{
  "id": 8687600,
  "name": "W. A. BLOUNT, Administrator of L. O'B. Branch, v. ALEXANDER PARKER",
  "name_abbreviation": "Blount v. Parker",
  "decision_date": "1878-01",
  "docket_number": "",
  "first_page": "128",
  "last_page": "132",
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  "last_updated": "2023-07-14T19:04:18.240606+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. A. BLOUNT, Administrator of L. O\u2019B. Branch, v. ALEXANDER PARKER."
    ],
    "opinions": [
      {
        "text": "Smith, C. J.\n(After stating the facts as above.) The only question before us is as to the application of the statute to-the facts of this case, and whether its operation -was suspended during the time the plaintiff remained ignorant of the possession and conversion of the bonds by the defendant, and began to run only at the date of discovery.\nSeveral cases, very briefly reported in 1 Haywood, were cited in support of the proposition that the statute ran' only from the time when the plaintiff acquired knowledge of the tortious act, and that the defendant was liable; and thei\u2019e have been eases elsewhere in which it is held that in case of fraud, the statute runs only from the time of its discovery. The doctrine seems to have been founded on the rule which prevails in a Court of Equity, and will not permit one, who has fraudulently concealed his own wrongful act and thereby prevented the suit, to set up as a defence the plaintiff's delay in bringing it. But such is not the law in this State. Here it is held, both on principle and authority, that the force and effect given by the statute to the lapse of time? cannot be defeated by proof that the plaintiff did not know of the defendant\u2019s act of conversion or of his fraud. \"We will refer to some of our own decided cases:\u2014\nIn Hamilton v. Shepherd, 3 Murph. 115, the action was to recover damages for fraud in the sale of a land warrant, to which the defendant pleaded the statute of limitations. The plaintiff replied specially that the fraud'was not discovered until within three years of the time when the action was brought. Upon the appeal the only point considered by the -Court was that arising out of the statute of limitations. In delivering the opinion of the Court, He\u00edtdebson, J. says; \u201c When there is a pure trust, in w.hich case equity has exclusive jurisdiction, also in cases where there is a fraud in which equity-has like jurisdiction, the Court of Equity will permit or not, at its discretion, lapse of time to bar an investigation. But that Court is -bound by no statute on the subject, for the subject matter is\u2018 not one of the cases barred by the statute of limitations.\u201d And he proceeds to declare; \u201c If it were on a subject matter cognizable at law and within the cases provided for in the Act of limitations, that act is as positive a bar in a Court of Equity as in a Court of Law.\u201d And then concludes: \u201cFor except a case in Massachusetts and a few nisi prius cases in this State, not a case can be found where such a rule is established ; nor do I know how any should be expected. When the words of the Act and of its savings are so explicit, we are not at liberty to travel out of them.\u201d\nIn the case of Baines v. Williams, 3 Ire. 481, the defendant-contracted with the plaintiff\u2019s intestate to go to Georgia, there sell a negro slave of the intestate, and collect his hire, and with the moneys on his return home pay a judgment recovered by one Boykin against the intestate. The defendant did not apply the moneys to the judgment, but appropriated them to his own use. The plaintiff remained ignorant of the misapplication of the fund for many years, and supposed the debt had been discharged. In .delivering the opinion of the Court, Gaston, J. says ; \u201c As to the matters stated in the ease tending to show that the plaintiff\u2019s intestate had been kept in ignorance, or had been deceived by the defendant in regard' to his breach of the engagement, or furnishing some excuse for the delay in bringing suit, we have only to say, that in a'Court of Law, they cannot avail to take the case out of the operation of the statute. Hamilton v. Shepherd, 3 Murph. 115. Whether they can be urged with more effect in another tribunal, it is unnecessary to inquire.\u201d See also Troupe v. Smith, 20 John. (N. Y.) 33. We fully concur in this \u00e9xposition \u00a9f the law as applicable to the facts of this case.\nWe have not overlooked paragraph 9 of \u00a7 34 of C. C. P., which, provides that when relief is asked on the ground of fraud,' the statute shall run only from the discovery of the \u2022fraud by the aggrieved party, \u201c in cases which heretofore were solely cognizable in a Court of Equity.\u201d This Act if applicable would not aid the plaintiff, as he is asserting a legal right in a form of proceeding substituted for an action \u00a1at law, and entirely outside the jurisdiction of a Court of Equity. The Act however may be regarded as a legislative -declaration that the effect of the statute cannot be defeated, \u25a0even in case of undiscovered fraud, unless the fraud is such that the jurisdiction of a Court of Equity was alone competent to afford relief. Such seems also to be the opinion of \u00a1this Court as intimated in the recent case of Batts v. Winstead, 77 N. C. 238. But as the plaintiff\u2019s cause of action .accrued' in 1865, it is governed by the law as contained in the Rev. Code ch. 65 \u00a7 3.\nWe therefore sustain the ruling of the Court that the iplaintiff\u2019s action is barred.\nNo- error.\nPer Curiam. Judgment affirmed.",
        "type": "majority",
        "author": "Smith, C. J."
      }
    ],
    "attorneys": [
      "Mr. W. H. Bailey, for plaintiff\".",
      "Mr. J. M. McCorJde, for defendant."
    ],
    "corrections": "",
    "head_matter": "W. A. BLOUNT, Administrator of L. O\u2019B. Branch, v. ALEXANDER PARKER.\n, Statute of Limitations \u2014 Ignorance of Plaintiff \u2014 Fraud of Defendant.\n1. In an action to recover damages for the conversion of personal property, the defendant pleaded the statute of limitations ; Held, that the force and effect given by the statute to the lapse of time cannot be defeated by proof that the plaintiff did not know of the defendant\u2019s act of conversion, or that the defendant fraudulently concealed the same.\n: 2. In such action, where it appeared that in 1865, a safe in which were certain bonds belonging to the plaintiff\u2019s intestate was broken open by Federal troops, and most of the bonds stolen or destroyed, and that defendant found three of them in the public street, and took possession of them; and afterwards in 1875, the plaintiff ascertained that the defendant had possession of the bonds, and demanded them, notifying the defendant that they belonged to the estate of his intestate, and defendant refused to surrender them, but in a few weeks thereafter, sold them and converted the proceeds, whereupon che plaintiff brought this action; It teas held, that the action was barred by the statute of limitations.\n;:3. In such case, the provisions of 0. C. P. \u00a7 34, do not aid the plaintiff, even if his cause of action had accrued since the adoption of the Code.\ni.(Hamilton v. Shepherd, 3 Murph. 115; Baines v. Williams, 3 Ire. 481; Batts v. Winstead, T\u00ed N. C. 238, cited and approved.)\n' Civil ActioN, tried at January Special Term, 1878, of Rowan Superior Court, before Kerr, J.\nL. O. B. Branch, at the time of his death in 1862, owned ten coupon bonds of this State, and six coupon bonds of Virginia, each in the sum of $1000, and issued before'the war, which were in possession of his wife in the City of Raleigh. 'In November of that year, administration on his estate was granted to the plaintiff. On the approach of the military forces of the United States towards the City in the month <?of April, 1865, these bonds, in a small tin box, were put in an iron safe and sent for safety to tbe Town of Salisbury. A few days afterwards tbe Federal Cavalry entered tbe Town, tbe office in wbicb tbe safe bad been deposited was burned, tbe safe broken open, aad most of. tbe bonds stolen or destroyed. Three of tbe Virginia bonds however came into the possession of tbe defendant, being found as be alleges, in tbe public street, near the office, and at tbe instance ot tbe widow be was notified that they belonged to tbe intestate\u2019s estate and demand made for their restoration to her. The defendant refused to surrender, and in the course of a few weeks sold the bonds and converted the proceeds of sale to bis own use. Tbe plaintiff had no knowledge or information of the defendant\u2019s possession of tbe bonds, or of his conversion of them, until a few months before tbe 20th day \u2022of August, 1875, when tbe action was commenced against him.\nAmong other defences set up in tbe answer, the defendant relies upon the bar of tbe statute of limitations. On tbe trial, tbe Court, with consent'of plaintiff\u2019s counsel, reserved tbe question arising on tbe defence of tbe statute, and submitted issues to tbe jury wbicb with tbe responses thereto are as follows:\n1. \u2018Did the defendant convert any \u00a9f the bonds specified in plaintiff\u2019s complaint, and if any, bow many ? Answer\u2014 'Three.\n2. \"What is the value of tbe bonds so converted by tbe \u25a0defendant ?. Answer \u2014 One thousand eight hundred dollars with interest thereon from July, 1865, being $3150, with .interest on $1800, until paid.\nTbe Court being of opinion with defendant on the point reserved, and that tbe action was barred, set aside tbe verdict and directed a nonsuit to be entered, and the .plaintiff appealed.\nMr. W. H. Bailey, for plaintiff\".\nMr. J. M. McCorJde, for defendant."
  },
  "file_name": "0128-01",
  "first_page_order": 144,
  "last_page_order": 148
}