Bynum v. Memphis & Charleston R. R. , 100 Ala. 311 ( 1893 )

STONE, C. J.

The cause of action declared on in this suit is the same as that which was the foundation of the suit brought by Mrs. Sarah M. Bynum against the Memphis & Charleston Railroad Company, reported in 92 Ala. 335. It was decided by this court in that case that “the cotton belonged tó the husband, and the wife can not maintain this action.” On the reversal of the case, another suit was brought within a year from the date of the remandment, in the name of O. H. Bynum, as trustee for Mrs. Sarah M. Bynum.

The question presented on this appeal is, whether a suit thus brought within one year by the husband, styling himself trustee takes the case without the influence of the statute, which prescribes one year as the limit, within which actions of this character must be brought. We find no trouble in determining that the provisions of section 2623 of the Code of 1886, do not apply tó a case like the present. We fail to see how this section can have any application to the case as presented on this appeal. As is stated above, this court decided that the cotton in controversy was not the property of Mrs. Bynum, but belonged to the husband; not as trustee, but in his own right. He was the proper party plaintiff.

Styling himself trustee of his wife can. not help his case. His trusteeship did not extend to this property. It was his own. The legal' representative mentioned in § 2623 of the Code, as authorized to bring a second suit, is a legal representative proper; the person in whom the law vests the title to personalty, on the death of the owner.

There is no error in the record.

Affirmed.