The act of 1715, ch. 48, sec;. 9, bars the Plaintiff’s claim. The principles of this decision being stated at large in the case of M’Lellan’s administrator v. Hill’s executors, decided by this Court at June term, 1804, it is unnecessary to repeat them here. Let judgment be entered for the defendants.
Neil's Executor v. Hosmer's Executors, 5 N.C. 202, 1 Mur. 202 (1808)
July 1808
·
Supreme Court of North Carolina
5 N.C. 202, 1 Mur. 202
Neil’s Executor v. Hosmer’s Executors.
1 VFrom Chowan, J
Act of 1715, ch. 48, sec. 9, barring' the claims of creditors.against the 'estates of deceased persons.
A. demised lands to B. and B. covenanted in the indenture of demise, to pay §50 annually for the rent. The demise was made in 1790, and B. died in 1794, having had possession of the premises until his death. The demise expired in 1808, no rent having beenpaid. A. sued the executor of B-. upon the covenant of the indenture, for the rents; the suit was brought in 1804-, and the Executor pleaded the act of 1715, ch. 48, in bar. Plea sustained ; for
The' Defendants arc not sued upon their own possession, but upon the possession of their testator, upon his pernancy Of the profits of the ■ demised premises, and not tlieir own, and they must answer as his representatives. The act bars after seven years from the death of the testator, although great part of the rent did not become due until more than seven years after his death ; no notice of the debthaving been given to the executor within the seven years.
This was an action of covenant in which the Jury found a special verdict, setting forth, that Mary Blount, widow, being seised and possessed of an estate for life in certain lands in Pasquotank county, with Sylvester Hosiner, on the 23d day of December, in the year 1790, executed- a certain indenture, whereby ike said Mary “ demised, leased, and to farm let to the said Sylvester, Ms executors, administrators and assigns, the said lands with the--appurtenances, to have and to hold the said lands wiffi^the appurtenances to the said Sylvester, his executors, administrators and assigns, from the first day of January then next following, for and during the term of the natural life of the said Mary : yielding and paying the sum of fifty dollars annually ; the first payment to be made on the first day of January, 1792.” By virtue of this indenture, Husmsintered and took possession of the premises, and continued in|possession thereof until his death, in March, 1794. Hosmer made a will and *203appointed the Defendants his executors, who prayed the will and undertook the execution thereof. Hosmer left sufficient assets, which came to the hands of his cxecu-tors, to pay the rents reserved in the said indenture of demise, and all other just debts and demands against his estate. In the beginning of the year 1797, Mary Blount intermarried with Henry Neil, and lived with him until his death, in October, 1802, when said Henry died, leaving said Mary him surviving. Henry Neil did not at any time during his marriage with said Mary, demand or receive any part of the rent of the demised premises: that the said rent remained unpaid, and with the rents which accrued after his death, remained unpaid at the time of bringing this suit. In the year 1803, Mary Neil, the widow, made her will, appointed the Plaintiff executor thereof, and shortly afterwards died. The writ in this case, was sued out on the 22d day of September, 1804, and the Defendants pleaded “the general issue, covenants not broken, plane admmistramt, and the act of 1715.” t
■The case was sent to this Court for the opinion of the Judges, and was argued by Slade for the Plaintiff, and by Browne for the Defendants.
On the part of the Plaintiff two questions were made. 1st. Whether the Plaintiff be entitled to all the rents due. on the indenture. 2d. Whether the Plaintiff’s claim’ be barred by the act of 1715. As to the first, it was contended, that as Henry Neil had not reduced into his possession any part of the rents, nor even made a demand of payment, the rent survived to his wife Mary, and upon her death vested in her representative; .that, therefore, if the Plaintiff were entitled to any part of the vents due, he was entitled to the whole. Upon this point were cited, 1 Yern. 161 — 2 Yern. 190, 401, 707 — 1 Eq. Ab. 54, b — 2 Atk. 720 — Ambler 692 — 2 Yes. 676.
As to the statute of 1715, ch. 48, sec. 9, it was observed, that this case did not come within its meaning *204and purview. The, statute declares, “ that creditors of any person deceased, shall make their claim within seven years after the death of such debtor; otherwise such creditor shall be forever barred.” Does the word claim include in its meaning debts which do not become payable until after the expiration of the seven years, as well as debts which become payable within that period ? As to the latter, their payment could be enforced by suit against the representatives of the deceased debtor and the creditors to whom they were due, might justly be required to make claim within the seven years. But in what way shall a creditor make claim within that period, whose debt does not become due until after its expiration ? It is true, he might exhibit his claim to the representatives of the debtor, but lie could not enforce it: and why exhibit his claim, if he be without the ability to enforce it ? It appears from the special verdict, that the defendants’ testator died nine years and nine months before the lease expired, or in other words, before the last rent became due. Therefore, as to a large portion of the rent claimed by the Plaintiff, it did not become payable until long after the death of the Defendants’ testator. If there be a debt to become due at some future day, or upon some contingency or possibility which may happen beyond the limit of seven years after the death of the party executing the contract on which such debt or duty is to arise, such a case could never come within the meaning of the act, although it might seem to come within the letter of it. It has been adjudged, and generally admitted, that a legacy, or distributive share of an intestate’s estate, although within the letter of the act, is not within its spirit and meaning. This shews that the act does not bar in all cases and under all circumstances. Suppose Kosmer had given to Blount his bond payable ten years after date, and had died within one year after-wards ; would the act bar a recovery upon this bond l Suppose that he had given to her a single bill, payable by instalment,9, and died more than seven years before *205the last payment became due ; it is a well known rule of law, that no action could be maintained on such single bill, until after the time of the last payment had elapsed : would the act of 1715 bar a recovery in such case ? The. covenant on which the plaintiff’s action is founded, contains no penalty in case of non-payment of the rentnor any clause of forfeiture or re-entry. It may therefore, with great propriety, be likened to the case of the single bill just mentioned.
fut if the act of 1715 operate upon this case at all, it only be on the rent which became due in the lifetime of Hosraer. For since his death, the ex-tutors are chargeable on their own possession. They are always liable upon the covenant of their testator, so long as they have assets to pay, and cannot discharge themselves by an assignment of the term in any other manner. 2 Bae. Ab. 443 — 1 Mod. 185 — 3 Mod. 225 — 1 Levinz, 127.
Browne, for the Defendants. — The Defendants are noi sued upon their own possession they are sued upon the possession of their testator, and are to answer as his representatives. The act of 1715 is a complete bar. It bars after seven years from the death of the testator or intestate ; not from the qualification of the executor or administrator, nor from the accrual of the cause of action. It matters not, if the bond given by the testator does not become due until more than seven” years after liis death : upon such bond, the executors are protected from suit by the act of 1715, which was intended to quiet executors after seven years. It does not appear from the special verdict, that any notice„was given to the executors of Hosmer of this debt within seven years, and the rule applies, “ de non apparentibus et de non existen-tibus eadem est lex.” As, therefore, the Defendants are not charged in this case with the pernancy of the profits of the demised premises, but are charged upon the possession of their testator only, the Plaintiff’s whole claim *206is barred. The cases relied upon by the Plaintiff’s counsel, were those in which the executors were charged upon their own possession, or upon their pernancy of the profits ; and in that respect they differ from the present case.
The operation of the act of 1715, upon claims against the estates of deceased persons, has been settled by this Court, in the case of M’Lellan’s administrator v. Hill’s executor, decided at June term, 1804 — Conference Rep. 479. There the testator was bound to pay a debt to the intestate at a future day, before which day both partjgp died, and no administration was taken on M’Clellarrs estate till many years after the debt became due. The executors of Hill pleaded the act of 1715, and this Court held that the act barred the Plaintiff’s claim.