Johnston v. . Jones , 87 N.C. 393 ( 1882 )

The competency of the plaintiff, Johnston, to testify at all in the matter since the act of 1879, ch. 183, amending section 343 of the Code, seems doubtful, to say the least of it. But the point does not appear to have been taken before either the clerk or the judge, and of course we cannot now entertain it.

(395) Taking his affidavit to be evidence, it certainly supports the finding that the judgment had not been entirely satisfied, and this was all that was needed to justify the leave given to issue execution.

This judgment having been rendered before the adoption of the Code in 1868, is subject only to a presumption of satisfaction under the act of 1826, and not to the statute of limitation as prescribed in the Code.

There is a plain distinction between this and the case of Pasour v.Rhyne, 82 N.C. 149, consisting in the fact that there, the defendant in the execution had been declared a bankrupt, and thereby wholly discharged from the debt, except in so far as it had become a lien upon his lands before going into bankruptcy. This, the plaintiff sought to establish; first, by showing an actual levy of fi. fa. before the Code; and secondly, by virtue of the lien of a judgment docketed under the Code. The court held that neither could avail him; the one, because the levy had been destroyed by issuing an alias fi. fa.; and the other, because the lien acquired by docketing the judgment expired at the end of the ten years. This is all that case decides, and there is nowhere an intimation in it that a judgment obtained in 1867, becomes subject to the statute of limitations, because of its being docketed after the adoption of the Code.

We can perceive no error committed in the court below, and the judgment is therefore affirmed. Let this be certified.

No error. Affirmed. Cited; Lee v. Beaman, 101 N.C. 298; Smith, Ex Parte, 134 N.C. 502

(396)