Bridgforth v. Payne

Cooper, C. J., delivered the opinion of the court. The appellant by his demurrer insisted generally upon the protection afforded by the statute of limitations without stating upon what statute he relied. If it be conceded that under the demurrer he might have relied on any statute which existed against the demand, it would avail him nothing, for he withdrew his demurrer as to Lilly Totten, and obtained leave to raise the defense in his answer, and by the answer he specifically pleaded the bar of the statute of six years. The suit is upon a sealed instrument, and to such the statute of seven and not that of six years applied. Acts of 1873, p. 42. Section 2669 of the Code of 1880 is not applicable, because six years have not elapsed since its passage. The appellant having relied upon a statute not applicable, cannot invoke the protection of another not pleaded. A party who pleads or replies to a statute of limitations not appropriate to the action must abide the result. Boyd v. Barrenger, 23 Miss. 269; Trustees v. Gilman, 55 Miss. 148. The appellant cannot have .the advantage of the plea of the seven years’ statute interposed by his co-defendant Jenkins. The defense is a personal one and must be interposed by the party seek [781] ing its protection. The bond sued on is the joint and several obligation of the obligors. The decree for distribution fixed the right of complainants to the fund. Then, and not till then, the statute began to run against those who were under no disability. The right was not a joint one under the decree. Each distributee was entitled to a separate suit for the recovery of his or her ascertained share in the estate, and because the right was not a joint one the rule recognized in Traweek v. Kelly, 60 Miss. 652; Saunders v. Saunders, 49 Miss. 327, and Jordan v. McKenzie, 30 Miss. 32, does not apply. The decree is affirmed.