Ford's Adm'r v. Clements , 13 Tex. 592 ( 1855 )

Lipscomb, J.

The objection taken to the answers of the plaintiff below to interrogatories filed by the defendant was very properly overruled. The objection was too general; the exception should always be specific, in showing the grounds of the exception.

The second ground of error is more important. The suit was brought to recover slaves. The right of action must have accrued in 1827 or 1828, when the plaintiff was an infant, and this suit was brought 21st February, A. D. 1851. The petitioner alleges that the plaintiff, Mrs. Clements, intermarried with one Eastwood in February, 1844, and that she was then a minor. From the facts stated in the petition, Mrs. Clements must have been born as early as 1824, if not earlier than that. She must have been twenty-one years of age the first of the year 1845. The suit was then barred before the commencement of the action, unless some exception to the statute of limitations can be shown, to sustain the action. The fact of her being a feme covert when she arrived at the age of twenty-one, is not a legal ground of exception, because her right of action accrued during her infancy, and infancy was therefore the impediment to the running of the statute, when her right accrued. When this impediment was removed by arriving at the age of majority, no other disability to the running of the statute could be tacked on to the impediment to the statute running when the right of action accrued. The statute commenced running on her arriving at the age of twenty-one, and the death of Eastwood and her subsequent marriage to Clements did not stop its running. This question was discussed and decided by this Court in the case of White and wife v. Latimer, (12 Tex. R. 61.)

The appellee’s counsel seems mainly to rely on another exception to the statute running, that is, the fraudulent concealment of the appellee’s rights from her by the appellant’s intestate, and that this suit was brought within the time prescribed by the statute, after the discovery of the fraud. This Court has never decided the question whether fraud or any thing else, not mentioned as exceptions to the statute, could be received to avoid the bar of the statute; and perhaps there would be some diversity of opinion on the subject. In the case of McDonald v. McGuire (8 Tex. R. 361,) this Court declined, deciding whether this defence could be set up to the statute or not, because from the circumstances of that case it was not necessary to rest it on that point; but after commenting on the difficulty and danger of permitting such defence, the following language is used: As a safeguard, then, to the “ defendant, if the exception of fraudulent concealment be allowed at all, it should be strictly and clearly proven, and “ also the time at which the fraud was or- by reasonable dili- " gence might have been discovered,” (p. 370-71.) The application of the rule here laid down, would result in this, that as the plaintiff’s right was a matter of record as early as 1827' or 1828, diligence would have informed her of her right. The case would have to be one of very extraordinary features, in which it would be ruled, that a party had been fraudulently kept ignorant of a right so supported by record evidence. In fact, it would be impairing one great object of record evidence of rights secured by deeds to permit such evidence to be resorted to in any case. The object of the record is notice to the world, of the right secured. We believe that no sufficient excuse is shown why the suit was not sooner brought; that if there was a want of notice of right concealed as alleged, the use of due diligence could have defeated the fraudulent intent. (See Tinnen v. Mebane, 10 Tex. R. 255.) ¡Nor is it satisfactorily made out that there was any fraudulent intent. Is it not a more charitable conclusion that Ford was acting, though wrong as to the title of the property, yet with honest intent and through ignorance, than to suppose that Mrs. Clements, by ordindary diligence, could not have known of her rights sooner ? The judgment is reversed and the cause remanded.

Reversed and remanded.