Chisholm v. Crye

• Decision Date: 15 July 1907
• Citation: 104 S.W. 167,83 Ark. 495
• Parties: CHISHOLM v. CRYE
• Court: Arkansas Supreme Court

104 S.W. 167

83 Ark. 495

CHISHOLM v. CRYE

Supreme Court of Arkansas

July 15, 1907

Appeal from Faulkner Chancery Court; Jeremiah G. Wallace Chancellor; reversed in part.

STATEMENT BY THE COURT.

Nancy C. Chisholm died intestate in the State of Louisiana September 19, 1896. She left J. A. Chisholm, T. J. Chisholm Miss Elmina Chisholm, and Mrs. M. J. Martin, her children and only heirs at law. Mrs. Nancy C. Chisholm had sold a tract of land in Faulkner County to Joseph A. Crye for a consideration of $ 200, evidenced by four purchase money notes of $ 50, due November 1, 1896, 1897, 1898, 1899, respectively. T. J Chisholm was a minor when his mother died. He was born in May, 1884. This suit was brought within a year after he reached his majority. Appellants were all adults when the suit was brought, and had delayed for more than three years after reaching majority before instituting this suit.

This suit was by the heirs in the Faulkner Chancery Court against Crye on the above-described notes to enforce the payment of the purchase money by having the judgment on the notes and having same declared a lien on the land, etc. The suit was instituted February 28, 1906. The firm of Frauenthal and Schwartz was made a party to the bill, it being alleged that said firm claimed an interest in and lien on the property.

Crye answered, denying all the material allegations and setting up the five years' statute of limitations as a defense. The firm of Frauenthal and Schwartz answered, adopting the answer of Crye, denying any knowledge of the transactions, set out in the complaint, and set up that Crye was indebted to it in the sum of $ 667, which was secured by a mortgage on the land. The firm prayed that its answer be taken as a cross-complaint against plaintiffs and the co-defendant Crye that it have judgment, and that its mortgage be declared a superior lien on the land, etc.

The undisputed evidence showed that the notes were past due and had never been paid. The heirs were all non-residents of this State when the suit was instituted. The court held that all the plaintiffs except T. J. Chisholm had lost their right of action by laches, and their complaint was dismissed as to them. Judgment was rendered in favor of T. J. Chisholm for his pro rata of the amount due on the purchase money notes towit: $ 60.20, and same was declared a first lien upon the lands involved in the suit. Judgment was also entered against. Crye for $ 667.00 in favor of the firm of Frauenthal and Schwartz. The land was ordered sold and the proceeds to go in the manner indicated.

This appeal is prosecuted by the heirs of Mrs. Nancy Chisholm, who were denied relief.

Decree affirmed.

J. G. Lile and J. C. Clark, for appellants

1. The claim of Frauenthal & Schwartz is subordinate to rights of plaintiffs. 29 Ark. 650; 43 Id. 464; 37 Id. 571; 50 Id. 322.

2. No cause of action had arisen on any of the notes prior to the death of Mrs. Nancy C. Chisholm. The statute would not begin to run until there was some one capable of suing or until an administrator was appointed. The notes were not barred. 18 Ark. 24; 33 Id. 141; 38 Id. 243; 42 Id. 491; 48 Id. 386; 74 Id. 525; 68 Id. 459; 73 Id. 45. The statute did not commence to run until all the heirs were of age. Kirby's Digest, § 15.

3. There can be no laches where there is no one capable of suing. 42 Ark. 494.

P. H. Prince and Sam Frauenthal, for appellees.

1. Kirby's Digest, § 15, only applies to resident heirs. On the death of Mrs. Chisholm, under the laws of Louisiana, the title to the notes vested in appellants, and the statute of limitations began to run from the maturity of the notes, and they are barred. 11 Am. & Eng. Enc. Law (2 Ed.) 743; 19 Id. 221 n.; 60 Miss. 654.

2. They should have taken out letters of administration, and on failure to do so after a reasonable time the statute would begin to run. 19 Am. & Eng. Enc. Law (2 Ed.), 221-2; Kirby"s Digest, § 5075; 17 Ark. 608.

3. If the notes are barred, the lien is barred. 28 Ark. 267; 43 Id. 464; 53 Id. 358.

OPINION

WOOD, J., (after stating the facts.)

Were appellants barred by the statute of limitations? No cause of action accrued on the notes in suit prior to the death of Mrs. Chisholm, for the first note was due November, 1896, and Mrs. Chisholm died September 1, 1896. The appellees contend that under the laws of Louisiana, there being no debts against the estate of Mrs. Nancy Chisholm, the legal title to the choses in action at once vested in appellants, and that therefore they could have brought suit upon the notes at maturity, and are barred by the statute of limitations because they failed to do so within a period of five years thereafter.

Conceding that, under the facts of this case according to the laws of Louisiana, appellants were vested with the legal title to the notes, still they could not sue to recover on same in this State under our statute until all the heirs became of age. For section 15, Kirby's Digest, provides: "When all of the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases * * * where such intestate was at the time of his death under no legal liability," etc. This statute contemplates that suit can be maintained by the heirs themselves for the collection of debts due their intestate when the heirs themselves and all persons interested as distributees of the estate are of full age, and when the intestate was at the time of his death under no legal liability. The usual rule of expressio unius est exclusio alterius applies here. The expression that it shall be lawful for the heirs to sue under the condition named excludes the idea that they may sue under conditions not named. Therefore debts due the estate of an intestate who was himself free from debt must be collected by an administrator, and not by the heirs in their own names. This was the rule before the passage of the act. Lemon's Heirs v. Rector, 15 Ark. 436; Anthony v. Peay, 18 Ark. 24; Pryor v. Ryburn, 16 Ark. 671 at 671-98. See also Jacks v. Adair, 31 Ark. 616; Collins v. Warner, 32 Ark. 87; Word v. West, 38 Ark. 243.

The statute prescribes the conditions upon which the rule has been changed, and upon which the heirs may now maintain suit. The statute is applicable here. Appellants, to collect their debt, seek the forum where the debtor resides and where the property is situated on which they ask to enforce their vendor's lien. Prof. Minor says: "While the situs of the creditor's right (chose in action) follows the creditor and corresponds to the legal situs of tangible chattels, the situs of the debtor's obligation follows the actual situs of the debtor, or of his property (in case of a proceeding in rem to enforce it), and corresponds to the actual situs of tangible chattels. * * * The actual situs of the debt at a particular moment is the place where payment thereof may at that moment be enforced, whether by proceeding in rem or in personam." Minor, Conflict of Laws, § 121. See Smead v. Chandler, 71 Ark. 505, 76 S.W. 1066. Woerner, Administration, §§ 440, 650, 657.

It follows that appellants are not barred by the statute of limitations. This rule would not obtain, of course, in jurisdictions where the heirs or distributees were allowed to sue without any of the restrictions prescribed by our statute. Traweek v. Kelly, 60 Miss. 652, and cases cited.

Appellee Crye is not entitled to the equitable doctrine of laches. He had not changed his status in relation to the debt due appellants on account of anything appellants have done or failed to do. He sustains the same relation to appellants as when the debt was contracted. He owed their ancestor, and he owes them, and he does not allege or show that he ever offered to pay or pretended that he was willing and ready to pay. So far as he is concerned, he is in no attitude to complain because, on account of his failure or neglect to pay, the bringing of this suit was...