Jennings v. Love
24 Miss. 249
Miss. Ct. App.
1852
Check Treatment
Mr. Justice Fisher

delivered the opinion of the court.

This was an action of assumpsit founded upon an open account against the deceased, Asa Love, and due in March, 1844, in favor of the plaintiff in error.

The action was commenced in the circuit court of Yazoo county on the 21st of October, 1848, and the defendant on the trial relied on the statute of limitations, as a defence to the action. The instruction asked by the plaintiff and refused by the court, and the one given on behalf of the defendant, constitute the errors which we will examine.

The instruction asked by the plaintiff is in these words: “ That if they believe from the evidence that the defendant qualified as administrator of Asa Love, deceased, on the 27th May, 3847, that the said plaintiff is by law entitled to nine months’ time over and in addition to the limitations of three years, and one year, because of the death of the debtor, to be excepted out of the alleged period of limitation of the act set up as a bar to this action.” The object of this instruction was to bring the case within the operation of the 10th section of Hutch. Code, p. 831, which, after requiring certain actions to be *253commenced within three years next aftér the canse of action accrued, and not after, is as follows: “ Except that in case of the death of the creditor or debtor, the farther time of one year from the death of such creditor or debtor shall be allowed for the commencement of the suit,” &c. The objection to this instruction is, that it assumes a proposition to be true, which the law will not sustain. It assumes, that if the debtor died at any time before the expiration of the term of three years, the limitation was four instead of three years. The statute will not bear this construction. To bring a case within the exception, the creditor or debtor must die at some period during the third year of the limitation. If he die before the expiration of two years, the exception cannot be made to apply to such a case", because the suit is to-be commenced within one year from the death; and if two years had not elapsed from the time of the cause of action, the ordinary term of three years’ limitation would not be allowed. Whether a case falls within the exception or not, is a question of fact, to be determined by the jury from the evidence introduced on the trial. Whether the death of the debtor will give the plaintiff four years in which to commence his suit, depends upon the exact time the death occurs. If it occur on the day before the three years’ bar would be complete, then the plaintiff would gain the full benefit of the exception, by having another year added to the three years ; but in no other way can he attain this advantage. The instruction proceeds upon a different view of the law. It asks the court to instruct the jury, that if the defendant qualified as administrator on the 27th of May, 1847, then the plaintiff is entitled to nine months in addition to the three years, and one because of the death of the debtor. To make this instruction correct, the proof must establish the case we have put: that the debtor died on the last day of the three years. No such proof appears in the record, and no such presumption could arise from the fact that the defendant qualified as administrator on the 27th of May, 1847. The instruction was, therefore, erroneous, and the court did right in refusing it.

The defendant’s instruction is in these words: that if they believe that the cause of action accrued more than four years *254before the commencement of this suit, then it is barred by the statute of limitations, and they must find for the defendant. This instruction necessarily makes the nine months in which the plaintiff was restrained from suing, part of the' one year allowed under the exception in case of the death of the debtor. The question by the plaintiff’s and defendant’s instruction was by the court excluded from the consideration of the jury, as to the time the debtor died. The evidence might have warranted them in finding that he'died after the expiration of two years, and at some period during the third year, thus entitling him to the additional year from the death, as contemplated by the statute, within which to bring suit. Is the period' of nine months, during which no suit could be commenced, to be computed as part of this additional year? In deciding on this point, we assume that the debtor died during the third year-after the cause of action accrued, and that the creditor was thus entitled by the words of the act to an additional year from that time, within which to bring his suit.

In the exposition of a statute, the intention of the law-maker, when ascertained, will prevail over the literal sense of terms, and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view ; and the intention is to be taken or presumed according to what is consonant with reason and good direction. 1 Kent’s Com. 461.

With these rules before us, let us examine the statute in question, and determine whether the nine months, within which the plaintiff was restrained from suing, shall be computed as part of the year allowed in case of the death of the debtor. The suit is to be commenced within one year from the death of the debtor. This language is not more definite than that requiring the suit to be commenced within three years. after the cause of action shall have accrued, and not after ; or the language in the old statute requiring an action on a promissory note to be commenced within six years after the cause of action shall accrue, and not after. A question identical with the one now before us, arose in this court, at its January term, 1844; .in deciding *255which the court used the following language : “ The intestate died after the maturity of the note, and the general rule is, that when the statute once commences, it runs on, notwithstanding any subsequent disabilities ; yet when the disability grows out of some positive statutory provision, it seems but right to exclude the time during which such temporary disability continues, from the computation.” 2 S. & M. 452. This decision settles the question before us, and under it the period of 'nine months should not be computed as any part of the additional year allowed in case of the party’s death. The reason of the rule is, that the plaintiff is by law restrained from suing or asserting' his right during this period. He cannot be more diligent than the law will allow him, and is, therefore, only obeying its mandate in not pursuing his remedy.

But it is said that the language of the statute requires the suit to be commenced in one year from the death of the party. This is true ; and it is also true, that it requires certain actions to be commenced within three and six years from the time the cause of action accrued. Yet the court held that the statute did not run during the nine months in which suit could not be commenced.

The statute must be construed with reference to the necessity of the law, the mischief felt, and the remedy in view. Our first inquiry must, therefore, be to ascertain the mischief felt. Certain rules of law have long ingrafted themselves upon the statute of limitations, not the least of which is the one, that when it commences, “ it runs on, notwithstanding any subsequent disability.” It frequently happened that a party died at* a time when the bar was nearly complete, and which became complete before administration could be granted on the estate of the deceased. In such cases the statute continued to run, and often constituted a bar to a just claim, when suit could not have been at an earlier period commenced, because there was -no one in law able to sue, or liable to be sued. The operation of this rule in such cases, was the evil which the legislature desired to remedy, and hence the exception in the 10th section. ' The mischief found a remedy, not in abolishing or changing the rule by the legislature, but in extending the limitation. If *256the debtor or creditor died before the expiration of two years, there was still another year in which the plaintiff could assert his rights. If the death occurred after the expiration of the two years, still but one year was allowed for the creditor to use the proper diligence to have a representative of the deceased appointed ; and if he permit this period to elapse without having a representative liable to suit appointed, his claim is then barred. The case, then, stands as it did under the old statute, when, if the bar became complete before the appointment of the proper representative, the creditor’s remedy was gone. The period of nine months can only be deducted in those cases, where the law restrains the creditor from suing the executor or administrator.

Judgment reversed, and cause remanded.