Taylor v. McMurray, 58 N.C. 357, 5 Jones Eq. 357 (1860)

June 1860 · Supreme Court of North Carolina

58 N.C. 357, 5 Jones Eq. 357

WILLIAM W. TAYLOR against C. T. McMURRAY AND SAMUEL H. MASON.

A court of equity is governed by the statutes of limitations and presumptions, in the saíno manner that a court of law is; where, therefore, a bill of sale of a slave, not under seal, contained a false warranty of soundness, and a bill was filed by the purchaser to restrain the collection of the purchase-money, three years had elapsed between the discovery of the unsoundness and the filing of the bill, it was Held that the suit was barred by the statute of limitations.

Cause removed from the Court of Equity of Martin county.

The bill is filed to enjoin the collection of a certain note, and praying to have it surrendered.

The facts are these: On the 28th of April, 1854, the plaintiff purchased a negro woman and child of the defendant, McMur-ray; at the time of his purchase, plaintiff received a bill of sale for said slaves, warranting them to be “sound and healthy.” Some three weeks after the sale, plaintiff discovered that the woman had a cancer on her breast, which was pronounced incurable by physicians, and of which she ultimately died.— Plaintiff gave his note for $600, the price of the woman and her child; plaintiff soon afterwards paid $300 on the note, which was credited, and the note assigned to the defendant, S. II. Mason, who brought suit on it in the Superior Court of Person county. The bill prays to have the collection of the note enjoined, and the note itself surrendered. The bill was filed on the 16th of January, 1858, more than three years from the discovery of the unsoundness. Cause set for hearing on bill, answers, exhibits and proofs, and sent to this Court.

Winston, Jr., for the plaintiff.

Hodman, for the defendant.

MaNly, J.

Relief in this case is barred by the statute of limitations, and we deem it unnecessary, therefore, to consider or discuss the merits of the complaint.

The complaint is based upon a false warranty, contained in a bill of sale for slaves between the parties, not under seal, entered into 28th July, 1854. Its falsity was discovered within seven weeks from the date of the instrument. And this bill, to enjoin the collection of the purchase-money, and for relief, was filed the 16th of January, 1858.

It is too late. A court of equity is governed by the statutes of limitations and presumptions in the same way that a court of law is. An action of assumpsit, or on the case in tort, upon this warranty, was barred in three years from the date of the bill of sale. So, we hold a bill in equity for relief, based upon it, is barred by that lapse of time, in analogy to the statute.

The bill must be dismissed at the costs of the complainant.

Pee CueiaMj Bill dismissed.