Shipp v. McKee

• Decision Date: 27 January 1902
• Citation: 80 Miss. 741,31 So. 197
• Court: Mississippi Supreme Court
• Parties: MARY B. SHIPP v. MARGARET B. MCKEE ET AL

31 So. 197

80 Miss. 741

MARY B. SHIPP v. MARGARET B. MCKEE ET AL

Supreme Court of Mississippi

January 27, 1902

March 1902

FROM the chancery court of, first district, Coahoma county. HON A. MCC. KIMBROUGH, Chancellor.

Miss Shipp, appellant, was complainant in the court below; Mrs McKee and others, appellees, were defendants there. From a decree adverse to the complainant she appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

George F. Maynard and Henry T. Helm, for appellant.

The main question in this case is whether there was a life estate of John W. Shipp in this property. On the existence of such life estate depends the right of the appellant to disaffirm her deed given while a minor, and to institute this suit for partition at the time the same was commenced, she claiming, as we shall be able to show, that the law gave her the full statutory time of ten years after the death of her father within which to make her claim to the property.

We are so confident of the existence of the life estate that we shall not make an elaborate presentation of the point, feeling assured that no ingenuity in argument can mislead the court in respect thereto. The muniments of title established the point in our client's favor.

It being clear that there was a life estate in this property held by John W. Shipp, or by the defendants, his grantees, until September 18, 1899, it is well settled in the law that the bar of the statute of limitation--and of all limitations, however long or short in their operation--did not begin to run against her claim until that date.

It may be stated as a rule generally, without exception, and of universal application, that the limitation statutes do not begin to operate against a remainderman until the falling in of the particular estate. Higgins v. Crosby, 40 Ill. 262; Wallace v. Latham, 52 Miss. 297; Dyer v. Brannock, 66 Mo. 391; Noble v. McFarland, 51 Ill. 226; Morrison v. Norman, 47 Ill. 477; Lang v. Hitchcock, 99 Ill. 552; Dugan v. Follett, 100 Ill. 561; Orthwein v. Thomas, 127 Ill. 554; Mettler v. Miller, 129 Ill. 630; Beattie v. Whipple, 154 Ill. 273; Gibson v. Fayne, 8 George, Miss. 164; Harris v. Ross, 86 Mo. 89; Little v. Patterson, 32 Mo. 357; Carr v. Dings, 54 Mo. 95; Patterson v. Laik, 24 Mo. 541; Sims v. Bardoner, 86 Ind. 87; Sims v. Smith, 86 Ind. 577; Stringer v. Mutual Life Ins. Co., 82 Ind. 100; Richardson v. Pate, 93 Ind. 428; Luntz v. Greve, 102 Ind. 173; McClannahan v. Williams, 136 Ind. 37; Tower v. Tower, 141 Ind. 223; Mercers, lessee, v. Selden, 1 Howard, U.S. 53; Robert v. Ellis, (Sou. Car.), Nov. 28, 1900. in S.E. for Dec. 25, 1900; Sims v. Everhardt, 102 U.S. 300; Dewey v. McLean, 7 Kan. 126; Branson v. Thompson, 81 Ky. 391; Keller v. Stanley, 86 Ky. 240; May's Heirs v. Hill, 5 Little, 313; Gill v. Fantelroy, 8 B. Monroe, 177; Preston v. Evans, 56 Md. 494; Jones v. Freed, 43 Ark. 358; Watson v. Thompson, 12 R. I., 472; Beattie v. Wilkinson (W. Va.) 36 F. 649; Adkins v. Spurlock, 33 S. E., 121; Matherson v. Davis, 2 Cold. (Tenn.), 443.

It is held that no suit for partition or for account of rents can be brought by remainderman until termination of the particular estate. Watson v. Thomson, 12 R. I., 472; Mercers, lessee, v. Selden, 1 Howard, U.S. 53; Robert v. Ellis Sou. Car., S. E. Rep., Dec. 25, 1900; Tower v. Tower, 144 Ind. 223; Matherson v. Davis, 2 Cold. (Tenn.), 443; Richardson v. Pate, 93 Ind. 428; Jones v. Freed, 43 Ark. 358; Adkins v. Spurlock, 33 S. E., 121; Harris v. Ross, 86 Mo. 89; Rewolfe's Estate, 15 Mont. L. Rep., 128.

The courts of the state of Indiana seem to have been called upon to pass upon this class of questions more frequently than those of any other state, although none of the cases earlier than the eighty-second volume of their reports afford any reliable guide in determining the questions presented in this case.

After the supreme court of the United States, in Sims v. Everhardt, 102 U.S. 300, had been called upon to criticise and overrule a good part of the decision in Scranton v. Stewart, 52 Ind. 68, the courts of that state reached conclusions differing in great part from those of several earlier cases. Stringer v. Insurance Co., 82 Ind. 100; Sims v. Bardoner, 86 Ind. 87; Sims v. Smith, 86 Ind. 577; Richardson v. Pate, 93 Ind. 423; Luntz v. Greve, 102 Ind. 173; North v. James, 61 Miss. 764.

The oft-repeated contention that the appellant having the right to file a bill for removal of the cloud of her minority deed from her prospective reversion is effectually disposed of by the above principles as applied in Dodd v. Benthal, 4 Heisk. (Tenn.), 601.

For disaffirmance of a deed given during minority, there being a pending life estate, the remainderman giving such deed, is entitled to the full period prescribed by the statute of limitations, after the termination of the particular estate.

The above is the general rule of the law when a different period is not fixed by statute, and no mere delay or silent acquiescence unaccompanied by acts which would amount to a ratification of the deed given in minority is allowed to shorten the period.

The formula of expression usually employed by the courts follows that of Peterson v. Laik, 24 Mo. 541, when the court says: "The asquiescence of an infant after reaching full age for a period short of that which would secure a title by the statute of limitations does not destroy or take away the right which the law for wise purposes has conferred upon infants of disaffirming their deeds." Wallace v. Latham, 52 Miss. 297; Allen v. Poole, 54 Miss. 330; Tyler on Infancy, 67; Ib., 84; Harvey v. Briggs, 68 Miss. 60.

Frank Johnston and D. A. Scott, for appellees.

Miss Shipp could have filed this bill at any time after corn ing of age. Fox v. Coon, 64 Miss. 465.

A minor may disaffirm at any time after coming of age, but if we concede, which we by no means do, that he has the entire period allowed by the statute of limitations within which to make the disaffirmance; yet the question is what statute is to be looked to for ascertaining the period for disaffirmance.

Clearly the statute to be looked to is the one that governs the equitable remedy, within § 2696, code 1880, re-enacted in § 2753, code 1892, which applies to all bills not otherwise provided for. Miss Shipp became of age in the early part of 1888, and then her right of disaffirmance began. It is obvious that she could have no longer time for disaffirmance than the time allowed by this statute for filing a bill to vacate her deed.

We respectfully submit that the American doctrine is that a minor must disaffirm an executed contract in a reasonable time after reaching majority. This was decided in Thompson v. Strickland, 52 Miss. 574.

In Wallace v. Latham, 52 Miss. 297, it appears from the brief of counsel that the minor came of age in 1869 and that the suit was begun three years afterwards. The question, therefore, whether the minor had the full time of the period of limitations to disaffirm was not necessarily involved in the case.

In Thompson v. Strickland, 52 Miss. 574, the principle was regarded as settled in Scott v. Freeland, 7 Smed. & M., 419.

In Long v. Williams, 74 Ind. 113, the court expressly held that the fact that the widow had a life estate and a minor heir held the remainder in fee, did not excuse the minor from disaffirming his deed within a reasonable time after reaching majority.

There is a clear distinction between the doctrine of the disaffirmance of contracts, by minors, within a reasonable time, and the rule that an action at law cannot be brought by a remainderman during the existence of a life estate.

One is a right in pais, while the other pertains alone to the remedy at law. The two have no connection, and any decision that holds that the right of disaffirmance extends throughout the period for bringing an action at law confuses the two doctrines.

The appellant waited, without notice of dissent, for twelve years after attaining her majority, and after this long lapse of time files this bill, which could have been filed at any time since 1888.

Argued orally by H. T. Helm, for appellant.

OPINION

TERRAL, J. WHITFIELD, C. J.

By the last will and testament of Cynthia R. Shipp, she devised the lands in controversy to John W. Shipp for his life, and the remainder in fee to Mary B. Shipp and others; one-sixth interest therein being devised to Mary B. Shipp. John W. Shipp, the life tenant, deceased on the 18th day of September, 1899; and soon thereafter Mary B. Shipp brought her bill for partition against Mrs. Margaret B. McKee, her cotenant, and McGrath, who claimed a lien upon said land under a trust deed thereon made by Mrs. McKee. In 1885, while Mary B. Shipp was a minor about 18 years of age, she executed, jointly with John W. Shipp, the life tenant, and with co-tenants in remainder, a conveyance of said properties (being about 1,336 acres of land) to Toof, McGowan & Co., under whom Mrs. Margaret B. McKee claims title. This bill is by Miss Shipp to have her one-sixth interest in said property allotted to her, and for the recovery of her share of the profits of said property since the 18th of September, 1899. Her bill being dismissed, she appealed.

It is said that appellant is barred of any remedy because she could and should, upon coming to the age of 21 years, have filed her bill to remove the cloud from her title created by the execution of the deed made by her while under said age. Under the authority of Fox v. Coon, 64 Miss. 465 (1 So. 629), such suit would lie, yet the appellant is in no legal default by failing to bring such suit. In Wallace v. Latham, 52 Miss. 291, it is said: "It is well settled that the infant who makes a deed conveying...