Charlotte National Bank v. Mutual Benefit Life Insurance

Connor, J. The defendant on bis appeal to this Court contends that all the evidence at the trial of this action shows that the action was barred by the three-year and also by the ten-year statutes of limitation, and that it was therefore error for the trial court to refuse to allow bis motion at the close of all the evidence for judgment as of nonsuit, and to instruct the jury peremptorily to answer the 6th and 7th issues “No.” These contentions cannot be sustained. This is an action to recover on a policy of insurance issued by the defendant Mutual Benefit Life Insurance Company on the life of John D. Heath. The cause of action alleged in the complaint, and sustained by the evidence at the trial, accrued at the death of the insured, John D. Heath. He died on 3 November, 1933. This action was begun on . January, 1934, and is therefore not barred by either the three-year or the ten-year statutes of limitation. This is not an action to recover of the defendant Joe E. Klutz, administrator of John D. Heath, deceased, on the note which was executed by bis intestate on 24 January, 1916, and which was due one day after its date. It is not contended by the defendant that the note has been paid or otherwise discharged. It is conceded that an action on the note would be barred by the three-year statute of limitations. There is no presumption, however, that the note has been paid or discharged. The statute of limitations, if pleaded by the defendant in an action to recover on the note, would bar a recovery by the plaintiff, but it does not affect the right of the plaintiff in this action, as assignee of the policy, to recover the proceeds of the policy, and to apply the same to the payment of its note. See Capehart v. Dettrick, 91 N. C., 344, which is a conclusive authority in support of the refusal of the trial court to allow defendant’s motion at the close of all the evidence for judgment as of nonsuit, and in support of its peremptory instructions to the jury with respect to the 6th and 7th issues. In that case it is *144 said that there is a clear distinction between the loss of a particular remedy and the extinguishment of a right. This Court quotes with approval the following remark of Lord Eldon in Spears v. Hartley, 3 Esp., 31: “I am clearly of opinion that though the statute of limitations has run against a demand, if the creditor obtains possession of goods on which he has a lien for a general balance, he may hold them for that demand by virtue of his lien.” In the instant case, the plaintiff had possession as assignee of the policy, which had been duly assigned to it by the insured, and is therefore entitled not only to recover of the insurer the proceeds of the policy, but also to hold such proceeds as against the personal representative of the insured. The judgment is affirmed. No error.