# Love v. . West

> Supreme Court of North Carolina · April 22, 1915 · 169 N.C. 13

URL: https://www.frixlaw.com/law-library/cases/9812023

## Case

- **Full name:** D. C. LOVE, Administrator, v. ELIZABETH P. WEST Et Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** April 22, 1915
- **Citations:** 169 N.C. 13; 84 S.E. 1048; 1915 N.C. LEXIS 135
- **Precedential status:** Published
- **Opinion:** Concurrence by Hoke
- **Judges:** Brown, Hoke
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812023

## Opinion text

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 *16 dependently 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812023. Public record. Not legal advice.