Cook v. Lindsey
34 Miss. 451
Miss.
1857
Check Treatment
Fisher, J.,

delivered the opinion of the court.

This was a bill filed by the complainants in the Chancery Court of Choctaw county, to recover a sum of money alleged to be due to them from the defendant. The court below sustained a demurrer to the bill, on the ground that the claim appeared, by the allegations of the complainants, to be barred by the Statute of Limitations.

The complainants assert a claim to the money as the children and grandchildren of one Mary Lindsey, who died about the year 1836.

It is alleged that Mary Lindsey was the sister of one Tucker, who died about the year 1885, in the State of South Carolina, leaving a large estate, which, under the laws of that State, descended to his brothers- and sister above named. That no administration was ever granted upon his estate, but that it was settled by his half brothers, who paid to the defendant, Toliver F. Lindsey, about the year 1836, the portion of the said Mary, who was then dead. That Toliver F. Lindsey received said money, under a regular power of attorney executed by the parties entitled as distribu-tees of the said Mary’s estate. That soon thereafter he removed to the State of Mississippi, and being called on to account for the -money received from Tucker’s estate, he denied having received the same, and at the same time asserted that nothing was coming to the complainants from said estate, which denial and assertion are alleged to be false and fraudulent.' That the said Lindsey has repeatedly sipce, denied the collection of said money, and that all parties reposing great confidence in him, never discovered the falsehood of said denial and assertion until about eighteen months before the commencement of this suit. The bill further alleges that several of the parties (whose names are set out in pleading), at the time of the execution of the power of attorney to the defendant, and at the time of the receipt of the money by him, were femes *455covert, and so continued till their death; and that their children, who claim in right of their respective mothers, were then infants, and so continued until a short time before filing this bill. The object of this allegation is to take the case out of the operation of the Statute of Limitations; and under the view which we have taken of the case, the facts on this subject are not required to be stated with particularity.

It is said, that this being a trust, the statute never commenced running, and cannot, therefore, be relied on as a defence. The claim, like most contracts between principal and agent, is a pure legal demand, which might have been asserted in a court of law. The trust does not belong to that class against which the statute will not run, but was implied, or resulted from the power to collect the money. The obligation to account arose from the power to collect, and this obligation became complete as soon as the collection was made. This question being disposed of, we will notice the next in order; that is, whether any of the parties, at the time the right accrued, labored under the disability of coverture.

This question is settled by authority. The right accrued during coverture, and consequently vested immediately in the husbands, who could have sued for and recovered the same without joining their vives. It would have been otherwise if the right had accrued before marriage. In that case, nothing but actual reduction to possession by the husbands, or something equivalent thereto, during coverture, would have defeated the right of survivorship to the wives. Wade v. Grimes, 7 How. 432.

This brings us to the main question relied on by the complainants’ counsel, and that is, whether the defendant shall be permitted to avail himself of the defence of the Statute of Limitations, without accompanying such defence Avith an answer denying the fraud. The object of this statute is to protect parties against stale demands, Avhich, in many cases, might be more easily established after a great lapse of time, than if they had been immediately prosecuted ; and while in some cases fraud is, in the view of a court of equity, a sufficient answer to a plea of the Statute of Limitations, yet such answer can never avail a party who, by reasonable diligence, could have ascertained his rights within the time prescribed. The law must be construed with reference to the policy which it *456establishes; and when it admonishes a party to be active in asserting his rights, it must be construed also, to admonish him to be equally active in ascertaining their existence. A different rule would announce but a legal absurdity. It would command diligence to be exercised as to the remedy, but permit negligence to excuse a party for not discovering in proper time, the right, to enforce which, the remedy would be invoked. Fraud is not an exception which the legislature has thought proper to engraft upon the statute, but an exception which courts of equity have established in certain cases, and like all exceptions which do not fall either within the letter or equity of a statute, ought never to be tolerated merely to relieve against the hardship of a particular case. The policy of the law belongs to the country, to society at large; the case is confined to the parties, and what affects the whole country must not be measured by the rights of litigants in a single case. Where the demand is purely of an equitable nature, and the defendant insists on lapse of time, by analogy to the statute as applicable to legal demands, the court, not being absolutely bound by such a defence, may take into consideration such equitable circumstances as ought-to bind the conscience of the party, and may accordingly reject the defence. But in case of a legal demand, nothing but such fraud as was calculated to keep the parties in utter ignorance of their rights, and to place beyond their control the ordinary means of discovery on the subject, ought ever to be held as a sufficient answer to the defence thus made. Here the parties knew their rights, and knew the persons from whom correct information on the subject could have been obtained, and failing to take any step for this purpose, they ought not now, after slumbering upon their rights for nearly twenty years, more than thrice the period prescribed by the statute, to be allowed to urge what was, no doubt, a sufficient act of fraud on the part of the defendant to arouse them jto proper diligence, as an answer to the defence under the statute. But they say they trusted to his statement.’ They had no right to trust, when all the circumstances showed it to be false.

Decree affirmed.