Davis v. Dixon , 61 Tex. 446 ( 1884 )

Delany, J. Com. App.—

The only question to be determined in this case is whether the statute of limitations was suspended by the death of B. W. Allison. The notes were executed in August, 1875. They became due in February, 1876. They were transferred to the plaintiff Davis in July, 1876, and Allison died in September, 1878.

Our statute provides that “ In case of the death of any person in whose favor there may be a cause of action, the law of limitation shall cease to run against such cause of action until twelve months after such death, unless an administrator or executor shall have sooner qualified according to law upon such deceased person’s ■estate; then and in that case the said law of limitation shall only cease to run until such qualification.”

The courts, both of England and America, in construing the statute of limitations of January 1st, have generally held that when a right of action accrued to a party after one’s death, limitation would not commence to run until administration was taken out upon his estate. Indeed, they considered the words “cause of action” as implying that there was some person in esse capable of bringing suit.

But they uniformly held that if the party were living when the right of action accrued, his subsequent death would not stop the running of the statute. See Angell on Lim., ch. 7.

In this state the terms of limitation in some cases are very short, and the ruling of the courts might in such cases work serious hardship. Hence the propriety of the statute, which provides that in -case of the death of the party the statute “shall cease to run” for a specified time.

But the whole doctrine of suspending the running of the statute proceeds upon the hypothesis that there is no one in esse capable of bringing suit,— the courts having followed the maxim of the civil law, “ Contra, non valentum qgere, non currit jpreserijjtio.” It will not apply to a case where there is some one in esse Avho can bring the suit.

In this case a cause of action accrued to the plaintiff when the notes were transferred to him, and it Avas not taken from him by the death of Allison. AVithout discussing the subject, we conclude that the judgment should be affirmed.

Affirmed.

[Opinion adopted April 29, 1884.]