McDonald v. . Dickson , 87 N.C. 404 ( 1882 )

We are asked to re-consider the decision rendered in this cause at October Session, 1881, (85 N.C. 248) and our attention is called to the effect of the partial payment made on May 9th, 1871, and within the ten years preceding the application for leave to issue execution, in removing the bar of the statute of limitations relied on as a defence.

Under the former system, there was no period prescribed within which actions must be brought on judgments rendered, except those before a justice of the peace, or on scaled obligations other than official bonds, and the lapse of time only raised a presumption of payment, shortened by statute to ten years after the cause of action accrued, and this was open to disproof before the jury. Consequently a recognition of the debt, as subsisting, by making a payment upon it, a most unequivocal acknowledgment of the obligation, was held to rebut the presumption of payment and entitle the plaintiff to recover.

Judgments and contracts under seal under the superseding statute are now subject to limitations, and actions to enforce them must (406) be brought, as in the enforcement of other causes of action, within a fixed period, or the remedy meets the bar.

There is therefore no analogy which makes the decisions under the former precedents applicable to the present law, inasmuch as they relate entirely to rules of evidence and not to the removal of a statutory bar where the action is upon a bond or judgment. A payment of part of a debt resting upon a promise has the same effect in continuing or reviving it, as a new promise itself; and the very act is deemed a promise to pay the residue. Its effect is to revive and continue in force the antecedent liability when the promise is of the same nature as that to be revived, and the declaration is upon the original cause of action, the plea of the statute being neutralized and put out of the way the new acknowledgment.

"Nothing is plainer," remarks RUFFIN, C. J., "than that making a payment on a note repels the statute. It is assuming the balance anew." Walton v.Robinson, 27 N.C. 341. And a promise after suit brought repels the statute and sustains the action, as is decided in Falls v. Sherrill, 19 N.C. 371. The subject has been so recently considered that it is needless to pursue the discussion further. Hewlett v. Schenck, 82 N.C. 234; Green v.Greensboro College, 83 N.C. 449.

In enacting the substituted statute which after a fixed time bars the cause of action itself, and does not, as before, obstruct the remedy merely, it is provided (C. C. P., Sec. 51) that "no acknowledgment or promise shall be received as evidence of a new continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing, signed by the party to be charged thereby. But this section shall not alter the effect of any payment of principal on interest." The section confines the new written acknowledgment or promise to actions on contract, and its force is spent in removal th bar and permitting a recovery on the cause of (407) action to which the defence is set up, and the concluding clause is but a qualification of what precedes, by dispensing with a writing when a payment is made, and imparting to that act the legal effect of a written promise. It is to be understood as declaring that an acknowledgment or promise in writing signed, or an actual payment by the party sued, shall be received as evidence of a new or continuing contract; and when the new promise, positive or implied, is not itself the cause of action, but is used to prove and support that to which it relates, and which would otherwise be barred, it must be confined to such as arise out of contract and none others.

The sole remaining inquiry then is, whether in the sense of the act a judgment can be deemed a contract and sued on as such, whether recovered upon a contract or for a tort.

There have been several adjudications that an action for a penalty, being in the former pleading classed with actions ex contractu as distinguished from those ex delicto, may be maintained before a justice of the peace, whose jurisdiction was restrained under the constitution to actions on contract, until amended, and then to a limited amount. Town ofEdenton v. Wool, 65 N.C. 379; Katzenstein v. R. G. R. R. Co., 84 N.C. 688.

These adjudications do not determine the sense in which the word used in the statute is intended to be understood, and we think a cause of action on contract or tort loses its identity when merged in a judgment, and thereafter a new cause of action arises out of the judgment whenever it becomes necessary to enforce the obligation by suit. The liability of the debtor no longer rests upon his voluntary agreement, but upon the adjudication of the court into which the former has passed; and while the indebtedness thus established, when the enforcement of the judgment is obstructed by the statutory bar, may constitute the consideration of a subsequent promise as a new (408) cause of action, the promise itself cannot remove the legal consequences of the lapse of time upon the judgment itself.

The distinction between judgments and contracts as separate and independent causes of action, to which different periods of limitation are assigned, is marked and manifest throughout the present, as it was in the former acts of limitation. Thus the period of ten years is fixed within which actions must be brought on judgments other than those of a justice of the peace, and seven years for the latter; and again, leave must be obtained upon the first class of judgments before the action can be begun; while varying times are prescribed within which suit must be brought upon the different forms of contract, and against different parties liable thereon.

But the very point came before the supreme court of Kentucky and was determined in Dudley v. Lindsey, B. Mon., 486. There, an action of debt was brought on a judgment recovered in the circuit court of the United States in the state of Mississippi, to which was pleaded nul tiel record and the statute of limitations. The plaintiff demurred to the latter plea. The statute on which the defendant relied, declares "that all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within five years," and it was contended that a debt due by judgment is founded upon contract, and that, as the statute contains a single exception and that in the case of specialties, the limitation applies to all other contracts, embracing a debt due by judgment. The court says: "A judgment for money is not strictly a contract, but it imposes a civil liability and is more conclusive evidence of indebtedness than a contract by specialty; and therefore an action upon it is not embraced by the statute of limitations."

A judgment is not an agreement, contract or promise in writing, (409) nor is it in a legal sense a specialty. Therefore the action on it is not within 21 James I, and similar enactments in the states. 7 Wait Actions and Defences, 253.

As then an unequivocal acknowledgment or promise in writing will not remove the statutory obstruction to the enforcement of a judgment by a new action, because it is not a contract within the meaning of the act, nor can a partial payment which implies such promise have greater effect than an express promise, the present proceeding whose purpose is to obtain an order for leave to issue execution upon the dormant judgment, must also be ineffectual. The case is one referring solely to a defence under the statute of limitations, not one raising a presumption capable of being rebutted, and therefore must be decided upon the principles involved in former adjudications. We must therefore affirm the judgment, and it is so ordered.