Jordan v. M'Kenzie

30 Miss. 32 | Miss. | 1855

Mr. Justice HaNdy,

delivered the opinion of tbe court.

Tbe plaintiffs in error, as distributees of Andrew C. Jordan, deceased, filed tbeir bill in tbe District Chancery Court, at Holly Springs, against tbe administratrix of Jordan, and tbe defendant, M‘Kenzie, 'to' recover certain slaves belonging to tbe estate of Jordan, with hire, which tbe administratrix is alleged to have sold illegally to M4Kenzie. Administration was granted in 1837, and tbe sale of one of tbe slaves was made, previous to tbe year 1839.; tbe other was sold in January, 1846, and both of tbe slaves came to MNenzie’s possession when be purchased them.

Tbe bill alleges that all tbe debts of the estate have been paid, that no final account has been rendered by tbe administratrix, and that tbe sureties on her bond are insolvent.

In addition to other grounds of defence, M‘Kenzie pleads tbe Statute of Limitations, of three years, in bar of tbe relief sought; and tbe only question which we deem it necessary to consider, is, whether, under tbe circumstances of tbe case, tbe statute was a bar to tbe complainants’ recovery.

It appears, that several of tbe complainants were minors at the time of filing tbe bill, but that two others of them were of lawful age, and capable of suing, one in tbe year 1842, and tbe other in tbe year 1846. Tbe question is, therefore, presented, whether, some of tbe complainants being of full age, and capable of suing, for more than three years before tbe suit was instituted, tbe statute is a bar to tbe suit as to all of them.

It is to be observed here, that the bill claims title to the slaves in controversy, to be in the complainants jointly, the object of the suit not being a distribution of the slaves, or their avails, to and among the complainants by the aid of a Court of Equity, upon the suggestion of the inadequacy of the Probate Court to make such distribution; but a recovery of the slaves, and hire for their use, as the joint property of the complainants. . The bill claims nothing in severaltv to the distributees.

This being the attitude of the case, we consider the rule to be well settled, that if'one of several persons entitled to a joint action be capable of suing at the time the cause of action accrued against the defendant, and the suit be not instituted within the time limited by the statute, all will be barred; for the disability of one or more does not save the right of the others. And this rule is held to apply both at law and in equity. Marsteller v. MeLean, 7 Cranch, 156; Riden v. Frion, 3 Murph. (N. C.) 577; Dickey v. Armstrong, 1 A. K. Marsh. 39; Turner v. Dehill, 2 Ib. 384; Wells v. Ragland, 1 Swan, (Tenn.) 501.

The statute commenced running as to the defendant, MIKenzie, from the time the slaves came to his possession under his purchase, because until that time, they were in the possession of the adminis-tratrix, who held them as trustee, and against her, the statute could not run. It commenced running in favor of the defendant, when he became the purchaser from the administratrix; and as between that time, and the time of filing the bill, more than three years elapsed, the statute was a bar.

But it is said that the statute is not a bar, because M‘Kenzie is a trustee for the complainants, and that as between trustee and cestui que trust the statute does not apply.

This rule is well settled to be applicable only to direct technical trusts. Such a relation existed between the complainants and the administratrix, but not between the complainants and M£Kenzie, who purchased from the administratrix and holds adversely, and could not be held a trustee, unless by implication, and as to such a trustee, we have frequently held that the Statute of Limitations applies.

We are of opinion that the statute was a bar to the entire action, and that the dismissal of the bill by the court below, though for different reason, was not error.

Let the decree be affirmed.