Hoggard v. Mitchell , 164 Ark. 296 ( 1924 )

Hart, J.,

(after stating the facts). The chancellor properly held that Georgia Mitchell was barred by the statute of limitations. She was a married woman at the time of the execution of the deed by her mother to Baiford Madison, in December, 1904, and remained'' so until this suit was commenced on the 7th day of June, 1922.

Section 6942 of Crawford & Moses’ Digest,' which is § 5056 of Kirby’s Digest, as amended by the Legislature of 1919, contains a proviso that any feme covert who has a cause of action for the recovery of land upon which she might sue or maintain an action, may bring suit and maintain her action within one year from the passage of the act of 1919.

Pattie Dome died in 1912, and her mother died in December, 1904. During all this’ time, up to the bringing of the present action, appellant and his grantor were in possession of the land in suit. After the death of her mother, Georgia Mitchell had a right to sue for the interest in the lands which she had inherited from her father, and, after the death of her sister, Pattie Dome, she had a right to maintain an action for the interest which she inherited from her. She waited more than one year after the passage of the act of 1919 above referred to before she brought this action. Therefore the chancellor properly held that she was barred of recovery in the land by the statute of limitations.

The chancellor held that the minor children of Lena Moore were entitled to recover her interest in the land, and in this respect we think the chancellor erred. Lena Moore was a married woman at the time her mother executed the deed in 1904, and she remained so after the death of her mother until her own death on January 26, 1916. She died intestate, and left surviving her several minor children as her sole heirs-at-law. At the date of her death, § 5056 of Kirby’s Digest was the statute in force with respect to actions to recover land. Under its provisions a feme covert had three years next after discoverture. within which to bring an action to recover her interest in land. The statute in question contains a saving clause against cumulative disabilities. The disability of coverture-of Lena Moore first occurred, and the three years given her under the statute to bring suit after discoverture did not commence during her coverture; but, when she died, it commenced running against appellees, who were plaintiffs in the court below. The fact that they were minors at the time their mother died did not prevent the running of the statute. They cannot tack their disability to that of their mother in order to suspend or continue the suspension of the operation of the statute. Dowell v. Tucker, 46 Ark. 438, and Freer v. Less, 159 Ark. 509, and cases cited.

Pattie Dome died in 1912 and Lena Moore in 1916. The present suit was not commenced until June 7, 1922. What we have said with regard to the running of the statute of limitations applies -with, the same force to the interest inherited by Lena Moore from her sister, Pattie Dome, as well as to the interest which she inherited from her father. More than .three years elapsed after her death before her childen instituted this action. Under the statute they could not tack the disability of their minority to the disability of coverture of their mother. Therefore they were barfed by the statute of limitations from any recovery in this case, and the chancellor should have so held.

It follows that the decree must be reversed, and the cause will be remanded with 'directions to dismiss the complaint for want of equity.