Kavenagh v. Weedon ( 1840 )

ORMOND, J.

— The material question to be considered in this case is, when did the right of action of the plaintiff’s intestate accrue, for from that time the statute of limitations, which is pleaded in bar of the suit, commenced running. The defendant undertook by his agreement with the deceased, to convey to him a tract of land in Virginia, as soon as he arrived in Alabama, and obtained his wife’s relinquishment.

Whatever may have been the right of the deceased to maintain an action for the purchase money, on the neglect or refusal of the defendant to make the title on demand, during the life of Mrs. Weedon, and waivingjhe consideration of the question, whether it was the duty of Weedon, if he designed to protect himself by the statute of limitations, to notify Jones of his arrival in Alabama, it is certain that at her death, as the performance of the contract became impossible, the deceased had a right of action immediately, and without any act of his against the defendant, for the purchase money of the land.

This is not directly controverted by the counsel for the plaintiff in error: but he insists that as this fact, was more in the knowledge of the defendant than the deceased, that it was his duty to notify him of the fact, and that until such notice given, the statute would not commence running.

It is a settled principle, that when a right is to accrue to on® on the happening of an event within his own knowledge alone, or better known to him than the one from whom the right is to be received, that to entitle himself to demand performance, he must give notice that the event has happened: as when A. promises to pay 13, a sum of money when 13. attains the age of twenty-one. As the knowledge of this fact, must be better known to 13. than to A. he could not maintain an action against A. until he had given him notice that the event had happened, on which the payment of the money depended. Conceding this principle applicable to this case, can the death of Mrs. Weedon be considered an event peculiarly within the knowledge of her husband? It is most manifest that such an occurrence is one of public notoriety, and must have been known to many persons, as well as to her husband. Such an event is usually noticed in the public prints — it is disclosed by the mourning habiliments of the surviving members of the family, and is the subject of general conversation in the neighborhood. It is impossible to say that such an event is peculiarly within the knowledge of one of the parties.

The non-re3¡dence of the intestate of the plaintiff in error, might have prevented him from acquiring this knowledge, by those accidental sources of information which were open to those living.in the vicinity; but this circumstance cannot change the rule of law. He did know that the title was not made, and if in truth he was ignorant of the fact of Mrs. Weedon’s death, any enquiry into the reason of the delay, must have resulted in information to him of the cause. The delay then, was either wilful, or he was grossly negligent of his rights; and either will be alike fatal to him.

As therefore the bar of the statute was complete when this action was commenced, there was no error in the charge of the court, and its judgment is therefore affirmed.