#### D. C. LOVE, Administrator, v. ELIZABETH P. WEST et al.

(Filed 22 April, 1915.)

Limitation of Actions — Mortgages — Actions to Foreclose — Absence from State — Interpretation of Statutes.

Revisal, sec. 366, is general in its terms and excludes from the computation of tbe statutory period which will bar a right of action the absence from the State for a year or more of the party pleading the statute of limitation, without exception of instances where proceedings in rem will lie against property situated here; and where the ten-year statute, Re-visal, sec. 391, subsec. 3, relating to the foreclosure of a mortgage on land, is pleaded, the absence of the mortgagor from the State for the length of time prescribed in the first named section, or longer, will not be counted, nor will any presumption of payment of the debt be raised within the period allowed for the commencement of the action.

Hoke, J., concurs in result.

Appeal by plaintiff from Allen, J., at September Term, 1914, of New HaNOVER.

Civil action beard upon a report of referee. His Honor confirmed tbe report, and tbe plaintiff appealed.

John D. Bellamy & Son for plaintiff.

Herbert McClammy, Bellamy & Bellamy for defendant.

BrowN, J.

Tbis action is brought to foreclose a mortgage, executed by Samuel J. West to George Harris in 1877, securing a note payable two years after date. Tbe property described in tbe mortgage is tbe one-fiftb interest wbicb tbe mortgagor owned in tbe mortgaged premises. Tbe defendants pleaded tbe statute of limitations. Tbe referee and tbe judge below beld tbat tbe action was barred.

It is admitted tbat tbe mortgagor left tbe State of North Carolina in 1879 and since then has resided continuously outside of tbis State. In 1902 tbe mortgagor conveyed bis interest in tbe property to tbe defendants Elizabeth P. West and Mariana West. Tbis action was instituted 1 April, 1903, for tbe purpose of foreclosing tbe mortgage upon the said one-fifth interest. Tbe said Elizabeth P. and Mariana are parties defendant.

Under section 391, subsection 3, of tbe Revisal an action for tbe foreclosure of a mortgage is generally barred in ten years, unless it has been kept alive by payments or renewed promises to pay. But there is a general exception wbicb applies to tbis cause of action, as well as others.

Section 366, Revisal, reads as follows: “If when tbe cause of action accrue . . . against any person be shall be out of tbe State, action may be commenced . . . within tbe times herein respectively limited *14after tbe return of such person into this State; and if after such, cause of action shall have accrued . . . such person shall depart from and reside out of this State or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be taken as any part of the time limit for the commencement of such action or the enforcement of such judgment.”

It is contended hy the defendants that the proceeding to foreclose a mortgage is an action in rem, which could have been commenced at any time, without personal service upon the mortgagor, and that for this reason this particular cause of action does not come within the provisions of section 366.

It is unnecessary to discuss the character of this action, whether in personam or in 'rem, as the statute contains no exception. Some of the States have enacted statutes similar to ours, but have provided therein that they shall not apply to proceedings which may act directly upon the property situate within the State, as proceedings in rem do; but there is no such exception in our statute.

A number of- States have statutes similar to ours, and in all of them, that we have examined, it has been held.that an action to foreclose a mortgage comes within the purview of the statute, unless there is an exception, and that the absence of the mortgagor from the State suspends the running of the statute. Fallwell v. Henning, 18 Tex., 278; also case, 88 Tex., 368; also case, 89 Tex., 214; Wood v. Goodfellow, 43 Cal., 185; Wall v. Wright, 66 Cal., 202; Emory v. Keigham, 94 Ill., 543; Robertson v. Stubemiller, 93 Iowa, 326; Chicago R. R. v. Cook, 43 Kan., 83; Wholly v. Eldridge, 24 Minn., 358.

We have held that if a debtor is out of the State at the time the cause of action accrues, the statute of limitation does not begin to run until he returns to this State for the purpose of making it his residence. Armfield v. Moore, 44 N. C., 157. In that case it is said: “It is not the policy of this State to drive its citizens, directly or indirectly, to seek their legal remedies abroad, or to encourage nonresidents to keep out of it and beyond the jurisdiction of its courts, as would be the case if hy keeping out of the State the debtor or person against whom a cause of action exists could avail himself of the lapse of time during his absence.” The point presented by this appeal has been practically decided in this Court by Grist v. Williams, 111 N. C., 54.

This was an action in rem in which the plaintiff was proceeding by attachment against property located within this State, the defendant being a resident of the State of Virginia. In that case it is held that the fact that a nonresident debtor has property within the State will not affect the statutes suspending the operation of the statute of limitations for the period during which the person against whom the judgment is made is out of the State.

*15It bas been, suggested tbat a presumption of payment bas arisen against tbe bond and mortgage sought to be foreclosed. It bas been said tbat for tbe sake of repose, and to discourage stale claims, tbe law, after tbe lapse of twenty years, raises a presumption of payment or ratber of an abandonment of tbe cause of action. Tbat was beld, as to a legacy, in Cox v. Brower, 114 N. C., 423, and tbe learned judge writing tbe opinion seems to tbinb tbe presumption would apply to bonds and mortgages.

In respect to bonds under seal, tbe common-law doctrine of a presumption of payment wbieb was rebuttable bas been superseded by a statute of limitations, and where tbe statutory period bas expired there is no rebuttable presumption of payment.

Tbe debt is completely barred unless tbe party seeking to recover on it can rebut tbe statute in tbe manner required by law. Under our law bonds and mortgages are barred in ten years, and no action can be maintained thereafter on them in tbe absence of proof tolling tbe statute. It is not a rebuttable presumption of payment which arises, but an absolute bar to tbe action.

This action would be barred in ten years from tbe date when tbe mortgage debt became due, but for tbe express provision of tbe statute which we have quoted. During tbe absence of tbe defendant from tbe State no limitation or presumption arises against tbe debt, for tbe creditor is not compelled to commence bis action until after tbe debtor returns to tbe State. His absence from tbe State rebuts tbe statute and any presumption of payment of tbe debt.

Upon tbe findings of fact and admissions in tbe pleadings, tbe plaintiff is entitled to judgment of foreclosure. Tbe cause is remanded to tbe Superior Court of New Hanover County with instructions to enter judgment accordingly.

Reversed.

Hoke, J.,

concurring in tbe result: Recognizing tbe correctness of tbe position stated in tbe principal opinion, tbat on tbe facts of this ease tbe continued absence of tbe mortgagee from tbe State will prevent tbe running of tbe statute of limitations, I am of opinion tbat independent of such statute, and in addition thereto, tbe common-law presumption of payment after twenty years still prevails with us, and, unless tbe same is rebutted, tbat such presumption may defeat a recovery. In re Dupree’s Will, 163 N. C., 256; In re Beauchamp’s Will, 146 N. C., 254; Worth v. Wrenn, 144 N. C., pp. 656-660; Cox v. Brower, 114 N. C., 422; Headen v. Womack, 88 N. C., 468; Cartwright v. Kenan, 105 U. S., 1; Campbell v. Brown, 86 U. S., 396.

In Cox v. Brower, supra, Burwell, J., delivering tbe opinion, quotes with approval from Lawson on Presumptive Evidence, as follows: “In*16dependently of a statute of limitations, or in the absence of one after a lapse of twenty years, the law raises a presumption of payment as to bonds, mortgages, legacies, taxes, judgments, the due execution of trusts and the performance of covenants.”

And in applying the principle, it is held, in Campbell v. Brown, supra, and in other cases, that absence from the State will not of itself repel the presumption.

This presumption, however, as heretofore stated, is not absolute as in the ease of our present statute of limitations, but is one of fact, and rebuttable by proper evidence. In the present case the note and mortgage having matured in 1879, and twenty-four years having elapsed prior to the institution of the present action in 1903, if nothing else appeared the claim would be barred by reason of the common-law presumption. The referee, however, has found as a fact that the note and mortgage have not been paid off, and the presumption referred to being thus rebutted, I concur in the disposition made of the case.