15 Ind. App. 199 | Ind. Ct. App. | 1896
Appellee recovered judgment against appellant for moneys due her from his testator, her husband, and for the f500.00 allowed her by law.
As to the moneys due from the deceased husband, the statute of limitations constitutes the defense relied on. The question we are called upon to determine is this: Before marriage the wife loaned the husband money, taking his note therefor. After-wards and before the notes were barred by the statute, but subsequent to their maturity, the parties were married and lived together as husband and wife until his death. By this time the period of limitation fixed by the statute had long since expired. Did the statute run against her during the marriage? If not, the claim is enforcible, otherwise it is not.
Under our statute, prior to the revision of 1881, coverture, like infancy, constituted a legal disability. The statute of limitations, however, began to run whenever the cause of action accrued, whether the party was under legal disability or not; but by virtue of express provision of the statute, to him who was under disability, when the cause of action accrued, two years were allowed within which to bring the action, after its removal. King v. Carmichael, 136 Ind. 20; Herff v. Griggs, 121 Ind. 471; 2, R. S. 1876, p. 126, section 215; R. S. 1881, section 296 (R. S. 1894, section 297).
Since the code of 1881, married women have not
It is also true that even had she continued under the statutory disability, appellee would not have been brought within the saving clause by reason of her marriage, because she was not covert’ when the debt matured.
Appellee’s rights then are clearly not preserved by virtue of any exception in the statute. If her rights are to be saved, it must be by reason of the. special and peculiar relationship existing between the parties — that of husband and wife.
Appellant’s learned counsel insist that, under our married women’s enabling act, the legal unity of husband and wife has become an exploded fiction, to which resort may not be had to preserve that which, would otherwise be lost.
Our decisions, however, are to the contrary, and establish the law to be, in this State, that this unity of husband and wife does continue for some purposes; although equity will take cognizance of some of their business dealing with each other, and compel each to do that which is fair and right. Barnett v. Harshbarger, 105 Ind. 410; Harrell v. Harrell, 117 Ind. 94; Comstock v. Coon, 135 Ind. 640.
Both the Supreme Court and this court have decided that the statute of limitations does not run as between husband and wife. Barnett v. Harshbarger,
The question is very fully and ably discussed by Judge Elliott in the Barnett case, and the conclusion is there reached that although the enabling acts have removed the principal portion of a married woman’s disabilities, yet the law still recognizes that the husband and wife are for some purposes one, and that it is not in harmony with the spirit of our institutions to require the unity of the family to be disturbed and its concord to be marred, by compelling the spouse to assert her rights against her consort in a court of law or else be debarred by lapse of time from recovering her own.
This holding is in accord with the views announced in other jurisdictions. Alpaugh v. Wilson (N. J.), 28 Atl. Rep. 722; Second Nat'l Bank v. Merrill, etc., Works (Wis.), 50 N. W. Rep. 505; Burnham v. McMichael (Tex. Civ. App.), 26 S. W. Rep. 887.
The New Jersey and Wisconsin decisions cited refer to and approve the Barnett case, while the Wisconsin case is similiar to this in hand, in that the debt accrued before the marriage.
There is nothing in Kennedy v. Warnica, 136 Ind. 161, to authorize us to hold that the Supreme Court intended to overrule the decisions to which we have referred. Evidently the matters herein, decided and herein involved were not, in the Warnica case, presented to the court nor passed upon by it.
Our conclusion is that the statute of limitations did not run against appellee, during the time of her marriage to and cohabitation with her husband, and such period is to be excluded from calculation in determining whether or not the claim is barred.
Counsel question the correctness of the jury’s al
Judgment affirmed.