Jennings v. . Morehead City

Devin, J. The judgment of nonsuit entered below was based on the ground that plaintiff’s evidence showed the action was barred by the ten-year statute of limitations. Two questions are presented by the appeal: (1) Has defendant sufficiently alleged the bar of the statute of limitations? (2) If so, is action on the coupons offered in evidence barred by the statute ? 1. While the defendant in pleading the ten-year statute of limitations as a bar to plaintiff’s action refers to section 1-46 of the General Statutes, it will be noted that this section is the general statute relative to the periods prescribed for the commencement of actions other than for the recovery of real property, “as set forth in this article,” and immediately following is the specific provision prescribing the period of ten years with respect to an action upon a sealed instrument, and the statute prescribing the period of ten years after the cause of action has accrued within which an action for relief not otherwise provided for must be commenced. G. S., 1-47 (2); G. S., 1-56. We think the defendant has sufficiently pleaded that plaintiff’s cause of action accrued more than ten years before the commencement of his action, and that his action is barred by the statute of limitations. *608 2. The statute of limitations having been sufficiently pleaded, the burden of proof was upon the plaintiff to show that his action was commenced within the time permitted by the statute. Sprinkle v. Sprinkle, 159 N. C., 81, 74 S. E., 739. This he has failed to do, and defendant’s motion for judgment of nonsuit was properly allowed. The coupons sued on were negotiable in form, payable to bearer 1 April and 1 October, 1932 and 1933, and the statute of limitations began to run against them from their respective dates of maturity. Upon nonpayment at maturity of each coupon the holder had a complete cause of action. Amy v. Dubuque, 98 U. S., 470; Koshkonong v. Burton, 104 U. S., 668; Threadgill v. Commissioners, 116 N. C., 616, 21 S. E., 425; Broadfoot v. Fayetteville, 124 N. C., 478 (494); Hidalgo County v. Jackson, 119 F. (2d), 108; State v. Rorabeck, 108 P. (2d), 601; Dickerson v. Railroad Co., 103 N. J. L., 175; 62 A. L. R., 270 (Annotation) ; McIntosh, 148. The plaintiff’s contention that the coupons, having been originally attached to municipal bonds and representing interest obligations thereon, were incident to the principal obligation of the bond and were valid during the life of the bond, is untenable on this record. According to the plaintiff’s evidence the bonds to which the coupons in suit were originally attached were sold by the plaintiff and these bonds were subsequently surrendered and canceled. The coupons sued on were presumably detached and retained by the plaintiff when the bonds were sold. They became separate and distinct obligations due and payable in April and October, 1932, and April, 1933, and were barred after the lapse of ten years from those dates. The case of Knight v. Braswell, 70 N. C., 709, cited by plaintiff, related to the interest charge “payable annually” incorporated in the body of a note. The obiter reference to coupons was based on two decisions of the Supreme Court of the United States which were later distinguished in Amy v. Dubuque, supra. The ruling below was in accord with well considered decisions in this and other jurisdictions. The judgment of nonsuit is Affirmed.