Lee v. Chamblee, 223 N.C. 146 (1943)

May 5, 1943 · Supreme Court of North Carolina

223 N.C. 146

H. J. LEE v. M. W. CHAMBLEE.

(Filed 5 May, 1943.)

1. Trial § 22b: Bills and Notes § 27—

In a suit on a note, which appears to be under seal with defendant and another as joint makers or joint obligors, plaintiff makes out a prima facie case by offering the note, and motion for nonsuit should have been denied.

2. Limitation of Actions § 16—

The plea of the statute of limitations casts upon plaintiff the burden of showing that the suit was commenced within the requisite time from the accrual of the cause of action, or that otherwise it is not barred.

3. Limitation of Actions §§ 2a, 2e, 16—

Where plaintiff offered in evidence a note, apparently executed by defendant and another as joint obligors, with the word “seal” in brackets opposite the name of each, nothing else appearing, this would repel the three-year statute of limitations, O. S., 441, as sealed instruments against principals are not barred until lapse of ten years. C. S., 437.

4. Bills and Notes §§ 23, 26: Principal and Surety § 1754 —

It is permissible to show by evidence aliunde that one, ostensibly a joint promisor or obligor, is in fact a surety.

5. Limitation of Actions § 2e—

The three-year statute of limitations, C. S., 441, is applicable to sureties on seal instruments as well as on instruments not under seal.

Appeal by plaintiff from Burney, J., at February Term, 1943, of Waee.

Civil action to recover on promissory note.

Plaintiff alleges and offered evidence tending to show that she is the owner and in possession of a $5,000.00 promissory note, dated 30 November, 1931, due and payable to Tbe Commercial National Bank, or order, thirty days thereafter, ostensibly under seal and signed by C. H. Oham-blee and the defendant, M. "W. Chamblee, apparently as joint promisors.

The defendant alleges that he signed the note in suit without any consideration as to him and solely “as an accommodation surety,” all to tbe knowledge of tbe agents of tbe payee at tbe time of its execution; and further, tbat there was no adoption of tbe word “Seal” set opposite the name of tbe maker, C. H. Cbamblee, and tbe defendant who signed only as surety. The note contains no recital of a seal. Tbe defendant pleads tbe three-year statute of limitations. C. S., 441. This action was instituted 29 December, 1941.

From judgment of nonsuit entered at tbe close of plaintiff’s evidence, she appeals, assigning errors.

J., M. Templeton and Simms & Simms for plaintiff, appellant.

Bunn ■& Arendell for defendant, appellee.

Stacy, C. J.

Tbe plaintiff rested her case upon offering tbe note,

which appears to be under seal, with tbe defendant and another as joint makers or joint obligors. This was sufficient to defeat tbe motion for nonsuit. Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151, and cases cited.

True, the plea of the statute of limitations cast upon the plaintiff tbe burden of showing tbat her suit was commenced within tbe requisite time from tbe accrual of tbe cause of action, or tbat otherwise it was not barred. Drinlcwater v. Tel. Co., 204 N. C., 224, 168 S. E., 410; Savage v. Gurrin, 207 N. C., 222, 176 S. E., 569. Tbe plaintiff offered in evidence a note apparently executed by tbe defendant and another as joint obligors, with tbe word “Seal” in brackets opposite tbe name of each ostensible maker. Nothing else appearing, this would repel tbe three-year statute of limitations, C. S., 441, as sealed instruments against tbe principals thereto are not barred until tbe lapse of ten years. C. S., 437; Gurrin v. Gurrin, 219 N. C., 815, 15 S. E. (2d), 279.

It is permissible to show by evidence aliunde tbat one, ostensibly a. joint promisor or obligor, is in fact a surety. Flippen v. Lindsey, 221 N. C., 30, 18 S. E. (2d), 824; Ins. Co. v. Morehead, 209 N. C., 174, 183 S. E., 606; Davis v. Alexander, 207 N. C., 417, 177 S. E., 417. The three-year statute of limitations, C. S., 441, is applicable to sureties on sealed instruments as well as on instruments not under seal. Furr v. Trull, 205 N. C., 417, 171 S. E., 641; Redmond v. Pippen, 113 N. C., 90, 18 S. E., 50; Welfare v. Thompson, 83 N. C., 276. See Trust Co. v. Glifton, 203 N. C., 483, 166 S. E., 334; Gurrin v. Gurrin, supra.

However, in tbe instant case, we are dealing with a nonsuit entered at tbe close of plaintiff’s evidence. Considered in its most favorable light, it is sufficient to carry tbe case to tbe jury.

On tbe further bearing, tbe defendant will have an opportunity to offer evidence in support of bis defense.

Reversed.