Allsbrook v. . Walston

Stact, C. J. The defendant having pleaded the statute of limitations, the burden was on the plaintiff to show that his suit was commenced within the requisite time from the accrual of the cause of action, or that otherwise it was not barred. Rankin v. Oates, 183 N. C., 517, 112 S. E., 32; Drinkwater v. Tel. Co., 204 N. C., 224, 168 S. E., 410. “Upon the plea of the statute of limitations the burden is upon the plaintiff to show or to offer evidence tending to show that he has brought a live claim to court” — Brogden, J., in Savage v. Currin, 207 N. C., 222, 176 S. E., 569. *227 It is conceded that if the note in suit be a sealed instrument, the ten years statute, C. S., 437, applies, otherwise the three years statute, C. S., 441, is applicable; and further, that if the ten years statute be applicable, the action is not barred, while if the three years statute apply, it is barred. Trust Co. v. Clifton, 203 N. C., 483, 166 S. E., 334. The case, then, comes to a single question: Has the plaintiff offered evidence of a sealed instrument? We think the trial court correctly answered the question in the affirmative. It is true, the note contains no recital of a seal in the body of the instrument, nevertheless the word “Seal” appears in brackets at the end of the line, opposite defendant’s signature, which is the usual place for a seal. In Hughes v. Debnam, 53 N. C., 127, it was said that a seal appearing upon an instrument, opposite the name of the grantor, in the place where the seal belongs, will, in the absence of proof that the grantor intended otherwise, be valid as a.seal. To like effect are the decisions in Devereux v. McMahon, 108 N. C., 134, 12 S. E., 902, and Yarborough v. Monday, 13 N. C., 493; S. c., 14 N. C., 420. See Philip v. Stearns, 20 S. Dak., 220, as reported in 11 Ann. Cas., 1110, and note. Contra: Caputo v. DiLoreto, 110 Conn., 413, 148 Atl., 367. The plaintiff rested his case upon offering evidence of a sealed instrument. There is no proof that the maker intended otherwise. This defeats the motion to nonsuit. Baird v. Reynolds, 99 N. C., 469, 6 S. E., 377; Harrell v. Butler, 92 N. C., 20; Pickens v. Rymer, 90 N. C., 282. The case of Williams v. Turner, 208 N. C., 202, 179 S. E., 806, cited and relied upon by defendant, is not in point. There the court was dealing with a finding upon the record that the maker of the note had no intention at the time of executing a sealed instrument, and that he did not adopt as his seal the word “Seal” appearing in parentheses at the end of the line opposite his signature. Hence, upon the finding, it was declared to be a simple contract. Lynam v. Califer, 64 N. C., 572. Here, there is no such finding. Ins. Co. v. Morehead, 209 N. C., 174, 183 S. E., 606. There, we were not concerned with any question of evidence or the burden of proof. Here, we are concerned with a question of evidence and the burden of proof. There, the note contained no recital respecting a seal, and it was not required by law to be under seal. Here, the note contains no recital respecting a seal and it is not required by law to be under seal. There, the action was between the administrator of the payee and the maker of the note. Here, the action is between the administrator of the payee and the maker of the note. It is obvious, therefore, that with the exception of the two similarities just mentioned, i.e., character of action and absence of recital respecting seal, the two cases are quite dissimilar. They are not alike either in principle or result. The holding there was that an action to recover *228 on a note, found to be not under seal, is barred by the three years statute of limitations, the statute having been pleaded. The holding here is that a note ostensibly under seal is evidence of a sealed instrument. This is as far as we are required to go on the present record. The authorities elsewhere are in hopeless conflict and confusion. Note, 19 Ann. Cas., 674. They abound in every variety of decision. 24 R. C. L., 686; 56 C. J., 889. All agree that “as a man consents to bind himself, so shall he be bound.” Nash v. Royster, 189 N. C., 408, 127 S. E., 356. They differ as to how this consent shall be evidenced or ascertained. Some take the easier way, and declare that the presence of a seal on any instrument raises a conclusive presumption against the executant, and forecloses any further inquiry into his intention. The holding no doubt makes for certainty and has the merit of simplicity, hut the law is supposed to deal with the life of a people. This is neither certain nor simple; it is complex. In North Carolina our predecessors have pursued the ideal of doing exact justice in the particular case. Lynam, v. Califer, supra. This pursuit we continue. The verdict and judgment will be upheld. No error.