Woods v. Elliott

49 Miss. 168 | Miss. | 1873

Peyton, C. J.,

delivered the opinion of the court:

This is an appeal from a decree of the chancery court, sustaining the defendants’ demurrer to, and dismissing the complainant’s bill.

The facts of the case are, that E. L. Davidson and Jesse Bobertson, residents of the State of Mississippi, on the 1st day of January, 1861, executed their promissory note of that date for $837.03, to Wesson & Cox, residents of the State of New York, payable ten months thereafter, which was indorsed by them to the Shoe and Leather Bank of the city of New York, in the State of New York! That said P. L. Davidson, died intestate, on, or about the 20th of December, 1862.

That at the March term of the probate» court of Yalobusha county, letters of administration of his estate were granted by said court, to one H. M. Davidson, who proceeded to administer said estate, without giving any notice to creditors to present their claims, and have them registered within the time prescribed by law.

That in the month of Deceinber, 1865, the said administrator departed this life, leaving assets of said estate unadministered. And at the January term, 1866, of said probate court, letters of administration de bonis non of the estaté of P. L. Davidson were granted tó Pinkney A. Woods, who, after fully administering said estate, as he then believed, on the 2nd day of September, 1869, filed in said probate court his final account of his administration, which, at the January term following, was examined and allowed by said court, as a full and final settlement of the administration of said estate; and a decree made, that the assets be distributed among the heirs of decedent, and that said administrator be discharged from the trust. And in pursuance of said decree the assets were handed over to John Elliott and' Eliza J. Elliott, guardians of George L. Davidson, minor heir of the said F. L. Davidson, deceased. That the said bank, on the 19th day of October, 1871, instituted suit against said Pinkney D. Wood, as administrator aforesaid, to recover the amount due on his note. This suit was compromised by the defendants paying the plaintiff $207.50, together with the costs of suit and attorney’s fees, amounting in all to $273.55. To subject the estate distributed to the payment of this sum, the said Wood filed his bill in the chancery court of said county against said guardians, setting forth substantially the above stated facts, which, as before stated, was dismissed upon demurrer. This action of the court below constitutes the only assignment of error in this court. It will be readily perceived that the main question in this case is, was the claim of the bank against the estate of the deceased, on which the appellant was sued, barred by either of the statutes of limitation of two, four and six years ? The estate, both real and personal, of the decedent stands charged with the payment of his debts, and for the purpose of ascertaining their amount, the statute has made it the duty of the executor or administrator, within two months after the grant of his letters, to publish in some newspaper printed in the county, or some adjacent county, a notice requesting all persons having claims against the estate to exhibit the same and have them registered, in the manner and within the time prescribed, or they will be forever barred. ■ Revised Gode of 1857, art. 81, page 443. And by art. 83 all claims against the estate of the decedent are required to be registered in the court in which the letters testamentary or of administration were granted, within two years after the first publication of notice to creditors to present their claims. And as this statute commences.to run only from the time of the first publication of notice to creditors, and as there hás been no notice published in this case, there was no bar of the claim sued on under this statute.

We will now proceed to consider whether said claim was barred by the statute of limitation of six years. The note was due on the 4th day of November, 1861. But the right of action thereon was suspended by the war, and the statute of the 29th of January, 1862, suspending the operation of the statute of limitations until one year after the war, which was the 2d day of April, 1867, when the statute of limitations commenced running against the claim sued on by the bank. Hence, it clearly appears that the claim was not barred by this statute of limitations when the suit was brought on it on the 19th day of October, 1871. This brings us to the consideration of the four years statute of limitations, which provides that no action or scire facias shall be brought against any executor or administrator upon any judgment, or other cause of action against his testator or intestate but within four years after the qualification of such executor or administrator. Revised Code of 1857, art. 11, page 400. It is insisted, on the part of the appellant, that no cause of action accrued against the said F. L. Davidson, his intestate, and that, therefore, the statute does not apply to this case; that no cause of action could accrue as to matters in controversy between citizens of the opposing. beligerenfs during the war between the United States and the Confederate States of America. This view of the effect of the war, it is believed, cannot be sustained. It is said there is an obvious distinction between a cause of action and a right, though a cause of action generally confers a right. Thus statutes of limitation do not generally affect the cause of action, but take away the right. 1 Bouvier’s Law Dictionary 247. The cause of action and the right of action upon it are not to be confounded. The cause of action may exist, whilst the right to enforce it in the courts of the country may be suspended.. We think the cause of action existed against the deceased in his life time in contemplation of this statute, but that the right to enforce it by action in the courts, was suspended for a time by the combined operation of the war, and the statute suspending the operation of the statute of limitations.

The old doctrine was, that though the courts of justice were shut up in time of war, so that no process could be instituted, yet the statute of limitations would continue to run. This rigid doctrine seems to have been maintained by Chief Justices, Bridgman, and Holt; but Plowden lays down the more rational doctrine to be, that things happening by an invincible necessity, though they be against the common law, or act of parliament, shall not be prejudicial; and that to say the courts were shut, is a good excuse on voucher of record; and this was also the opinion of Lord Coke, who says: t! that in the times of domestic war, when the courts of justice are shut, a decent shall not take away an entry, though the disseisin was in time of peace; for, if it did, the disseisee would be without remedy, there being no courts open to him to bring his action in.”

The English authorities, says Nugel on Limitations, all relate to the civil and domestic wars of that country, when the courts of justice were shut, and, consequently, when a party, if he was ever so much disposed, could assert no claim, however just. Such an extraordinary state of things is certainly not to be presumed; and, therefore, not contemplated by the legislature of any country ; and consequently the legislature, in limiting a period for the commencement of suits, does not intend that an individual, after suffering all the inconveniences accompanying so serious an event,, shall also be deprived of the rights which belonged to him before it occurred.

The doctrine of Plowden and Sir Edward Ooke on this subject, has been adopted by the Supreme Court of the United States, in the case of Hanger v. Abbott, 6 Wallace, 539 ; in which the court say: “ total inability on. the- part of an enemy crediior, to sustain any contract in the tribunals of the other belligerent, exists during war, but the restoration of peace removes the disability,, and opens the doors of the courts. Absolute suspension of the right, and prohibition to exercise it, exist during the war by the law of nations, and if so, then it is clear that peace cannot bring with it the remedy, if the war be of much duration, unless it also be held that the operation of the statute of limitation is also suspended, during the period the creditor is prohibited, by the existence of .the war and the law of nations, from enforcing his claim. Neither laches nor fraud can be imputed in such a case, and none of- the reasons on which the statute is founded can possibly apply, as the disability to sue becomes absolute by the declaration of war, and is a conclusion- of law. Ability to sue -Was the status of the •creditor when the contract was made, but the effect of war is to suspend the right, not only without any fault on his part, but under circumstances which make it his duty to abstain from any such attempt. This remedy is suspended by the acts of the two governments, and by the law of nations, not applicable at the date of the contract, but which comes into operation in consequence of an event over which he has no control.” This doctrine commends itself to our adoption by its good sense, reason and justice.

According to the foregoing views, the statute of limitation was suspended in the case under consideration until the 2d of April, 1867, the cause of action having accrued in the lifetime of the deceased, the claim sued on was barred by this statute at the time of the institution of the suit, on the 19th of October, 1871. It has been held, that though an administrator is not bound to plead the statute of limitations specially, he is bound to rely on it as a defense, which he may do under the general issue. Straub v. Kirkman, 13 S. & M., 599; and Roberts v. Rogers, 6 Cush., 152. The appellant ought to have interposed-this defence to the suit against him as administrator, by the bank, and not having done so, he wrongfully compromised and paid money as administrator, for which the estate was not liable.

We think the court below did not err' in sustaining the démurrer, and dismissing the bill.

The decree will* therefore, be affirmed/