North v. James

Chalmers, J., delivered the opinion of the court. The testimony was conflicting, and the Chancellor adopted that of the complainant, which, not being improbable in itself or indeed clearly more so than that of the defendant, must be accepted as true. The facts then are as follows : The father and mother of complainant together deposited with J. A. Williams, deceased, in 1857, seven hundred and forty dollars, which the said Williams agreed to hold until their death or marriage as trustee for complainant and her minor sister, who is now dead with no heir save complainant. The agreement was signed and acknowledged by the father of complainant only, who shortly after left the county and died without being heard from. Interest was regularly paid by Williams to the mother until 1861. There has been to this hour no final settlement of the trust. Williams died in 1870. There was no administration of his estate until shortly before this suit was brought. Complainantcame of agein 1871, having intermarried in 1866 with one James, who lived for eleven years and then died. This suit was brought in 1883. Upon the facts, the Chancellor held that Williams’ estate owed the whole amount due, giving no interest to complainant until after her marriage in 1866, at which time she was entitled to the whole amount, and after which time it is not pretended that she ever received anything. Before that time he held that the interest was properly paid to the mother under the language of the written contract. Apart from the facts, the defense is based wholly on the statute of limitations, which we now proceed to examine: 1. The three years statute is pleaded, because it is said that the agreement to pay was to the husband only, who was bound to pay at the end of three years. This is not so. The contract was to pay the principal sum to the complainant upon her marriage, and it was entirely competent so to contract. 2. It is said that very many years have now elapsed since com [765] plainant’s marriage, and therefore she is barred, as she might then have sued alone. On the contrary, this court has held several times that a mere ability to sue does not impose an obligation to do so. While, therefore, the complainant might have sued either with or without her husband after her marriage, she was not compelled to do so, nor will her failure to sue subject her to a plea of the statute of limitations. Cook v. Lindsey, 34 Miss. 451; Thompson v. Craig, 24 Miss. 598; 11 S. & M. 189; 10 S. & M. 100; 12 S. & M. 9; 28 Miss. 144. 3. It is insisted that if no other statute bars her she must be so barred by the ten years statute, which cuts off all right even where the remedy is purely equitable. Code of 1857, art. 31, p. 403. By the same code, however, the rights of all minors and feme coverts are protected and no statute would run against anybody until one year after the appointment of an administrator upon the estate of Williams, and no such administrator was appointed until shortly before this suit was brought. Code of 1857, p. 401, art. 18. 4. The trust debt due complainant by Williams matured only upon her marriage. She was then covert, by-which fact the running of the statute was prevented until her husband’s death in 1877, at which time the statute would have commenced to run, but before that time Williams died, to wit, in 1870. It could not run under Code of 1857 until there was administration on his estate, which happened only a short time before the bringing of this suit. 5. It is urged, however, that she might have sued upon her marriage, in 1866, and from that time the statute, even if it be of ten years, must be counted. Counsel forgets that she was then undfer a double disability, to wit, coverture and infancy, and that, under such circumstances, the statute will not begin to run until the removal of both. In other words, Mrs. James was entitled to sue only after marriage. She was married at sixteen, and at once became both an infant and a feme covert. It was a case, therefore, of double disability at the time of the accrual of her right. Where a right accrues to a party laboring under two disabilities, the statute will not run until both are removed. Angelí on Limitations, §§ 198,481; Wood on Limitations, pp. 13,491-5. Mrs. James, [766] therefore was not bound to sue until her husband died, in 1877. Mr. Williams, the debtor, died in 1870, and the statute at once ceased to run until an administrator of his estate was appointed, and as soon as this happened this suit was brought. Hence it follows, that though inore than twenty-six years have elapsed si nee'the money was given to Mr. Williams, and more than thirteen years since his death, the demand 'of- Mrs. James is not barred, this whole effect being, perhaps, produced by the failure to qualify on his estate. No such effect is possible under the Code of 1880 by virtue of § 2673, but the rights of the parties have accrued under the former code, nor did sufficient time elapse to bar the defendant after the Code of 1880 took effect, and before the bringing of this suit. Affirmed.