Pindell v. Harris

57 Miss. 739 | Miss. | 1880

Chalmers, J.,

delivered the opinion of the court.

The suit is against a married woman upon a stated account with written promise to pay executed by her after marriage as to a debt contracted before marriage. The question is much discussed by counsel whether a married woman can bind herself or her property by a promise to pay an antenuptial debt, it being insisted, on the one hand, that, as she could not do so at common law and is not empowered to do so by statute, all such contracts are necessarily void; and, on the other, that, as the antenuptial debt is itself binding, there can be no valid objection to her renewing the obligation, inasmuch as the common-law reason, that by so doing she imposes a prolonged liability upon her husband, does not exist with us.

The question is interesting, but not deemed necessary to be decided, since, conceding the power, and treating the written acknowledgment and promise as equivalent to a promissory note, we are of opinion that it is barred by the Statute of Limitations. It was executed in 1865, at a time when the Statute of Limitations was suspended in this State. The statute began to run on April 2,1867, at which time Mrs. Harris resided here. She continued to reside here until October, 1871, when she removed to Memphis, Tennessee. Four years and six months elapsed from the time when the statute was set in motion until her removal from the State. She returned to the State in April, 1878, and resided here for fifteen months and a half, and then again returned to Memphis, where she has since continued to reside. The two periods together aggregate five years, nine months and a half, being two months and a half short of six years. In 1872, while confessedly a resident of Memphis, she visited her mother, with whom she had always previously resided, at her home in Madison County in this State, and there remained for from three to five months. It the period of this visit is to be counted in her favor, or is to be deducted from the time when she is to be regarded in the language of the statute as “ absent from and residing out of the State,” then the bar of the statute in her favor is complete, — otherwise not.

The statute (Code of 1871, § 2157) declares, “ if, after any cause of action shall have accrued, the person against whom it has accrued shall be absent from, and reside out of the State, the time of his absence shall not he taken as any part of the time limited for the commencement of the action.” The clause refers to those who, residing here when the right of action accrues, shall thereafter remove elsewhere. It declares that the time during which they are absent, so residing elsewhere, shall not be taken as forming any portion of the period of limitation. Two things, therefore, it would seem, must concur before the creditor can deprive the debtor of the benefit of the flow of time, viz. residence elsewhere and actual absence from this State. If the debtor, retaining his residence here, is temporarily absent, the statute continues to run in his favor. If, residing elsewhere, he is actually present here, the same result ensues. We do not mean by this that a furtive, clandestine or transient presence here would avail the debtor. Merely passing through the State, or coming into it for a few hours or days each week or month, would not suffice. Such presence would not afford the creditor an opportunity to sue, and would require calculations of time, with a view of determining the whole period spent here, so difficult as to be impracticable. But where the presence here has been open, notorious and continuous for weeks or months, to allow the creditor to disregard it would seem to be a violation of the letter of the statute which permits him only to ignore the time during which the debtor has been absent from and resided out of the State. It is the period of absence that he is permitted to deduct. The time of presence must be counted, unless it be secret or evanescent in its character.

Our statute is similar in language to those of New York, Massachusetts and Vermont. In the first two States a construction different from that here announced has been put upon it, though in both States the cases in which the point was decided were instances of daily visits lasting only a few hours, the debtors returning at night to their homes in the foreign States. In Vermont a conclusion similar to our own was reached, the court saying, however, that there must be a continued residence or commorancy in the State upon the part of the returning debtor; that is to say, a stay continuous, not fitful, — an abiding which is fixed, though temporary in its character. Hall v. Nasmith, 28 Vt. 791.

We think the visit of Mrs. Harris to her former home in 1872, and her stay there of three or five months, come fully up to the requirements here laid down, that she is entitled to have it computed in her favor, and consequently that the suit is barred.

In Ingraham v. Bowie, 38 Miss. 17, it was held under the provisions of Hutch. Code, p. 831, § 11, that the Statute of Limitations once set in motion by a debtor’s ¡return to the State would thereafter run on continuously in his favor, notwithstanding repeated subsequent absences by him. In Withers v. Bullock, 53 Miss. 539, we held that this rule was abrogated by the Codes of 1857 and 1871, and that a debtor could not now claim that, because he was once openly and notoriously in the State, his subsequent absences were to be disregarded, and the statute to run on continuously in his favor. The point now decided, namely, as to whether the debtor who has departed from the State can claim the benefit of the time spent here on subsequent visits when his presence has been open, notorious, and sufficiently long to afford the creditor an opportunity to bring suit, has not heretofore been determined in this State. We have given it the consideration which its practical importance demands.

Decree affirmed.