Appeal
from Superior Court, Wilson County; Ferguson, Judge.
Controversy
between W. W. Graves and Thomas Howard, executor, and others
heard upon agreed facts. Judgment for Graves, and Howard
appeals. Affirmed.
Where
the statute of limitations has begun to run upon a note
before it is received by the maker's wife, her coverture
though a disability, does not stop the running of the
statute.
This
controversy is heard upon the following agreed facts:
"(1)
That on the 4th day of January, 1900, J. B. Stickney and
his wife, Martha H. Stickney, executed and delivered unto
Mrs. M. P. Morgan, of the state of Alabama, and the sister
of J. B. Stickney, a mortgage deed upon certain lands lying
and being in the town of Wilson, county of Wilson, N. C
containing two acres, and being the residence of the said
J. B. Stickney and his wife, Martha H. Stickney, the said
J. B. Stickney being the owner in fee thereof, which
mortgage is duly recorded in book No. 54, at page 579, in
the office of the register of deeds of Wilson county, for
the purpose of securing a note given by the said J. B.
Stickney to the said M. P. Morgan, for the sum of $1,000,
due and payable on the 4th day of January, 1901.
"(2)
That on the 17th day of January, 1903, for the purpose of
securing the note given by the said J. B. Stickney to J.
Alvin Clark, for $1,000, due one year after date, the said
J. B. Stickney and wife, Martha H. Stickney, executed unto
the said J. Alvin Clark a mortgage upon the same property
described in the mortgage of J. B. Stickney and wife to M.
P. Morgan, above referred to, which said mortgage was duly
recorded in book No. 66 at page 207 in the office of the
register of deeds of Wilson county.
"(3)
That thereafter, before the 6th day of May, 1907, the said
Mrs. M. P. Morgan died domicile in the state of Alabama,
having first made and published her last will and
testament, which said last will and testament was duly
admitted to probate in a court of competent jurisdiction,
and the executor therein named duly and properly qualified
under the laws of the state of Alabama.
"(4)
That by the terms of her last will and testament the said
M. P. Morgan bequeathed the said note to Martha H.
Stickney, and the said note was thereafter duly and
properly transferred and assigned to the said Martha H.
Stickney by her executor.
"(5)
That thereafter, to wit, on about the 1st day of November,
1908, the said Martha
H. Stickney died domicile in the county of Wilson, state of
North Carolina, having first made her last will and
testament, in which said last will and testament she named
Thomas Howard as executor, and the said last will and
testament was duly admitted to probate in the superior
court of Wilson county.
"(6)
That by the terms of said last will and testament all the
property of the said Martha H. Stickney was given to Thomas
Howard, as trustee, to be held by him upon certain uses and
trusts fully set forth in the said last will and testament.
"(7)
Thereafter on the -- day of September, 1911, the said J. B.
Stickney died domicile in the county of Wilson, intestate,
and no administration has been taken out upon his estate,
he having left no property other than the real estate
described and conveyed in the mortgage above referred to,
and which had been allotted to him in appropriate
proceedings as a homestead. At the death of the said J. B.
Stickney, he owed various mortgage indebtedness, and there
were various judgments docketed against him, the aggregate
of which amounts to more than the value of his said
homestead.
"(8)
That nothing whatever was ever paid by the said J. B.
Stickney, or by any one for him, on account of the note,
which he gave to the said M. P. Morgan, and which was due
on the 1st day of January, 1901, and which was secured in
the mortgage given by him and his wife, Martha H. Stickney,
to the said M. P. Morgan, being the mortgage hereinbefore
referred to.
"(9)
That on the 31st day of October, 1911, J. Alvin Clark,
pursuant to the power of sale contained in the mortgage
above referred to, sold the property conveyed therein at
public auction to W. W. Graves, for the sum of seven
thousand and seven hundred dollars ($7,700).
"(10)
That the said Thomas Howard, executor of Martha H.
Stickney, has threatened to cause the said real estate to
be sold pursuant to the power of sale contained in the
mortgage given by J. B. Stickney and wife to M. P. Morgan,
and to take all necessary steps to have the said power of
sale executed.
"(11)
The said W. W. Graves contends that the purchaser under
such a sale would acquire no title as against him; his
contention being that under the statute, more than 10 years
having elapsed since the note, secured in the mortgage,
fell due, and no payments having been made thereon, neither
the mortgagor nor her executors or administrators can
execute such power.
"(12)
The said W. W. Graves has agreed to and with the said
Thomas Howard, trustee and executor aforesaid, that, if the
court shall be of the opinion that the power of sale
contained in the mortgage aforesaid can be executed, he
will pay off and discharge the indebtedness secured
therein, claiming that he has a right, as such purchaser,
to discharge any and all valid and existing liens.
"Wherefore
it is agreed that, if upon the foregoing facts the court
shall be of the opinion that the authority to execute such
power of sale is inoperative and barred by the statute, the
said Thomas Howard, executor aforesaid, will not demand and
cause the same to be executed, but, if the court shall be
of the opinion that the authority to execute such power is
not inoperative and barred, the said W. W. Graves will pay
off and discharge the indebtedness secured in the said
mortgage, without a sale being had."
The
only legal question raised on these facts is whether the
right of action and the right to foreclose under the first
mortgage are barred by the statute of limitations, and it is
admitted that the right of action on the note is barred if
the time from May 6, 1907, to November 1, 1908, during which
time the note and mortgage were the property of the wife of
J. B. Stickney, is counted. It is also admitted that the
right to sell under the power of sale is barred if the act of
1905 is applicable and is constitutional, as applied to the
facts of this case.
His
Honor held that the claim of the defendant under the first
mortgage and the right to sell were barred, and he excepted
and appealed.
ALLEN
J.
The
learned counsel for the defendant referred us to the
decisions of the highest courts of Indiana, New Jersey,
Louisiana, Wisconsin, and Pennsylvania, holding that the
statute of limitations does not run in favor of the husband
against a claim owned by his wife, to which we have given
careful and respectful consideration. The cases from these
courts rest upon the principle of the common law that the
wife cannot maintain an action against her husband, because
of the unity of the person, or upon the ground that the
removal of the common-law disability by statute generally
does not confer upon the wife the right to sue the husband,
in the absence of express legislative declaration to that
effect, and, as she cannot sue, the period of coverture is
not counted against her. If, therefore, the disability of
marriage has been removed, and, in addition the right to sue
the husband has been conferred on the wife by statute in this
state, it follows that the authorities relied on are not
applicable, and the conclusion would seem to be inevitable,
in the absence of an exception in the statute of limitations,
that the period of coverture would be counted against the
wife.
Under
our Constitution and the Revisal, § 2093, the real and
personal property of any female in this state, acquired
before
marriage, or to which, after marriage, she may become in any
manner entitled, is her sole and separate estate and
property, freed from any debts, obligations, or engagements
of her husband, and by chapter 78, Laws of 1899, the
disability of marriage was removed (Bond v.
Beverly, 152 N.C. 63, 67 S.E. 55), and since then the
statute of limitations runs against the wife during
coverture.
Revisal
§ 408, further provides that the wife may maintain an action
without the joinder of her husband--(1) when the action
concerns her separate property, (2) when the action is
between herself and her husband"; and our court has
construed this section to confer upon the wife the right to
maintain an action against her husband. Shuler v.
Millsaps, 71 N.C. 297; McCormac v. Wiggins, 84
N.C. 279; Manning v. Manning, 79 N.C. 293, 28 Am.
Rep. 324; Robinson v. Robinson, 123 N.C. 137, 31
S.E. 371; Perkins v. Brinkley, 133 N.C. 158, 45 S.E.
541. The statutes of limitations contain no exception in
favor of the wife when she holds a claim against her husband.
It therefore appearing that the common-law disability has
been removed, that the wife may sue her husband, and that
there is no exception in the statute of limitations, we are
of opinion that the time from May 6, 1907, to November 1,
1908, must be counted against the defendant, and that the
right of action upon the note secured by the mortgage is
barred. This conclusion has been reached by other c...
