Fox v. Drewry

Hughes,

J., (after stating the facts.) At the time the appellant conveyed the land in controversy, she was an infant feme covert, and was remaining under the disability of coverture, when she commenced this suit. Was she barred by the seven-years statute of limitations or by laches?

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The statute of limitations in this state allows a married woman three years after she becomes discovert within which to commence her action. Hershy v. Latham, 42 Ark. 307; McKneely v. Terry, 61 Ark. 527. But “where seven years have elapsed since the right of action for land accrued, and three of these years have been free from disability, the right of entry or of action is barred.” Chandlers. Neighbors, 44 Ark. 479.

The act of April 28, 1873, which authorizes married women to sue alone, and in their own names, does not repeal by implication the saving clause in their favor in the statute of limitations. Hershy v. Latham, 42 Ark. 305; Stull v. Harris, 51 Ark. 297.

A married woman may be estopped to claim real estate. But mere silence or inertness will not suffice to work an estoppel. Sims v. Everhardt, 102 U. S. 300. “Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although, under the name of laches, it may afford a ground for refusing relief under some peculiar circumstances. De Bussche v. Alt, L. R. 8 Ch. Div. 286, 314. Unless in some way the party relying upon an estoppel is put at disadvantage by the action of the party sought to be estopped, it will not be available. Of course, if one stand by, without making his claim known, and see another make permanent and valuable improvements upon land, knowing that the party improving claims to own it, he will afterwards be estopped to enforce his claim, for his silence in such a case would imply consent. If the doctrine of laches could apply in an action at law, which this really was, though it was transferred to the equity docket, there is no sufficient evidence in this case to support it.

When unnecessary to return consideration.

As the purchase money paid for the land in this case was received by appellant’s husband, and expended by him while she was an infant, she was not required to offer to return it. The evidence tends to show she was not able to do so. St. L., I. M. & S. Ry. Co. v. Higgins, 44 Ark. 296; Stull v. Harris, 51 Ark. 299.

The judgment is reversed, and the cause is remanded for a new trialv