Opinion · Supreme Court of North Carolina
Donoho v. . Patterson
70 N.C. 649
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1874-01-05
- Topic
- general
RodmaN, J. The material facts are: Willie Jones died in 1861. At April Term, 1861, of the County-Court of Caswell, Walter Jones, who was his' only heir, became his administrator. Walter duly administered the personal estate and after- *654 wards left the State. He was duly removed from tbe admin-istratorship and the plaintiff appointed administrator de bonis non.
Citator
UpLaw has not yet analyzed Donoho v. . Patterson. The absence of a flag is not a finding that it is good law.
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DONOHOv. PATTERSON,70 N.C. 649(1874)
THOS. A. DONOHO, ADM'R.de bonis nonof WILLIE JONES v.
DAVID PATTERSON AND OTHERS.
Supreme Court of North Carolina
(January Term, 1874.)
The jury having found the issues submitted to them in favor of the plaintiff, his Honor gave judgment condemning the land to be sold for the payment of the admitted debts. From this judgment the defendants appealed.
II. Does notLatham v. Bell,69 N.C. 135, andBadger v. Jones,66 N.C. 305, cover this case; and can the administratorde bonis nonproceed without suit upon the former bond. Did not the former bond cover real estate, Revised Code, chap. 46, section 52.
Second extra session, (laws Statute of Limitation,) September 11th, 1861, chap. 4, sec. 17.
(651) Session 1862-'3, (laws Statute of Limitation,) February 10th, 1863, chap. 34, sec. 1.
Session 1865-'6, (laws Statute of Limitation,) February 21st, 1866, chap. 50, sec. 1.
Ordinance, Session of 1865-'6, (laws Statute of Limitation,) June 23d 1866, chap. 19, sec. 20.
Session 1866-'7, (laws Statute of Limitation,) February 12th, chap. 17, sec. 8.
Other suspendatory acts cited as being inpari materiaand parts of a "family" of statutes. The various "stay-laws" extending time for various purposes.
Session 1862-'3, (perfecting entries,) 1863, chap. 20, sec.1-2.
Second extra session, (mortgager's right,) 1861, chap. 31, sec. 1.
Second extra session, 1861, (executors and administrators,) 1861, chap. 4, sec. 20.
Session 1865-'6, (executors and administrators) 1866, chap. 17, sec. 11.
Session 1865-'6, (widow's dissent,) 1866, chap. 53, secs.1-2.
Ordinance, Session of 1865-'6, (widow's dissent,) 1866, chap. 37, secs.1-2.
And argued: 1st, that the true criterion as to whether resort shall be first had on the administration bond, we submit, is, did personal assets come to the hands of the administrator which he ought to, and could have applied.Badger v. Jones,66 N.C. 305;Pullen v. Hutchins,67 N.C. 428;Hinton v. Whitehurst,68 N.C. 316.
That circumstance is negatived by the verdict.
As to the argument of Mr. Graham, that the proceeds of the privatePage 525sale, made by the administrator, constituted assets and is covered by his bond, we submit:
(1.) That it has been decided that real estate does not constitute assets.Fike v. Green,64 N.C. 664;
(2.) That the sale was not made by Walter Jones,quaadministrator, for he could only in that capacity sell, pursuant to the act of 1846, butquaheirs are; (652)
(3.) That the bond only covers the assets received by a salequaadministrator pursuant to the act, is a judicial sale.
II. (1.) The main defence is that the heir sold within two years.
It should be observed that there is no saving tobona fidepurchasers, even in the Revised Code or act of 1846. They were expressly protected by the act of 1789, chap. 311, sec. 3, also by Revised Statutes, chap. 63, sec. 16, and the act of 1868-'69, chap. 113, sec. 105. The former acts are replaced by the general provisions in that regard in the Revised Code. When a pertinent provision of a former law is omitted from a revisal thereof, may we not fairly arguesuppressio est exclusio?
The general scope of the legislation is to secure to the creditors a secondary fund, not on the one hand by treating the land as assets, nor on the other by construing the descent case as conferring a fulljus disponendi, but rather in analogy to the case ofDoe on the demise ofBaird, v. Hall,63 N.C. 39, as being incustodia legis.
(2.) We also submit, that the sale in 1862 is within the purview of the act. It is a fundamental rule in the construction of statutes, that every word is to be weighed and value given to it if possible. The words in the Revised Code are "sales, conveyances or alienations." Now, in the first act, 1789, chap. 311, sec. 3, the only word used in this connection is "alien," it being a well settled rule that a word of well-known signification at common law shall, when used in a statute, bear the same meaning in the statute, we find that this word "alien" imported an executed transfer of title. Had the word "sale," in the Revised Code, been alone employed it might fairly have been contended that it was substitutionary, but when used in addition, we submit, that it evinces an intention of the later Legislature to extend the idea, otherwise, it is mere surplusage, and no value is given to it.
But we further submit, that the two years specified in the Revised Code is a complete analogy to the three years adverse possession of personal property, or the seven or twenty years of realty with (653) color. It comes within the reason and spirit of the suspendatory acts, a schedule of which accompanies this brief. The legislation touching the suspension of statutes making the lapse of time affect rights, was philosophic in its character — remedial statutes necessitatedPage 526by the condition of things — and our case comes as fully within the mischief sought to be remedied as any other strictly within its letter.
The penalty denounced against the shedding of blood in the streets is not applicable to the surgeon who opened the vein of one who had fallen down in the street in a fainting fit.
The sick man, who in a storm could not leave his berth, after the ship rides safely into port, shall not be adjudged the cargo, though by the letter of the law it is given to them who in a storm, remain on shipboard.
They, in each case, come within the letter, but are out of the spirit of the law.
So, conversely, our case is within the mischief, if not within the very letter of these remedial acts.Qui haeret in litora, haeret in cortice.
Mr. Graham contends that the act of February, 1863, impairs the obligation of the contract. To this we reply, that our citizens had then thrown off their allegiance to the Constitution — were rebels,flagrante bello;that strictly speaking, as a legal consequence of rebellion, constitutional legislation, except to preserve life and order, was at an end, and all the laws invoked by him and ourselves has to be validated by apost-bellumordinance. Ordinances 1866, chap. 10, and that ordinance in validating one, validates all.
The defence is, that some time in 1862, Walter Jones and his mother, Priscilla, who was entitled to dower, agreed to sell one of the pieces of land to Thomas L. Lea, who then paid him its full value, and as the defendant allege,bona fide, and without notice that any debts of Willie Jones were unpaid. In January, 1864, Walter and Priscilla executed a deed of conveyance to said Lea. Some of the defendants are the heirs of Lea, and are in possession of that land.
The other defendant, Patterson, in like manner, in 1862, agreed to purchase from Walter and Priscilla, the lot in Milton, and paid to Walter its full value. He alleges that the agreement was madebona fide, and without notice of any unpaid debts of Willie Jones. InPage 527October, 1863, Walter and Priscilla executed to him a conveyance for the lot.
1. The question is, are these conveyances valid against the creditors of Willie Jones?
The Revised Code, chap. 46, sec. 61, says: "All sales, conveyances or alienations of any lands of a deceased debtor, made by any devise or heir-at-law, within two years after probate of his will and qualification of the executor, or letters of administration on his estate, shall be void as to the creditors, executors and administrators of such deceased debtor."
It is urged for the plaintiff, that the egreement [agreement] for a sale, and the payment of the price in 1862 was equivalent to an executed conveyance, and was therefore fraudulent and void as against him. We concede that. But we think the conveyances executed after the expiration of the two years are not vitiated by the prior invalid agreements. The statute imposed a restriction on the heir. He might sell within the time, but the purchaser would be defeated if creditors appeared. The law requires estates to be settled up in two years, and creditors who keep back their claim beyond that time, are in laches. Purchasers are entitled to infer that all debts have been paid, and there (655) is no longer any restriction on the power of the heir to sell. Putting the agreements of 1862 aside as non existent as to creditors, the subsequent sales were valid, unless the plaintiff can maintain his other grounds of exception.
2. It is further urged that the act cited, (Rev. Code, chap. 46,) was a statute of limitations which was suspended by the act of 1861, chap. 4, sec. 18, ratified September 11th. That section is in these words: "That the operation ofthe statute of limitationsbe, and the same is hereby suspended so long as this act remains in force."
Now what is meant by"thestatute of limitations?" There is but one chapter in the Revised Code entitled "limitations," chapter 65. It is confined to prescribing within what times actions shall be brought. It does not contain the enactment making sales by heirs within two years, void as to the creditors of their ancestor, Rev. Code, chap. 46. All the sections of the act of 1861, preceding section 18, relate to the bringing of actions. For these reasons we are of opinion, that the act of 1861 does not apply in the case before us, but is confined to such statutes as limit the time for bringing actions.
3. This brings us to consider the effect of the act ratified February 1863, (acts 1863, ch. 34.) The words, so far as they are material, are as follows: "That in the computations of time for the purpose ofPage 528applyinganystatute, limiting any action or suit,or any right orfor the purpose of raising a presumption, c., the time elapsed since the 20th day of May, which was in the year 1861, or which may elapse until the end of the present war, shall be excluded from such computation."
InHinton v. Hinton,61 N.C. 410, this act was held to cover the act (Rev. Code, chap. 118, sec. 1. 1) by which widows were limited to six months after probate of the husband's will, within which to dissent therefrom, and the plaintiff was allowed to have the benefit of a dissent made after that time.
InNeely v. Craige,61 N.C. 187, it was held that the act of 1863 did not prevent a judgment from becoming dormant upon a failure (656) to sue out execution within a year and a day.
InMorris v. Avery, Id. 238, it was held that the act prolonged the time for reviving an action.
All of these cases profess to go on the ground that the object of the act was to preserve existing rights, and not to give new ones.
The distinction between the case of a widow and that of an heir, is this. Chapter 118, Revised Code, says she shall not dissent after six months; that is, in effect, that she may dissent within that time. In effect it confers or securesa right, and the act of 1863 preserved and continued that right. Chapter 46, Revised Code, says the heir shall not sell within two years. To give the act of 1863 the construction contended for by the plaintiff, would preserve and continue adisability. We think this is a distinction of substance and in principle, and not in terms only, and that the act was not intended to reach the case of an heir.
No injury is done to the creditors of the deceased, nor are they deprived by this construction, of any right. There was no act staying them in sueing the administrator, and if from dilatory legislation, or any cause other than their own laches, they had been unable to get a judgment against the administrator within two years, there can be no doubt that a Court of equity in some way, (it is needless to consider how,) would have preserved their rights against the land. But they made no effort until the rights of the defendants had vested.
It is perhaps proper to say that nothing in this opinion is intended to touch upon the liability of the sureties to the administration bond. Neither they, nor their rights, are before us.
Judgment reversed, and case remanded to be proceeded in, c.
PER CURIAM. Judgment reversed.Renan v. Banks,83 N.C. 485;Orrender v. Call,101 N.C. 403.Page 529