Cross v. Craven

• Decision Date: 30 March 1897
• Citation: 26 S.E. 940,120 N.C. 331
• Court: North Carolina Supreme Court
• Parties: CROSS et al. v. CRAVEN.

26 S.E. 940

120 N.C. 331

CROSS et al.

v.CRAVEN.

Supreme Court of North Carolina.

March 30, 1897.

Recovery of Realty—Limitations—Disabilities.

Though an infant, after accrual of her cause of action for real estate, had a guardian for seven years before her marriage, which was before her majority, she is not barred by failure to sue for the land while under guardianship; the guardian having no title to the land, and not being liable for failure to sue therefor; and it being provided by Code, § 148, that if one entitled to sue for real estate is under 21 years of age, or is a married woman, such person may, notwithstanding the statute of limitations, commence action within three years after full age or discoverture.

Appeal from superior court, Cabarrus county; Norwood, Judge.

Action by D. B. Cross and wife and others against R. P. Craven to recover land. Judg-ment for defendant. Plaintiffs appeal. Affirmed.

Jones & Boykin, for appellants.

W. G. Means and Burwell, Walker & Cansler, for appellee.

CLARK, J. It was error to charge that though Mrs. Cross was an infant when her cause of action accrued, and was married before arriving at age, she was barred by the statute of limitations from maintaining an action for the real estate, because she had a legal guardian for seven years before her marriage. Section 148 of the Code provides that: "If a person entitled to commence an action for the recovery of real property, " etc., "is within the age of 21 years or a married woman, " etc., "then such person may, notwithstanding the statute of limitations, commence his action within three years next after full age or discoverture, " etc. Here the disability of coverture supervened upon that of infancy, and the statute of limitation is suspended in language too explicit to be capable of any other construction. Clayton v. Rose, 87 N. C. 106. The defendant relies upon Culp v. Lee, 109 N. C. 675, 678, 14 S. E. 74, but that has no application to actions for the recovery of realty when the legal title is in the person under disability. In Culp v. Lee it was contended that an executor, who had filed his final account many years before, was not protected by the statute, because the distributees were infants; but the court held that, the distributees having had a general guardian, the executor, having been exposed to an action by him for the full period prescribed by the statute, was protected by the lapse of time. It was pointed out that in such case the guardian would be...