Harris v. Phelps , 2 Miss. Dec. 173 ( 1881 )

Opinion.

Chalmers, C. J.:

We understand the bill as setting up the fact that lands named in it were bought with trust funds which were invested in them by complainant’s trustee with the knowledge of the person by a devise from whom defendants now hold them. The facts set forth seem sufficient to support the bill. We will notice the several points raised against it by the demurrer and pressed in the brief of counsel for defendants.

1. The bill is not barred by the statute of limitations so far as shown by its own allegations. Complainant became of age in 1863. There was at the time no statute of limitations in this State. Before the statute commenced to run she married and has been ever since a femme covert. If this be true, the statute had not begun to run when the bill ivas filed.

2. No such laches can be imputed to her as will cause a rejection of her demand as being stale. She shows that she has been for many years attempting to assert it in different actions, all of which have been defeated. Whatever other defenses may grow out of this fact, it certainly rebuts the charges of laches. Even if this were not true, we are by no means prepared to affirm that where the rights of third parties have not intervened there can be in this State any such thing as the defeat of a just, legal, or equitable demand, by reason of any delay in its assertion, short of that which constitutes a bar under the statute of limitations.

3. We cannot say that complainant is estopped to litigate the present claim because she could have asserted it and failed to do so in the, previous litigation between the parties. The records of those suits are not before us, nor are we advised as to their scope and effect. If relied on as constituting res adjudicata, they must be set up by plea or answer.

4. Eor the same reason we cannot notice the suggestion that the estate of Henry Vick was entirely solvent and that complainant obtained a large part of that estate in the 'shape of slaves and other personal property, and is now precluded, after that estate has perished through no default of defendant, from coming on the devisee for payment of this demand. This question must be raised by the further pleading in this case. There is nothing to suggest it on the face of the bill.

5. Even though the debt was barred as against complainant’s trustee, it was not so as to her, according to the repeated decisions of this court. The law is otherwise under the Code of 1880, § 2694..

6. There is nothing in the bill to suggest the idea that there was any accounting and settlement of the demand propounded here by and between complainant’s trustee and the executor of Henry Vick’s will. The latter is merely stated to have made a partial payment on the note or bond. If there was such settlement, it must be pleaded by defendants.

Decree affirmed and sixty days given to answer.