CLARK'S CODE OF CIVIL PROCEDURE.

17

visions of this title whenever such judgment becomes itself causa litis. McDonald v. Dickson, 85-248.

A judgment rendered before, though docketed after, the adoption of C. C. P., is not subject to the limitations of this statute, but to a presumption of satisfaction. Johnston v. Jones, 87-393.

A judgment quando (unlike a final judgment) founded upon a right of action that accrued before said date, is not a new cause of action, and hence, a suit upon it is governed by the statute of limitations and the law in force prior thereto. Gaither v. Sain, 91-304.

There was no statute of limitations barring actions upon notes under seal executed, or judgments rendered, prior to 1868. A presumption of payment arose after ten years. Glover v. Flowers, 95-57.

In an action begun under the former practice, in which the judgment was rendered since the adoption of the present system, an application to set aside the judgment as irregular should be made in the same manner as if the action had been commenced since the adoption of the Code of Civil Procedure. Knott v. Taylor, 99-511.

The seven years limitation prescribed by Rev. Code, ch. 65, sec. 11, was applicable only to demands against the debtor in his life-time, but when such claims were reduced to judgment, they became merged therein, and there was no statute of limitation against proceedings for its enforcement, either against the personal or real estate of the decedent. After the expiration of ten years a presumption of payment arose. Lee v. Deaman, I0I-294.

Presumption of payment.-Although when a bond payable to a guardian is endorsed by him to a third party, the endorsee is barred by the lapse of three years, this is not so as to the ward (when the cause of action accrued prior to 1868) who is the beneficial owner of the bond. Usry v. Suit, 91-406.

The statute, Rev. Code, ch. 65, sec. 18, declaring a presumption of payment after ten years, embraced bonds or "single bills as well as promissory notes and other demands therein designated. Rogers v. Clements, 98-180.

Section 18, ch. 65, Rev. Code, was not a statute of limitation, but only raised a presumption of payment, which might be at any time rebutted by proof that the bond had not been paid. Currie v. Clark, 101-320.

To a cause of action for converting an absolute deed into a security, arising prior to the adoption of the existing statutes of limitations, there was no time prescribed as a bar, but the ten years' statute of presumption-Rev. Code, ch. 65, sec. 19-is applicable. Summerlin v. Cowles, 101-473

The statute (Rev. Code, ch. 65, sec. 18) which declares judgments, decrees, etc., shall be presumed to be satisfied within ten years, is not conclusive. In re v. Walker, 107-340.

Rebuttal of presumption.-When a bond, executed by two obligors, is presumed to be paid by the lapse of time, the separate declaration of one of the obligors is not competent to rebut the presumption as to the other, nor even to charge the party making it, unless it is shown that the other had not made payment. Clements v. Rogers, 92-81.

Evidence that the plaintiff asked payment of a debt from the defendant, and that the defendant acknowledged that he owed something, and gave the plaintiff some property to be applied to the debt, which was entered as a credit on the bond sued on, is some evidence, taken with other circumstances, to rebut the presumption of payment from the lapse of time, although there is no evidence that at the time plaintiff was the owner of the bond sued on. White v. Beaman, 96-122.

The admission by one obligor in a bond that the debt has not been

18

CLARK'S CODE OF CIVIL PROCEDURE

paid, will not rebut the presumption of payment in favor of the other obligors; nor will the naked admission of the obligor sought to be charged have that effect, as the presumption of payment by the other obligors still remains. The presumption against the obligor sought to be charged is not rebutted by the recovery of judgment by default against his co-obligor within ten years. Rogers v. Clements, 98-180.

An endorsement by a maker of a promissory note, "January 26, 1884. renewed, T. A. Osborne," is sufficient to rebut the presumption of payment as to a note executed prior to 1868, if he had capacity to understand the nature and consequences of his acts. Morris v. Osborne, 104-609.

In an action against the principal obligor in a bond executed prior to 1868, his admission that neither he nor his surety have paid the bond, is sufficient to rebut the presumption of payment, nothing else appearing. Cartwright v. Kerman, 105-1.

If insolvency of the obligor is relied upon to rebut the presumption of payment arising from the lapse of time, it must be shown to have existed continuously during the entire statutory period. Alston v. Hawkins,

105-3.

Where, in a former action in which the same instrument was in controversy, the administrator of the maker did not deny the allegation that the bond had not been paid, upon the trial of a subsequent action, in which the question of payment was an issue, the record of this admission could be read as evidence to rebut the presumption of payment. Grant v. Gooch, 105–278.

Ordinarily, evidence to rebut the statute of presumptions ought to embrace the whole period. Grant v. Gooch, 105-278.

When there is no administration.-When more than ten years have elapsed since the right of action arose, but during a period of that time there was no personal representative of the creditor who could sue, or of the debtor who could be sued, whether such portion of time must be left out of the computation of time during which the statute was running, quære. Tucker v. Baker, 94-162.

Where a debtor died after the bond was due and the presumption had begun to run, and no administration was had on his estate for some years, the time during which there was no administration must be eliminated, and only the time during which there was a person in esse to sue could be counted in computing the ten years. Long v. Clegg, 94-763.

NOTE. In these cases the cause of action accrued prior to the C. C. P. Where it has accrued since, The Code, sec. 164, applies, which see with decisions there cited.

Administrations. -Prior to the enactment of the statute (now The Code, sec. 1433), there was no statutory bar to proceedings against the heir to subject descended lands to the payment of the ancestor's debts. In this respect the administration of estates before July, 1869, is governed by the law then in force. Glover v. Flowers, 101-134.

The original administration of an estate having been granted before July, 1869, a creditor could bring suit against the personal and real representatives and have an account taken, so that a decree should be rendered against the one or the other as in equity entitled. Wilson v. Pearson,

102-290.

Where an administrator qualified in 1862 and died in 1869, and an administrator de bonis non was appointed in 1886, the estate must be settled according to the law as it stood before July 1st, 1869. Brittain v. Dickson, 104-547.

· CLARK'S CODE OF CIVIL PROCEDURE.

19

Guardian and administration bonds executed prior to C. C. P.-Where an administration bond was executed prior, but the breach assigned is subsequent, to the C. C. P., this chapter applies. Vaughan v. Hines, 87-445. Where the guardian qualified before the C. C. P., and the ward became of age after The Code, the action for non-payment by the guardian is governed by the C. C. P. Briggs v. Smith, 83–306.

Owelty of partition.-A decree in proceedings for partition had in 1861, adjudging owelty of partition against certain shares of the land divided, is subject to the statute of presumptions (Rev. Code, ch. 65, sec. 18), providing that "the presumption of payment, satisfaction of all judg ments, decrees," etc., *** "shall arise within ten years after the right of action shall have accrued." Herman v. Watts, 107-646; In re Walker, 107-340.

Mortgagor and mortgagee.—Where the mortgagor remained in possession over ten years after the condition of the mortgage was broken, there arose a presumption of the payment of said debts, and the legal estate vested in the mortgagor under Rev. Code, ch. 65, sec. 19. berton v. Simmons, 100-316.

Pem

When mortgaged land is not in the actual possession of either mortgagor or mortgagee, the title remains undisturbed as fixed in the deed of mortgage, and the statutory presumption (Rev. Code, ch. 65, sec. 19) does not arise to the prejudice of either. Simmons v. Ballard, 102–105.

Femes covert and infants.—The statute (Rev. Code, ch. 65, secs. 18, 19) was enacted to quiet controversies and prevent the presentation of stale demands, and contains no saving clause or exception in favor of infants or femes covert. Mull v. Walker, 100-46: Hamlin v. Mebane, 54-18; Hodges v. Council, 86-181; Headen v. Womack, 88-468.

While there is no saving provision in favor of women under disability of coverture contained in the statute (Rev. Code, ch. 65, sec. 19) raising a presumption of an abandonment of equitable interests after the lapse of ten years, yet when the period there prescribed is adopted by the courts, in the exercise of their equitable jurisdiction, as the one in which the action must be brought, by analogy to the general statutes of limitations, the time during which such disability existed will not be computed. Summerlin v. Cowles, 101-473

Sec. 137. Time between the 20th of May, 1861, and January, 1st, 1870, not to be counted. 1866-7, c. 17, s. 8. 1873-'4, c. 34, s. 5.

The time between the twentieth day of May, one thousand eight hundred and sixty-one, and the first day of January, one thousand eight hundred and seventy, shall not be counted, so as to bar actions or suits, or to presume satisfaction or abandonment of rights.

NOTE 1.-This section is repealed as to all actions which shall not be instituted before January 1, 1893. Chapter 113, Acts 1891.

NOTE 2. The following probably should be inserted as a new section (137) by substitution:

20

CLARK'S CODE OF CIVIL PROCEDURE.

An act to compel personal representatives to plead the statutes of limitations. Chapters 92 and 356, 1891.

It shall be the duty of personal representatives to plead the bar of the statutes of limitations as a defence to all actions against them in their representative capacity when such defence may be available, except when the claimant has foreborne to sue at the instance of the administrator or the executor and for the benefit of the estate, and if the personal representative shall fail in good faith to insist. upon such defence then the heirs or devisees shall have, in any proceedings to subject the lands of a devisor or decedent to make assets, the right to plead that the action was barred when judgment was entered against the executor or administrator; and if it be found that the action was barred when the judgment was so rendered against such personal representative, license shall not be granted to sell the land belonging to the estate to satisfy such claim only, nor shall any part of the proceeds of the sale of the land be applied to the satisfaction of such claim: Provided, that in any case if the heirs at law or distributees of any estate or their legal representatives shall concur, then the administrator may not plead the statutory bar if they shall believe that the debt or claim is bona fide and just. This act shall not apply to any action now pending, or debt or claim on which suit shall be brought on or before January the first, eighteen hundred and ninety-two.

The suspension applies.-The time between May 20th, 1861, and January 1st, 1870, is not to be counted in ascertaining the period necessary to have elapsed in order to bar an action. Johnson v. Winslow, 63-552; Howell v. Buie, 64-446; Plott v. Railroad Co., 65-74; Smith v. Rogers, 65-181; Williams v. Williams, 70-189; Faison v. Bowden, 74-43; Edwards v. Jarvis, 74-315; Hawkins v. Savage, 75–133; Lippard v. Troutman, 72– 551; Bruner v. Threadgill, 88-361; Badger v. Daniel, 79-372; Johnson v. Parker, 79-475.

To prevent an action abating by the death of either party. Morris v. Avery, 61-238.

To give widows further time for dissenting. Hinton v. Hinton, 61–410. To the presumption of a grant by twenty years' possession of an easement. Benbow v. Robbins, 71-338.

CLARK'S CODE OF CIVIL PROCEDURE.

21

To the presumption of title from seven years' adverse possession of land under color. Melvin v. Waddell, 75-361; Kitchen v. Wilson, So191; Johnson v. Parker, 79-475; Logan v. Fitzgerald, 87-308.

Where a single bond was executed in 1860, and more than ten years, exclusive of time between May, 1861, and January, 1870, had elapsed before the bringing of an action upon it, there is a presumption of payment or satisfaction thereof. Grant v. Gooch, 105-278.

The suspension of the statute does not apply.-To actions on contracts where the contract was made since May 1, 1865. This doctrine is intimated in Lippard v. Troutman, 72-551, and decided in Edwards v. Jarvis, 74-315; Hawkins v. Savage, 75-133; Lane v. Richardson, 79-159; Pearsall v. Kenan, 79-472; Austin v. Dawson, 75-523; Cannon v. Morris. 81-139.

Nor to prevent judgments becoming dormant. Neeley v. Craige, 61-187.

Defendants entered into adverse possession of land in 1856, in the life-time of plaintiffs' ancestor, and held such possession up to the commencement of this action, in 1887. Plaintiffs' ancestor died in 1862, at which time plaintiffs were under disabilities, and they have remained under disabilities all the time: Held, that plaintiffs are barred by the statute. The suspension of the statute from May, 1861, to January, 1870, does not place plaintiffs on the same footing as if the statute had been repealed in 1861, and therefore, only commenced to run in 1870, after the death of their ancestor and while they were under disabilities; but plaintiffs stand in the same position as would their ancestor, if living. Chancey v. Powell, 103-159.

The statute of 1869-70.-The statute of 1869-'70 suspending the statute of limitations till the falling in of the reversionary estate in the land embraced by the homestead, applies only where the homestead has been actually allotted, and only to judgments docketed in the county where the homestead is situate. McDonald v. Dickson, 85-248; Cotton v. McClenahan, 85-254.

Legislative power. -The Legislature can repeal the effect of the statute of limitations before it operates, and probably even after. Pearsall v. Kenan, 79-472. Compare Taylor v. Harrison, 31-374, and Phillips v. Cameron, 48-390.

The Legislature can repeal the statute of limitations before it becomes a bar but not afterwards. Whitehurst v. Dey, 90-542.

Sec. 138. Period of limitation—objection must be taken by answer. C. C. P., s. 17..

Civil actions can only be commenced within the periods. prescribed in this title, after the cause of action shall have accrued, except where in special cases a different limitation. is prescribed by statute. But the objection that the action was not commenced within the time limited, can only be taken by answer.

Objection must be taken by answer.-Pegram v. Stoltz, 67-144; Privett v. Calloway, 75-233; Green v. Railroad Co., 73-524; Kahnweiler v. Anderson, 78-133; Long v. Bank, 81-41; Andres v. Powell, 97–155.