Cross v. . Craven , 120 N.C. 331 ( 1897 )

It was error to charge that, though Mrs. Cross was an infant when her cause of action accrued and was married before arriving at age, she was barred by the statute of limitations from maintaining an action for the real estate because she had a legal guardian for seven years before her marriage. Section 148 of The Code provides that "If a person entitled to commence an action for the recovery of real property, c., is within the age of twenty-one years or a married woman, c., then such person may, notwithstanding the statute of limitations, commence his action within three years next after full age or discoverture," c. Here, the disability of coverture supervened upon that of infancy, and the statute of limitations is suspended in language too explicit to be capable of any other construction. Clayton v. Rose,87 N.C. 106. The defendant relies upon Culp v. Lee, 109 N.C. 675,678, but that has no application to actions for the recovery of realty, when the legal title is in the person under disability. In (333) Culp v. Lee it was contended that an executor, who had filed his final account many years before, was not protected by the statute, because the distributees were infants, but the court held that the distributees having had a general guardian, the executor, having been exposed to an action by him for the full period prescribed by the statute, was protected by the lapse of time. It was pointed out that in such case the guardian would be responsible on his bond from any loss resulting from his laches in failing to sue (Code, sec. 1593), but the guardian bond is not responsible in any way for the realty beyond the rents and profits. Code, sec. 1574. By special provision, he is made liable for land forfeited for taxes (Code, sec. 1595), but there is not similar provision of liability for failure to bring an action for realty under The Code, 1588. Where real estate is held by a trustee, the legal title being in him, if he is barred the cestui quetrust is also. King v. Rhew, 108 N.C. 696; Clayton v. Cagle, 97 N.C. 300. But a guardian does not hold the legal title to the real estate and is not a trustee thereof, though charged with duties concerning it, as payment of taxes, leasing, preventing waster, c.

The error, however, is a harmless one in this instance, as Mrs. Cross' father, not having held the land adversely under color of title — the only title set up — for seven years prior to the suspension of the statute in May, 1861, she cannot recover, and besides, she is estopped by having been a party to the proceedings to sell the realty as the property of John M. Pharr (Morrison v. Craven, ante, 327, which rests upon the same facts).

We only pass upon this assignment of error because of its importance and the zeal with which it has been pressed.

Affirmed.

(334)