Mouser v. Nunn

• Decision Date: 09 March 1911
• Citation: 142 Ky. 656,134 S.W. 1148
• Parties: MOUSER v. NUNN et al.
• Court: Kentucky Court of Appeals

134 S.W. 1148

142 Ky. 656

MOUSER v. NUNN et al.

Court of Appeals of Kentucky.

March 9, 1911

Appeal from Circuit Court, Metcalfe County.

Action by Nancy T. Mouser against Edward Nunn and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. W Compton, for appellant.

Baird &amp Richardson and J. W. Kinnaird, for appellees.

LASSING J.

P. J Nunn was appointed guardian of Nancy T. Landon in February, 1869. He made four settlements as such, the last on March 30, 1875. His ward, while under 14 years of age, married one D. A. Mouser in 1873. P.J. Nunn died in 1906, and in September, 1907, Nancy T. Mouser brought suit against his heirs at law to recover of them the sum of $376.75 (this being the amount shown to be due her by the settlement of March 30, 1875), with interest to date. The answer contained, besides a traverse, a plea of payment and also a plea of the statute of limitation. On these issues proof was taken and the case submitted for judgment. The chancellor was of opinion that the plaintiff was not entitled to the relief sought, and dismissed her petition. She appeals.

According to the pleadings, no money came to the guardian's hands after June 18, 1875, and limitation must be computed from that date. So that more than 32 years have elapsed before suit was brought. To avoid the operation of the statute, it is pleaded that appellant was a married woman in 1875, and had been such at all times thereafter up to the date of the filing of her suit. Under the statute then in force (Gen. St. 1873, § 12, art. 1, c. 48), upon her marriage she was entitled to demand a settlement on the part of her guardian, and upon such settlement her husband was entitled to demand and receive the money due her. Beazley v. Harris, 1 Bush, 533; Brown v. Adkinson, 58 S.W. 524, 22 Ky. Law Rep. 649; Hargis v. Sewell's Adm'r, 87 Ky. 63, 7 S.W. 557, 9 Ky. Law Rep. 920. Her husband had a right of action against the guardian, and the limitation ran against him from the date of that settlement.

This identical question was decided in Hargis v. Sewell's Adm'r, in which, in disposing of a question in many respects similar to that under consideration, this court said: "The husband, in right of the wife, or in his own right, could have settled, receipted for, and collected this money at any time after the settlement. He was entitled to this fund by reason of the marriage, and the statute began to run as soon as this settlement took place." In that case, at the time the settlement took place, the beneficiary was married, and yet the court held that, inasmuch as her husband was entitled to this money, she could not avoid the effect of the plea of the statute of limitations by reason of her coverture.

In the case under...