Rodman v. . Stillman

*365 DEFENDANTS’ APPEAL. Winborne, J. This is the sole question presented on this appeal: Where a judgment debtor dies within ten years after the rendition of the judgment, and administrator, who is appointed within ten years of the death of such debtor, knowing that his appointment to administer the estate is at the instance and solicitation of the judgment creditors so that creditors might make collection, and with memorandum of the judgment in hand, immediately investigates and ascertains that the judgment has not been paid and admits it as a debt against the estate, and then within one year after his appointment institutes a proceeding to sell land of intestate to make assets to pay debts of the estate, specifically including the judgment, is the claim filed and admitted within the meaning of the statute, C. S., 412, so as to prevent bar by the statute of limitations ? The decisions of this Court support an affirmative answer. See Woodlief v. Bragg, 108 N. C., 571, 13 S. E., 211; Harris v. Davenport, 132 N. C., 697, 44 S. E., 406; and also Turner v. Shuffler, 108 N. C., 642, 13 S. E., 243; 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; Horne Corp. v. Creech, 205 N. C., 55, 169 S. E., 794. In this connection it is provided by statute that an action “upon a judgment or decree of any court of the United States, or of any State or territory thereof,” may be commenced within ten years- “from the date of its rendition . . .” C. S., 437 (1), formerly Eevisal, 391; Code, 152; C. C. P., sec. 14, and it has been uniformly held in this State that a cause of action on a judgment accrues from the date of its rendition. McDonald v. Dickson, 85 N. C., 248. On the other hand, it is also provided by statute that, “If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative after the expiration of that time, and within one year after the issuing of letter testamentary or of administration, provided the letters are issued within ten years after the death of such person.” C. S., 412, formerly Revisal, 367; Code, 164; C. C. P., 43. And the same statute further provides that, “If the claim upon which the cause of action is based is filed with the personal representative within the time above specified, and admitted by him, it is not necessary to bring an action upon such claim to prevent it being barred . . .” While in Woodlief v. Bragg, supra, it is not expressly found that the administrator admitted the claim, Clark, J., after quoting pertinent portions of the statute, Code, 164 (now C. S., 412), states: “We do not hold that reception of claim by the administrator, without objection, is per se an admission of its correctness, but here not only the claim was filed in *366 proper time and no objection was made, but the administrator files the petition to obtain assets to pay it. This is strong proof that he did not deny its correctness but ‘admitted’ it — certainly it is so in the absence of any proof whatever to the contrary.” In Harris v. Davenport, supra, in opinion by Montgomery, J., this Court said: “The action of the administrator creditor in commencing the proceeding to sell the land of the intestate to pay his debts was equivalent to the filing with himself of his claim and his admitting the same to he due, and falls under the provisions of section 164 of The Code. In such a case the statute of limitations ceases to run either in favor of the personal representative or the heirs at law.” In Horne Corp. v. Creech, supra, it is said that, “A claimant cannot compel an administrator ‘to string the claims,’ but if the validity of the claim'is expressly recognized or admitted, this will constitute a filing.” To same effect is Stonestreet v. Frost, supra. Notice to the personal representative is the prime purpose of the statute. Hinton v. Pritchard, supra. In fact, it is noted that counsel for defendants, in contending that the statute, C. S., 412, does not apply to claims based on judgments, say: “It was not necessary to file the judgment with him as a claim for the reason that its status had already been fixed and determined by the judgment of the court, and we respectfully insist that the mere fact that he has attempted to recognize it in his petition filed in this proceeding does not and cannot change the law.” There is force in the argument as to there being no necessity of filing claim based on a judgment. Rut, as this Court holds that the statute relates to claims on judgments, Stonestreet v. Frost, supra, the reasoning rather supports the contention of petitioner that there has been sufficient filing. The judgment below is Affirmed. PlaiNtiff’s Appeal. Holding as we do on defendants’ appeal that, upon the facts presented, the judgment of Clyde McCallum and E. Leigh Winslow, partners trading as Plymouth Wholesale Company, against J. A. Stillman is a valid claim against the estate entitled to be paid out of the proceeds of sale of land ordered in this proceeding to be sold for purpose of creating assets with which to pay debts of J. A. Stillman, and the order of payment being provided by statute, O. S., 93, and no question as to priorities being presented, the question of lien has become moot in so fay as parties to this proceeding are concerned. Hence, the petitioner’s appeal is Dismissed.