State Ex Rel . Lippard Wife v. . Troutman , 72 N.C. 551 ( 1875 )

This is an action upon a guardian's bond, executed in 1853; and the defence is the statute of limitations in favor of sureties. The feme plaintiff became of full age on the 1st of March, 1866, was married in 1869, and with her husband commenced this action in 1874.

It is admitted that the statute of limitations was suspended by a series of acts, from the 11th day of May, 1861, until the 1st day of January, 1870. Johnson v. Winslow, 63 N.C. 552; Plott v. Western N.C.Railroad Company, 65 N.C. 74. But the defendant says the act of 1866-``67, chap. 18, sec. 1, so explained and qualified the act of 1866-``67, chap. 17, sec. 8, as to open the Courts to plaintiff, since the 1st day of May, 1865, and cause the statute to run and bar this action.

But it is evident that the act relied upon for this purpose, relates only to debts and causes of action arising out of new matters and transactions subsequent to the 1st day of May, 1865, and was not intended to embrace old debts or transactions occurring before that date, out of which causes of action might arise after that date. It certainly was not intended to embrace an old transaction like this, where the bond was executed in 1858. While stay laws were passed on the one hand for the benefit of debtors, the statute of limitations was suspended on the other, to save the rights of creditors. The defendant's counsel cited the Court to Harris v. Harris, 71 N.C. 174, but that case will be found, upon examination, to support the position here taken; for in that case the statute begun to run in 1858, and the full time, from the 20th of May, 1861, to the 1st of January; 1870, was eliminated from the calculation of time.

But it is further contended, that as this suit was not brought within three years after the 1st of January, 1870, the plaintiff is still barred, and the counsel cited Shaler v. Millsaps 71 N.C. 297, to show that when the action concerns the separate property of the wife, she may sue alone, and he therefore argues that in such cases, converture is not now a disability. The general rule is, where a married woman is a party, her husband must be joined with her. But the statute makes certain exceptions in favor of the wife, one of which is, she may sue alone, when the action concerns her separate property. Bat. Rev., chap. 17, sec. 56. This seems to be a privilege given to married women which may be used for their advantage, but a failure to exercise it is not to operate to their prejudice. For in addition to the general rule above stated, coverture is recognized and treated as a disability in sections 27, 42 and 64 of Bat. Rev., chapter 17. Then as the feme plaintiff did not become of age until 1866, the suspension of the statute of limitations saved her rights until the 1st of January, 1870. But before that time, to-wit, in 1869, she went under the disability of coverture; and sec. 28 of chapter 17, Bat. Rev. enacts "When two or more disabilities shall co-exist, or when one disability shall supervene an existing one, the period prescribed within which an action may be brought, shall not begin to run until the termination of the latest disability.

His Honor in the Superior Court held that the plaintiffs were not barred, and in this opinion we concur.

Let this be certified, c.

PER CURIAM. Judgment affirmed.