Wilson v. Wilson

By the Court, Sawyer, C. J. : On the 17th of September, 1856, the defendant, William Wilson, executed in favor of the plaintiff, Orpha Wilson, two promissory notes for the sums of one thousand dollars and one thousand three hundred dollars respectively, each payable five years after date. The notes consequently became due on the 20th of September, 1861, and a right of action then accrued, which had become barred by the Statute of Limitations, requiring an action to be commenced within four years, on the 22d of September, 1865, unless it was saved by some disability recognized by the statute, existing at the time the right of action accrued. This suit to recover the amount due on said notes was commenced on the 1st of [450]November, 1866—more than a year after the expiration of four years from the maturity of the notes.

In the year 1857, before the maturity of the notes, plaintiff and defendant intermarried, and they have ever since been, and they now are, husband and wife, and residents of said State. The sum due and the notes are the separate property of the wife

The complaint avers the facts stated. Defendant demurred, relying upon the grounds—firstly, that the cause of action is barred by the Statute of Limitations; secondly, that the facts stated do not constitute a cause of action ip favor of the wife against the husband. The District Court sustained the demurrer, and rendered judgment for defendant. Plaintiff appeals from the judgment.

Section twenty-three of the Statute of Limitations of 1850 provides that, “if a person entitled to bring an action mentioned in the last preceding chapter [which includes the case in question] * * * be, at the time the cause of action accrued, either, first, within the age of twenty-one years, * * * or, fourth, a married woman, the time of such disability shall not be a part of the time limited for the commencement of the action.” (Stats. 1850, p. 846, Sec. 23.) The fourth category of the twenty-third section was amended in 1863 by adding a clause, so that it now reads: “Fourth— A married woman, and her husband be a necessary party with her in commencing such action.” (Stats. 1863, p. 326, Sec. 5.) As the provision now stands, the statute runs against a married woman in all those actions to which her husband is not a necessary party with her in commencing the action, the same as against other parties. Under the Act, as it formerly stood, although a wife might sue alone with respect to her separate property, under the seventh section of the Practice Act, and there was, in fact, no absolute disability to maintain such actions, yet coverture was recognized as a disability by the twenty-third section of the Statute of Limitations, so far as the purposes of that Act are concerned. It as clearly excepted married women from the provisions of the Act,