McNair v. Stanton , 57 Miss. 298 ( 1879 )

Chalmers, J.,

delivered the opinion of the court.

The note of a married woman, given for the purchase-money of land, imposes no personal obligation upon her, but she will be compelled by a court of equity to pay it or surrender the land, or so much of it as is necessary for the liquidation of the note. Johnson v. Jones, 51 Miss. 860. It is insisted that, inasmuch as this obligation to surrender the land is a trust raised and' imposed upon her by a court of equity, it becomes barred only after the expiration of ten years, under the provisions of Code 1871, § 2175, prescribing the period of limitation in cases of trusts not cognizable in courts of law. This view is erroneous. The note of a married woman given for land is not void, or even wholly voidable. While not enforceable as a personal obligation, as indeed very few contracts of married women are, she will be compelled by a court of chancery to pay it or surrender the .property acquired by its execution. This is not the kind of trust referred to in § 2175 of tbe Code. Those are express trusts, springing not so much from the contracts as from the situation and duties of the parties. The trust here arises purely ex contractu; its amount, date of maturity, rate of interest, and period of limitation being determinable wholly by the form which the parties have given to their agreement. The vendor of the land, in receiving a bond or promissory note for the purchase-money, must be considered as limiting his right to proceed against the feme covert vendee for the payment of the obligation or surrender of the land to the period of limitation applicable to such forms of indebtedness. Any other doctrine would, as to the Statute of Limitations, make these contracts of a married woman more onerous than those of a person sui juris. Surely such was not the intention of the lawgiver.

It is competent to raise the defence of the Statute of Limitations by a demurrer to a bill in chancery, as has frequently been decided.

Decree reversed, demurrer sustained and Mil dismissed.