Underhill v. Mobile Fire Department Insurance , 67 Ala. 45 ( 1880 )

BRICKELL, C. <J.

— The questions presented for our consideration are, whether the clemurrer to the original bill was properly sustained, and whether the court erred in the refusal of leave to amend the bill as proposed. The particular wrong of which complaint is made, and of which redress is sought, is the conversion of the shares of stock of the intestate, Edward McDermott, in the Mobile Fire Department Insurance Company. It is unimportant whether the conversion is regarded as having occurred on the 27th of April, 1876, when James McDermott had the stock transferred into his own name, and surrendered the original certificate issued to the intestate, or in November, 1870, when James transferred to McMahon, more than six years having intervened from either period before this bill was filed. The statute of limitations, obligatory alike on courts of equity, and courts of law, declares that actions to “recover for the detention or conversion of personal property, must be commenced within six years from the time when the cause of action accrued.” Code of 1876, § 3236. And when the suit is in equity, if, on the face of the bill, it appears that a longer period than that prescribed by the statute has intervened before its filing, the defendant may avail himself of the bar of the statute by demurrer, unless by proper averments it is shown that there is sufficient cause for excepting the case from the bar. — 1 Brick. Dig. §§ 859-60.

The present case, it is argued, is withdrawn from the operation of the statute because it appears on the face of the bill, that until the appointment of the appellant as receiver, there was no one having the right and capacity to sue for the conversion of the stock. The general principiéis, undoubtedly, as stated by the counsel for the appellant, that laches cannot be imputed — that the statute will not run where there is no one having the right and capacity to sue, or where there is no one capable of being sued. — 2 Brick. Dig. 220, § 35. The principle must, however, be accepted with this explanation and qualification : that if the statute once commences running, it does not cease running, because of an intervening disability of suit. It is averred in the original and amended bills, that McGuire was appointed special administrator of the estate of Edward McDermott. The time of the appointment is not averred, nor is the time of its expiration, by reason of McGuire’s death. The appellant can derive no benefit from the opnesion of these averments. The intendments and presumptions are, that he has stated his case as strongly as the facts will justify, and that the averment, of the time and duration of McGuire's appointment, would not have aided him, or it would have been stated. Under the statute a special administrator has large authority, and corresponding duty. It is his duty to collect and preserve the goods^ and chatteR, rights and credits of the deceased, and for this purpose he can, as administrator, maintain suits. Code of 1876, § 2859. All suits instituted, or judgments obtained by him, are capable of being revived in the name of the administrator-in-chief when he is appointed. His capacity of suit in relation to the personal assets, is as large as that of the administrator-in-chief. For the conversion of this stock, McGuire had full capacity to sue, if his authority was existing when the conversion occurred. The existence of the authority at the time of the conversion must be intended, because the intendment is consistent with the averments of the bill, and the presumption is, that if the fact were otherwise, it would have been averred. No intendments can be tnade in favor of a pleader, which do not naturally and logically result from the facts stated in the pleading. True, it is averred that the grant of administration to McGuire, was for the sole and limited purpose of enabling him to prosecute a suit pending in the name of the intestate at the time of his death. This may have been the purpose of the party procuring, the application to be made, and it may have been that the court of probate acted on the hypothesis that the revivor and prosecution of that suit, was the necessity for the grant of a temporary, limited administration, instead of the grant of a general, full administration. The statute intervened, and clothed McGuire with the legal title to all the personal assets, and with the authority to collect, preserve, and if necessary, to sue for them, whatever may have been the purposes of the grant of administration to him, or the necessity for it upon which the court acted. There was, then, a party capable of suing for the conversion of this stock, and the statute of limitations was running while he had that capacity. The termination of the administration, and its continued vacancy, by reason of McGuire's death, did not arrest or impede the operation of the statute. Upon this point the authorities speak an unvarying language. Reed v. Minell, 30 Ala. 61.

We do not enter on the inquiry, whether the proposed amendment was not too late, coming after the rendition of final decree, sustaining the demurrer to, and dismissing the original bill. In no event should it have been allowed, if by proper averments, it did not withdraw the ease from the bar of the statute of limitations. The gravamen of the amendment was, the minority of some, and the ignorance of all the distributees of Edward McDermott, who had been instru>mental in procuring the appointment of appellant as receiver, of the fact of the intestate’s ownership of the stock, and of the fact of its conversion, until within a brief period before the filing of the original bill. There is no proper averment that the ignorance was superinduced by fraud, or by more than the mere passiveness of the respondents. Ignorance of right in the party complaining, there being no more than passiveness, mere silence, on the part of his adversary, cannot be engrafted as an exception on the statute of limitations, without a destruction of its wise policy, and without an encouragement of mere negligence. — Reed v. Minell, supra; Martin v. Br. Bank of Decatur, 31 Ala. 115. There is no fact stated in the original, or amended bill, which does not indicate clearly, that if the parties in interest had been as active and diligent before six years had elapsed from the wrongs of which complaint is made, as they were subsequently, they could not have ascertained their rights, and the wrongs done them. If from the lapse of time they sustain loss, the immediate cause of the loss is their own inactivity, and it is not the inactive, the negligent, the law protects. If the amendment of the original bill had been allowed it would have been subject to demurrer as was the original bill, and of consequence the appellant suffered no injury from its disallowance.

Affirmed.