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Statute of Presumption has been repealed and for it has been substituted the Statute of Limitations, as a statute of repose which bars the remedy only.
But there is another reason why the statute can not avail the defendant either directly or indirectly: It is provided in the deed of trust that the debtor may have one year within which to pay one-half of the debt, and, if that one-half is paid at maturity, then another year to pay the other half. The provision is not in principle unlike the one in the deed which was construed in Capehart v. Dettrick, 91 N. C., 351. In that case it appeared that a series of notes had been given and secured by a deed of trust in which it was provided that if the debtor failed to pay any one of the series, all the notes should become immediately due and payable, and this court held that it was optional with the creditor whether or not he would avail himself of the right to accelerate the payment of the notes not actually due by their terms. The same principle was declared in Barbee v. Scoggins, 121 N. C., 135, and in that case it was further held that the failure of the creditor to exercise the option did not set the statute in motion. in our case, while the extension of payment of half of the debt for two years was made to depend upon the payment of the other half at the expiration of the first year, the plaintiff could waive the benefit of the condition or the payment of the first half of the debt and elect to wait until the end of the two years for the payment of the entire amount. The case of Parker v. Banks, 79 N. C., 481, 488, would seem to be directly in point. In that case, the court (Bynum, J.) says: "The condition of the mortgage was a continuing one-to pay in instalments, at several times--and the mortgagee could await the maturity of the last note before an entry and sale, or elect to treat the non-payment of the first or any subsequent note at maturity as a forfeiture of the mortgage.
This doctrine of election to waive or enforce a forfeiture is
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discussed in Towle v. Ayer, 8 N. H., 57, and in Angell on Limitations, 470, and notes. The exercise of the right of election was a matter within the sound discretion of the mortgagee, to be determined by a prudent consideration of the interests of the parties to the trust, and his action is binding upon a mere volunteer claiming as a purchaser with full notice." In Capehart v. Dettrick, 91 N. C., 351, and Barbee v. Scoggins, 121 N. C., 135, the court held that the mortgagee or trustee had an option to sell, though by the terms of the deed, the entire debt was matured by the failure to pay any part of it. In Cox v. Kille, 50 N. J. Eq., 176, the court says: "It is urged that because the bond provides that in case interest remains due and unpaid for the space of thirty days, then the principal shall become instantly due and payable, without saying that it shall become so payable at the option of the holder of the bond, the obligor may consider the principal as due and discharge the bond. In other words, the claim is that the obligor by means of his own default may exercise the option, which most evidently the parties intended to give only to the obligee."
"Authorities need not be cited in support of the general doctrine that equity will not permit a party to take advantage of his own wrong. The principle, however, has frequently been applied when courts have been called upon to determine the rights between landlords and tenants, under similar circumstances. It is entirely optional with the lessor whether he will avail himself of this right of re-entry or not, although by the terms of the proviso, the term is to cease or become void for the non-performance of the covenants; and if the lessor does not avail himself of it, the term will continue, for the lessee can not elect that it shall cease or be void."
In construing a similar provision in a mortgage, the court, in Lowenstein v. Phelan, 17 Neb., 430, said: "The provision, however, is for the benefit of the mortgagee to enable
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him to procure the money loaned at the time it was agreed to be paid. If the mortgagee so desires, he may institute an action upon default to foreclose and, upon obtaining a decree, have the premises sold. He need not do so, however. The stipulation being made for his benefit, he may waive it without putting himself in default." It follows, therefore, that if the Statute of Limitations applies in this case the right to foreclose was not barred until May 4, 1901, which was after the date of the sale under the power.
There was no error in the ruling of the court as to the payments, which the plaintiff alleged prevented the running of the statute. The reason why a part payment is allowed to prevent the bar of the statute is that it is deemed an admission of a subsisting liability, from which a promise, as of the date of the payment, to pay the balance of the debt will be implied, but in order to raise this implication there must be a voluntary payment by the debtor or by some one authorized to make the payment for him. The trustee was not so authorized in this case. Battle v. Battle, 116 N. C., 161.
Our conclusion is that in no view of the case was the plaintiff's right to recover affected by the Statute of Limitations, and the court below erred in holding that the plaintiff's cause of action is barred and in instructing the jury to answer the second and third issues "No."
CLARK, C. J., and DOUGLAS, J., dissent on grounds stated in their dissenting opinion in Menzel v. Hinton, ante.
SMITH V. RAILWAY CO.
SMITH v. ATLANTA & CHARLOTTE AIR LINE RAILWAY CO. (Filed June 6, 1903.)
1. EVIDENCE-Sufficiency of Evidence-Negligence-Contributory Negligence-Proximate Cause-Master and Servant
The evidence in this case is sufficient to be submitted to the jury upon the issues of negligence of defendant, contributory negligence of plaintiff and the proximate cause of the injury.
2. NEGLIGENCE—Ordinances-Speed of Train.
The running of a train at a greater speed than is allowed by an ordinance is evidence of negligence.
3. NEGLIGENCE-Railroads-Master and Servant-Signals-Rules of Railroad Company.
It is the duty of an engineer of a railroad company to use all proper and reasonable efforts to avoid injuring other servants of the company engaged in their work and to observe the rules laid down by the company.
ACTION by Fred. Smith against the Atlanta & Charlotte Air Line Railway Company, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of MECKLENBURG County. From a judgment for the plaintiff, the defendant appealed.
Burwell & Cansler, for the plaintiff.
CONNOR, J. The plaintiff being in the employment of the lessee of the defendant was on the date of the injury complained of sent to paint switch targets, and at the time of the injury was painting a target the center of which was four feet from the center of the west rail of the defendant's track. The flange of the switch target extended from the center of the target toward the rail six inches. The engine extended over the track and towards the switch target as follows: Tender frame 23 1-2 inches, punch pole 24 inches, the step be
SMITH v. RAILWAY CO.
tween the engine and tender 29 inches and the cylinder 26 inches. While engaged in painting the target, the plaintiff set his bucket, containing paint, down near the rail. A shifting engine and tender were passing back and forth over the tracks, and just before this engine reached the point where the plaintiff was at work he reached over to put his brush in the bucket and was instantly stricken by the shifting engine, which was backing up towards him.
The plaintiff put in evidence certain rules of the defendant company, Rule W being, "Whenever any person, animal or other obstruction appears upon the track, or so close thereto, as to be in danger, then instantly the following precautions must be observed: First, the alarm whistle must be sounded; second, the brakes must be applied; third, every other possible means must be employed to stop the train and prevent the accident. If there is time, all of these requirements must be complied with. If by reason of the speed of the train, or the suddenness of the obstruction, only a part of these precautions can be observed, then such of them, as under the particular facts of each case are best calculated to prevent a possible accident, must be observed." "Rule 66. The unnecessary use of the whistle is prohibited. When necessary in shifting at stations and in yards, the engine bell shall be rung, and the whistle used only when required by rule or law or when necessary to prevent accident." "Rule 121. In all cases of doubt or uncertainty, take the safe course and run no risks."
The plaintiff testified that he was familiar with these rules and that the switch engine was moving backwards and forward in the yard of the defendant's tracks; that he went to work and put his bucket right down beside the switch and started to paint the target; had been engaged in the work about ten or fifteen minutes when the engine came and knocked him down. That is the last he remembers. That he heard no bell ringing