| N.C. | Jun 5, 1823
Replication has been entered to the defendant's answer, and the parties have proceeded to take depositions. The cause has been set for hearing and transferred to this Court for trial, and at this stage of it a motion is made to dismiss the bill on account of the length of time which has elapsed from the death of John Bowman until the filing of this bill. This motion might as well have been made when the suit was first instituted as at this time, because on such motion the matter contained in the bill only can be examined. The defendant's answer cannot be taken into view, because it is replied to, nor the depositions, because doubtful and disputed facts should be submitted to and be decided by a jury. Notwithstanding this, if a sufficiency appears upon the face of the bill to warrant a dismission of it, it ought to be done.
The bill states that John Bowman departed this life in the year 1780, and this suit seems to have been brought in the year 1815, after the lapse of about thirty-five years. It would be the height of injustice to suffer dormant claims to be brought forward after an unreasonable length of time, when those and those only who could explain them were *276 no more, and no satisfactory reason could be assigned for such (489) delay. In the spirit of this remark the conduct of complainant's husband in not sooner asserting the rights of his wife to the property claimed by the bill (in case she had any) cannot be viewed with an indulgent eye, because it seems that after his intermarriage with complainant he lived thirteen years within two miles of defendant's testator and did not commence this suit until about two years after his death, although he had as perfect a knowledge of all the transactions between them (except as to the cattle) as he had when this suit was instituted.
But we must keep it in view that the wife was the meritorious claimant; that she intermarried with William Tate in her minority, and that after the death of her husband (the first moment she became a free agent) she made herself a party to this suit; for this reason I think the suit ought not to be dismissed, but made dependent upon facts hereafter to be ascertained at the hearing.
It may be, as has been argued, that defendants are ignorant of the manner in which their intestate managed the estate of his testator, and cannot give anything like a definite answer to the allegations contained in the bill. For that reason it is to be regretted that he had not guarded against the event that has taken place by having made a settlement with complainant and her husband during their lives, which he amply had it in his power to do.
For all these reasons I think the bill should not be dismissed, but should go on to a hearing.
TAYLOR, C. J., and HENDERSON, J., concurred.
PER CURIAM. Motion to dismiss denied.
Cited: Falls v. Torrance, post, 491; S. v. McGowen,
(490)