Perry v. First-Citizens Bank & Trust Co.

BaRNhill, J. For the purpose of proving the open accounts pleaded in defense, the defendants offered the merchandise ledger or book of accounts kept by the deceased. There was no other evidence to sustain a finding that these amounts are owing. While plaintiff did not object to the evidence he does except to the finding of fact that the amounts shown on this ledger as being charged to the plaintiff are in fact due and unpaid. A finding of fact by the court below, when trial by jury has been waived, is binding on this Court when, and only when, such finding is supported by competent legal evidence. It is to be doubted that the ledger sheets or accounts offered in evidence and admitted without objection constitute legal evidence of the charges therein disclosed. The amounts claimed, with one exception, exceed $60.00, and there was no attempt to comply with the provisions of C. S., 1786 and 1781. Be that as it may, we refrain from decision on that point and pass to the question which is decisive. When a distributee sues to recover his distributive share of the estate and the administrator pleads by way of offset, under his alleged right of retainer, debts due by the distributee to the estate, is the plea of the statutes of limitations available to the plaintiff? On this question the courts are sharply divided. Anno. 1 A. L. R., 1007; Anno. 16 A. L. R., 329, 341; Anno. 73 A. L. R., 582. In many courts it is held that a demand of a -defendant, whether pleaded by way of setoff, counterclaim, or cross bill, is regarded as an affirmative action, and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations, and is unavailable if barred. 16 A. L. R., 328. Other courts hold contra. In most, if not all, the jurisdictions in which it is held that a barred claim is available as an offset, the courts base their decisions upon some provision of a local statute. Anno. 16 A. L. R., 331. The decisions cited and relied on by the defendant come principally from these States. As, on this point, this is a case of first impression in this jurisdiction, we must decide the question unaided by any uniform line of decisions, choosing the course which the better reason seems to dictate. *644 Had defendant elected to plead the debt of plaintiff (which he denies) as a counterclaim or by way of cross action and prayed judgment for the full amount, his claim would be barred. This would seem to be clear. His plea here is in effect a plea of setoff. He seeks to establish the debt and to recover so much thereof as may be necessary to cancel the claim of the plaintiff. This is an affirmative defense, under which defendant seeks affirmative relief. There is no sound reason why we should say that this demand for part recovery is not equally subject to the plea of the statute. The doctrine of equitable setoff does not apply. Defendant asserts a legal claim. The estate is just-as much a debtor to him as he is to the estate. Each has a legal right and remedy. And a statute-barred debt is no more recoverable by an estate than by any other creditor. In many instances, as here, such claims are covered by the dust of time and forgotten, although found by the administrator after the death of his intestate. Furthermore, the right of action of the deceased was barred during his lifetime and long before plaintiff’s cause of action arose. Under these circumstances and in the face of a proper plea of the statute, it is not now available either as a counterclaim or as a setoff. It may be true, as urged by defendant, that to allow plaintiff to recover his full distributive share of the estate while denying the estate the right to deduct his indebtedness would be an injustice to the other heirs and distributees. If so, the injustice ivas not worked by the law but by the failure of the deceased to collect or attempt to collect his debt before it was barred by the statute, or to put it in such form as that its life would have been extended. If the plaintiff has not paid the claim, as he contends he has and as the law presumes, the deceased no doubt considered it so much water over the dam. At least he took no action to make it otherwise. Such loss as the other distributees may suffer is due to his neglect. The exception of the plaintiff to the conclusion of the court below that the plea of the statutes of limitations is not available to him is well taken. The judgment of the court below is Eeversed.