Grant v. Maier

'The opinion of the court was delivered by White, J. The plaintiffs seek to enforce the payment of a note of 'Christoph Maier, deceased, which became due March 30, 1870. Mrs. Maier, formerly widow in community of Maier, now the wife of Schadele, ■and Wm. A. Moore, tutor of the minors Maier, oppose the prescription •of five years. The case is twofold. We will first determine it as to Moore, tutor. Maier, the maker, died in January, 1870. His widow -qualified as tutrix of her minor children. As such she paid the interest ón the note April 2,1870,1871, and April, 1872, the note when the last payment was made having been extended to 30th March, 1873. In June, 1872, she filed, as tutrix and administratrix, an account in which she debited herself with the payment of interest made in April, 1871, and 1872. The note then, as we have seen, was by the last payment extended to March 30, 1873. In March, 1873, the Widow Maier married Schadele without convoking a family meeting to advise as to whether •■she be continued iu the tutorship. In April, 1873, she paid interest and ¡renewed the no te for one year, signing the renewal as Catherine Maier. In 1874 she did the same thing, signing, however, as Catherine Maier, tutrix ¡and administratrix. She renewed in like manner in 1875, and paid interest, obtaining renewals for 1876 and 1877. The maturity of the note •having thus been brought to March 30,1878, it was clearly not prescribed when the present suit was brought, on the 23d March, 1879, if the renewals operated as interruptions of prescription quoad the minors. It .is contended that those made after the marriage did not, because, owing to the failure to convoke a family meeting, the tutrix ipso facto ceased to be such, and as a consequence ceased to have power to represent the ¡minors, or to bind them by any acknowledgment, express or implied. We are reluctlantly compelled to give our adhesion to the proposition. [53] We say reluctantly, not with reference to the abstract legal proposition,, but to the consequences of its present application; for the evidence-shows that the indulgent creditor was unaware of the second marriage while the various renewals were being made, and by which he was deluded. That a natural tutrix who remarries without convoking a family-meeting is ipso facto removed, results from the unambiguous text which has been often applied. C. C. 254. If, then, the remarriage under the facts disclosed here operated by the sole legal force of things the vacation of the tutorship, Mrs. Maier was-not the tutrix. If she was not, she was without power to bind the-minors by an acknowledgment. If without power, no interruption resulted quoad the minors. The deduction seems inevitable from the-premise, which is the text of the Code. It said, relying on Eenshaw vs. Stafford, 30 A. p. 853, that as Mrs. Maier was tutrix administering, and as in her account she acknowledged having paid interest on the note in. 1871 and 1872, the prescription thereagainst became suspended until the-termination of her gestión. The admission of this proposition would entail as a legal conclusion-that debts could never prescribe against minors during tutelage. The doctrine iu Eenshaw’s case proceeded upon the theory that property under administration was in gremio legis, impressed with the seal of the court, and held by a common agent of all for the benefit of all. Such is not the case with a tutrix, who holds for the minors. True, a tutrix may administer, if the creditors are silent; but her possession is none the less that of the beneficiary heirs, whose right to possession does not depend on a previous administration. Soye vs. Price, 30 A. 93. As to Mrs. Widow Maier, wife of Schadele, we are clear that the renewals operated an interruption of course for her half as widow in community only. It is said that as without the payments or renewals made after the second marriage prescription has accrued, and as the payments of interest after the second marriage are not shown to have-been made by the authority of the husband, therefore they are null hence the note is prescribed. The authority of the husband was not required to enable the wife to pay interest on the debt due by her separate estate. Brooks vs. Wigginton, 14 A. 676. Of course the renunciation of prescription is an act of alienation. • But not so with interruption. The judgment below is reversed as to the opposition of W. M-Moore, tutor, and affirmed as to Mrs. Widow Catherine.Maier, now wife of Schadele. That the right of plaintiff to enforce one half of the note upon one undivided half of the mortgaged premises be and the same is-hereby recognized. The costs below to be equally divided, as also those of the appeal, between the plaintiffs and Mrs. Catherine Schadele.