Marsteller v. Marsteller

93 Pa. 350 | Pa. | 1880

Mr. Justice Trunkey

delivered the opinion of the court, May 3d 1880.

Sarah E. Marsteller died in 1864, leaving a husband and five children surviving. Letters of administration upon her estate were issued in 1876, and in the same year, this action was commenced to recover money she had loaned to her husband, the defendant. He alleges, that the court erred in refusing his point, that “ the plaintiff cannot recover because of the bar of the Statute of Limitations and this is the chief subject presented in the numerous assignments.

This point depends on the question when the right of action accrued; for until then, in those cases where the remedy is suspended, the statute does not begin to run. Although the debt existed at the time of the loan, yet the remedy was postponed until the death of the husband. In contemplation of law, the wife is scarcely considered to have a separate existence; she and her husband constitute but one person, and the unity of persons is the source from which her disability to maintain suit is derived: Towers v. Hagner, 3 Whart. 48. There the action was by the widow against the executor to recover for money she had loaned her husband in his lifetime, and it was held the statute did not begin to run until his death. The same principle was applied in Kutz’s Appeal, 4 Wright 90, where a married woman, in distribution of the assigned estate of a firm of which her husband was a partner, was allowed the principal and interest of money she had loaned the firm, although by the terms of the loan, the money was due eleven years before the assignment. Nothing in the recent statutes, securing the rights of married women, affects the question; and, therefore, the right of action did not accrue in the lifetime of Mrs. Marsteller. This rule prevails where the remedy is postponed for other cause than disability of person. The remedy, not the debt, is regulated by statute. Until the cause of the particular action which the defendant sets up the statute to bar has arisen, until the right is complete to institute that action, the statute does not begin to run. Thus, a tax collector is prohibited bringing suit within two years from the date of his warrant, and though the tax was due and collectible on the warrant within its life, against the action allowed afterwards, the Statute of Limitations begins to run from the date it could have been commenced: Wickersham v. Russell, 1 P. F. Smith 71.

A cause of action does not exist, unless there be a person in existence capable of suing, or of being sued. When one receives money belonging to the estate of an intestate, after his death and before administration granted, the statute runs not from the date of the receipt, but from the grant of administration: Cary v. Stephenson, Skin. 555; Salk. 422. Hope, holding bills, died before their acceptance, and they being presented through an unauthorized channel, prior to grant of administration, were accepted: held that the Statute of Limitations began to run at the date of the grant, not the date of acceptance or payment of the bills : Murray v. East India Co., 5 B. & Ad. 204. Like doctrine is maintained in Douglass v. Forrest, 4 Bing. 702, and Buckland v. Ford, 5 Barb. 393. In Levering v. Rittenhouse, 4 Whart. 130, it is said, that if a surety pays the debt of his principal after the latter’s death, and before letters of administration, the Statute of Limitations does not begin to run until letters are taken out; that it is only where the creditor may, and has a right to sue, that the statute commences running. But if the surety paid the debt in the lifetime of his principal, the statute commenced to run, and his subsequent death would not stop it. The rule is, that the statute begins to run at the date suit may be commenced; once begun it is not stayed by a party’s death; if no action accrued prior to the death, none accrues till grant of administration, and the statute runs from such grant. The plaintiff in error refers to Man v. Warner, 4 Whart. 455, and Campbell v. Fleming, 13 P. F. Smith 245; but these eases accord with the rule as stated. In the former, the replication showed, that the executors “ carried on and continued the business of the said decedent, Rom the time of the decease of said decedent down to the suing out of the writ,” which the demurrer admitted; and hence it is plain that the note, which became due after the decedent’s death and more than six years before suit, did not mature till after the letters were issued to the executors. In Campbell v. Fleming, the statute began to run before the decedent’s death.

The children of Mrs. Marsteller have no right of action to recover this money from the defendant, whether they be infants or of full age, and no question of adding one disability to another arises. Nor is it now at all material, whether the defendant became an executor de- son tort — he is answering an action brought by the lawful administrators, for recovery of his personal debt for money he borrowed in the decedent’s lifetime.

It can scarcely be required to specially note any of the remaining alleged errors, except the sixth assignment. The praecipe is in the common form, given in either Graydon or Dunlop, and the summons is as prescribed by the Act of 1836, which does not require the amount of the debt to be stated therein. This action is on simple contract, and the verdict may well be for a sum not exceeding that named in the declaration. Any writing that contains evidence pertinent to the issue, whether will or mortgage, is admissible, though not set forth in the narr. — the claim is not grounded on a writing.

The sixth specification of error is to the admission of the record of mortgage, dated April 5th 1856, to secure the payment of $5000, due April 1st 1857,.with entry of satisfaction by “Lovina Mars-teller,” the offer stating the mortgage was by Henry Franklin Marsteller to Lovina Marsteller, his wife. “Defendant objected to the offer of record of mortgage under the pleadings as inadmissible, and as not being declared upon in the narr.” Here, he will be confined to that objection; Mills v. Buchanan, 2 Harris 59; Fidler v. Hershey, 9 Norris 363. It was an implied admission that he gave the mortgage to his wife, and that she entered the satisfaction. He made the point expressly, that it was inadmissible under the pleadings — that excluded inference that he had other objection. Therefore, the court rightly treated the mortgage as an undisputed fact, and properly referred to its contents in the instructions to the jury. They were bound to consider it in connection with the other testimony; uncontradicted, it certainly showed that when it was given-, he owed his wife $5000.

We are of opinion, that there was sufficient testimony to submit to the jury, and that the charge of the court was as favorable to the defendant as he had right to demand.

Judgment affirmed.