wbicb tbe cause of action is based is filed with tbe personal representative witbin tbe time above specified and admitted by bim, it is not necessary to bring an action upon sucb claim to prevent tbe bar, but no action shall be brought against tbe personal representative upon sucb claim after bis final settlement.” Applying this statute to tbe facts, two questions arise: First, did tbe plaintiff file a claim witbin one year with tbe personal representative of J. A. Yinson, and second, did sucb personal representative admit tbe claim? Tbe statute began to run on 1 January, 1922, and this suit was brought in July, 1929, so tbat if tbe claim of tbe plaintiff was not filed with and admitted by tbe personal representative, tbe claim is outlawed and tbe plaintiff must go out of court. No particular form is prescribed by law with respect to tbe meaning of tbe term “filing.” In some of tbe old books it was intimated tbat it was tbe duty of an executor or administrator to “string tbe claims” submitted to bim for payment. Tbe question has been dismissed in the following cases: Flemming v. Flemming, 85 N. C., 127; Whitehurst v. Dey, 90 N. C., 542; Woodlief v. Bragg, 108 N. C., 572, 13 S. E., 211; Turner v. Shuffler, 108 N. C., 642, 13 S. E., 243; Grady v. Wilson, 115 N. C., 344, 20 S. E., 518; Stonestreet v. Frost, 123 N. C., 640, 31 S. E., 836; Hinton v. Pritchard, 126 N. C., 8, 35 S. E., 127; Justice v. Gallert, 131 N. C., 393, 42 S. E., 850. These cases enunciate certain indicia for solving tbe question involved: (a) Tbe personal presentation of a claim to an administrator or executor, stating tbe amount thereof, is not a sufficient filing to suspend the running of tbe statute when tbe administrator is silent and neither rejects tbe claim nor admits liability. Flemming v. Flemming, supra, (b) Tbe mere bolding of a claim by a personal representative without objection, is not per se an admission of its correctness, (c) Where the administrator advised the claimant tbat it was not necessary to get a lawyer “tbat be would see tbe judge and do whatever be said” did not amount to a filing or waiver of tbe statute. Grady v. Wilson, supra. A claimant cannot compel an administrator “to string tbe claims,” but if tbe validity of tbe claim is expressly recognized or admitted, this will constitute a filing. Perhaps tbe clearest statement of tbe principle appears in Justice v. Gallert, supra, where tbe Court bolds tbat a claimant has done all be is required to do “when be has presented it to tbe administrator with sufficient identity as to tbe nature and amount of tbe debt, and tbe admission of its validity by tbe administrator dispenses with any formal proof thereof.” *63 Applying these principles to the evidence, it appears that the secretary and treasurer of the plaintiff corporation said: “After I gave him as executor notice concerning the claim, Mr. J. T. Yinson came in and looked over the notes. Mr. J. T. Yinson, as executor of the estate of J. Arch Yinson, after I gave him notice and after he examined the note, did not deny liability on the part of the estate. He did not question the claim.” Mere silence of an administrator when a claim is presented, does not suspend the running of the statute. Fleming v. Fleming, sufra. However, the defendant Creech testified that “when I became administrator of the estate of Mr. J. A. Yinson, I went over the assets and claims against the estate. I found the Albert Mial note listed in the amount outstanding against the estate. ... I reported to the court that the claim was unpaid. I had an audit made and filed it with the clerk of the Superior Court.” Manifestly, whether an administrator has said anything or not when a claim is presented, if such claim is thereafter set up on the books of account of the estate as a liability of the estate, and so reported to the clerk in the official report of the personal representative, such act or conduct constitutes a filing of the claim. Therefore, the first question of law involved in the appeal must be answered in the negative. With reference to the question as to settlement between the parties, it appears from the evidence that the Horne Corporation was composed of the children of Ashley Horne. C. W. Horne, a son of Ashley Horne, was the president of the corporation and general manager of the business. C. W. Horne was also a member of the partnership of Ashley Horne and Son, and the evidence tends to show that the Horne business was carried on in the same building, according to the same methods, and in the same offices, .theretofore used prior to the death of Ashley Horne in 1913. Indeed there was evidence that 0. W. Horne had stated that it was the same business and that the whole estate was liable for the operation of the business enterprises. There was also evidence that on the night of 11 February, 1924, J. T. Yinson executor, had an engagement with 0. W. Horne to settle the mutual accounts between his testator, J. A. Yinson, and the Horne Corporation, and the mercantile business of Ashley Horne and Son, and that after the amounts had been determined, Yinson, executor, gave a check in full, which was received by C. W. Horne, and Horne promised to give Yinson a check for the amount due the estate of his testator by Ashley Horne and Son, on the next day. The check was not forthcoming, and shortly thereafter Ashley Horne and Son was adjudicated a bankrupt. In cases of this type the eye of the law sinks deep into the situation and dealings between the parties to discover the heart of the transaction. The law moves along straight lines to ascertain, establish and enforce *64 fundamental justice between men and does not dissipate its energies in fencing witb legal fictions, boxing with, legal shadows, and wrestling with legal puppets. It cannot be said that there is no competent evidence to support the findings of fact made by the trial judge to the effect that there had been a settlement between the parties. Therefore, the findings must stand, and the judgment is approved. Affirmed.