Stauffer v. British & American Mortgage Co.

Terral, J., delivered the opinion of the court. Emile Stauffer, on the sixth of December, 1883, sold and conveyed to I. & E. Blackwell a valuable tract of land in Tal-lahatchie county, reserving a vendor’s lien for $2,011.50, due and owing by their promissory notes, and payable,1 the first note for $517.50, on the fifteenth of November, 1884, and the other three notes, for $500 each, on the fifteenth of November, 1885, 1886, and 1887, respectively, and each of these notes was payable to Emile Stauffer or to his order or assigns. Emile Stauffer died March 7, 1884, intestate, and without having assigned these notes, leaving as his heirs and distrib-utees, his wife, Mary Stauffer, of full age, and four minor children of tender years. No administration was fever had on the estate of Emile Stauffer, but Mary Stauffer obtained the legal title to the lands sold from the Blackwells, though without collecting the notes given for the purchase money, one of the notes however being cancelled, or attempted so to be, by Mary Stauf-fer, when she gave a mortgage to the defendant mortgage com-pmny, which became the legal owner of the land through a saie under said mortgage. Long after six years had expired from the date of payment fixed by the last note, but before said four minors, or any one of them, became of age, they, by Manly, [130] their next friend, brought this suit to recover the sum of said notes from' the defendant mortgage company, and to enforce-the vendor’s lien thereon. • The statute of limitation was interposed by demurrer. That no person except an administrator could collect by suit at law the debts due the estate of the intestate is well settled; bift it is held by a line of desoísions in this state that where the intestate owes no debts, the distributees may sue in equity to recover the debts due to the estate of the intestate, and that in such cases the statute of limitations will run against such debts,, though no administration is granted. Traweek v. Kelly, 60 Miss., 652. It is insisted by the learned counsel for the appellants that, the rights and interests of the appellants are several and distinct from the right or interest of their mother, Mary Stauffer, and that these rights are in no sense joint. However, we think the interest of 'the distributees of Emile Stauffer in these notes-was a joint interest; certainly no one of these distributees could have sued for the recovery of the one-fifth part of these four notes, or of one of them. To have had a recovery on all or on any of these notes all of the distributees must have been before the court. It is obvious, in our apprehension of the matter, that the interest of the distributees of Emile Stauffer in the-notes sued on is a joint interest, and that these minor distribu-tees are barred of any suit because their mother, Mary Stauffer,, is barred, upon the familiar rule that where one of the parties to a joint action is of age when the cause of action accrues, the statute of limitation runs against all, and when one is barred all are barred. Affirmed.