Graves v. . Howard

75 S.E. 998, 159 N.C. 594, 1912 N.C. LEXIS 346

• Court: Supreme Court of North Carolina
• Decided: October 9, 1912
• Status: Published

Opinion

Allen, J.

The learned counsel for the defendant referred us to the decisions of the highest courts of Indiana, New Jersey, Louisiana, Wisconsin, and Pennsylvania, holding that the statute of limitations does not run in' favor of the., husband against á claim owned by his wife, to which we have given careful and respectful consideration.

The cases from these courts rest upon the principle of the common law, that the wife cannot maintain an action against her husband, because of the unity of the person, o’r upon the ground that the removal of the common-law disability by statute generally does not confer upon the wife the right to sue the husband, in the absence of express legislative declaration to that effect, and as she cannot sue, the period of coverture is not counted against her.

If, therefore, the disability of marriage has been removed, and, in addition, the right to sue the husband has been conferred on the wife by statute in this State, it follows that the authorities relied on are not applicable, and the conclusion would seem to be inevitable, in the absence of an exception in the statute of limitations, that the period of coverture would be counted against the wife.

Under our Constitution and the Revisal, sec. 2093, the real and personal property of any female in this State, acquired before marriage, or to which, after marriage, she may .become in any manner entitled, is her sole and separate estate and property, freed from any debts, obligations, or engagements of her husband, and by chapter 78, Laws 1899, the disability of marriage was moved (Bond v. Beverly, 152 N. C., 63), and since then the statute of limitations runs against the wife during coverture.

The Revisal, sec. 408, further provides that the wife may maintain an. action without the joinder of her husband:

(1) When the action concerns her separate property.

(2) When the action is between herself and her husband; and our Court has construed this section to confer upon the wife the right to maintain an action against her husband. Shuler v. Millsaps, 71 N. C., 297; McCormac v. Wiggins, 84 N. C., 279; Manning v. Manning, 79 N. C., 293; Robinson v. Robinson, 123 N. C., 137; Perkins v. Brinkley, 133 N. C., 158.

The statutes of limitation contain no exception in favor of the wife when she holds a claim against her husband.

It therefore appearing that the common-law disability has been removed, that the wife may sue her husband, and that there is no exception in the statute of limitations, we are of opinion that the time from 6 May, 1907, to 1 November, 1908, must be counted against the defendant, and that the right of action is barred upon the note secured by the mortgage. This conclusion has been reached by other courts, under statutes similar to our own. Wilson v. Wilson, 95 Am. Dec., 197 (36 Cal., 447); Estate of Deaver, 106 Am. St., 375 (126 Iowa, 70).

Tbe Court says in the California ease: “How is the wifé to avail herself of the use of the property, or place it in the category of her separate estate, unless she can recover it from the debtor ? The debtor claims that the statute of limitations is running against her. How is she to avoid the bar, if sh¿ cannot sue, and the debtor will not pay without suit? There is no provision to prevent the statute running in such ■case. . . . Section 7 of the practice act authorizes the wife to sue alone ‘when the action concerns her separate property,’ and also ‘when the action is between herself and her husband.’ There is no limitation as to the kind of actions that may be maintained ‘between herself and her husband’; and section 395, as amended in 1865-66, authorizes the husband and wife to testify on their own behalf, or on behalf of each other, as witnesses in actions between themselves, except in actions of divorce. This provision contemplates that there may be actions between husband and wife other than those relating to divorces. What are they, unless relating to rights of property? Disputes with respect to property may arise between them when the separate existence of the wife, and a separate right of property, is recognized at law, as in this State, as well as other matters; and when they do arise there is as great necessity for a judicial determination of the questions as when they arise between other parties. A litigation of the kind between husband and wife may be unseemly and abhorreñt to our ideas of propriety, but a litigation in one form can be no more so than in another, and no more so than the necessity itself which gives rise to the litigation. The present policy of the law is to recognize the separate legal and civil existence of the wife, and separate rights of property, and the very recognition by the law of such separate existence, and rights at law as well as in equity, to hold and enjoy separate property, involves a necessity for opening the doors of the judicial tribunals to her, in order that the rights guaranteed to her may be protected and enforced”; and in the Iowa case: “No exception in behalf of married women, of actions against their husbands, is found in the statute of limitations. It provides that ‘actions may be brought within the times herein limited re spectively, after their causes accrue, and not afterwards, except when otherwise specially declared. . . . Those founded on written contracts . . . within ten years’; Code, sec. 3447. As all exceptions not 'otherwise specially declared’ are excluded, we are not permitted to insert any,.leven though-we might think that, owing to the relation of the husband and wife, she should be relieved from the necessity of pressing her claims' against her husband in order to keep them alive. That was a matter for legislative consideration, and does not constitute a reason for refusal by the courts to give effect to a specific statute to the contrary. . . . The cases cited from States where the common law prevails — that the husband may not sue the wife —are not in point, and those resting- on statutes somewhat similar to ours do not meet our approval.”

The case of Wilkes v. Allen, 131 N. C., 280, is not in conflict with this view, as it was decided before the disability of marriage was removed.

If, however, the rale was otherwise, and ordinarily the s1at-ute of limitations would not run in favor of the husband upon a contract with his wife, it appears in this case that the statute had begun t'o run before the wife became the owner of the note and mortgage, and as was said in Causey v. Snow, 122 N. C., 329: “The statute of limitations has begun to run before she received it, and her coverture did not stop it.”

The appellant further contends that, although the right of action- on the note' is barred, there was no limitation as to the power of sale prior to the Revisal of 1905 (Menzel v. Hinton, 132 N. C., 660) ; that this became a part of the contract, and that the act of the Legislature (Revisal, sec.’ 1044), declaring that'the power of sale in a mortgage shall be inoperative when the right of action to foreclose is barred, impairs the obligation of the contract and is unconstitutional and void.

The statute undoubtedly purports to deal with existing contracts, because it says“Whenever an action to foreclose any such mortgage or deed of trust is now barred by the statute of limitations the authority to execute the power of sale contained therein shall be barred on the first day of January, 1907.”

Did the Legislature have this power ?

It is true that laws in force at the time a contract is made become a part of the contiact, but this does not prevent a change in the remedy.

The rule, with its limitations, is well stated in Cooley Const. Lini., 402 et seqas follows: “Citizens have no vested right in the existing general laws of the State which can preclude their amendment or repeal, and there is no implied promise on the part of the State to protect its citizens against' incidental injury occasioned by changes in the law. . . . The obligation of a contract consists in its binding force on the party who makes it. This depends on the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no othér standard by which to ascertain the extent of either than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party to the injury of the other; hence any law which in its operations amounts to a denial or obstruction of the rights accruing'" by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution. It is the civil obligation of contracts which (the Constitution) is designed to reach; that is, the obligation which is recognized by, and results from, the law of the State in which it is made. . '. . Such being the obligation of a contract, it is obvious that the rights of the parties in respect to' it are liable to be affected in many ways by changes in the laws which it could not have been the intention óf the constitutional provision to preclude. 'There are few laws which govern the general police of a State, or the government of its citizens, in their intercourse with each other or with strangers,' which may not in some way or other affect the contracts which. ■ they have entered into or may thereafter form. For what are laws of evidence, or which concern remedies, frauds, and perjuries, laws of registration, and those which affect landlord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men,' and the charges of tavern-keepers, and a multitude of others which crowd the codes of every State, but laws which may affect the validity, construction, or duration, or discharge of contracts?’ But the changes in these laws are not regarded as necessarily affecting the obligation of contracts. Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract; and it does not impair it, provided it leaves the parties a substantial remedy, according to the course of justice as it existed at the time the contract was made. It has accordingly been held that laws changing remedies for the enforcement of legal contracts, or abolishing one remedy where two or more existed, may be perfectly valid, even though the new or the remaining remedy be less convenient than that which was abolished, or less prompt and speedy.”

The Supreme Court of the United States, in Terry v. Anderson, 95 U. S., 628, sustained a statute as reasonable which gave only nine months and seventeen days within which to enforce a claim, and said, upon the question now before us: “This Court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet., 457; Jackson v. Lamphire, 3 Pet., 280; Sohn v. Waterson, 17 Wall., 596, 21 I. Ed., 475; Sturges v. Crowninshield, 4 Wheat., 122. And it is difficult to see why, if the Legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more vested interest in a particular limitation which has been fixed than they have in an unrestricted right to sue. They have nO more a vested interest in the time for the commencement of an action than they have in the form of the action to. be commenced; and as to the forms of actions or modes of remedy, it is well settled that tbe Legislature may change them at its discretion, provided adequate means of enforcing the right remain. We have bad occasion to consider this subject at tbe present term, in Tennessee v. Sneed, not yet reported (post). In all such cases tbe question is one of reasonableness, and we have, therefore, only to consider whether tbe time allowed in this statute is, under all tbe circumstances, reasonable. Of that tbe Legislature is primarily tbe judge, and we cannot overrule tbe decision of that department of tbe Government, unless a palpable error has been committed. In judging of that, we must place ourselves in tbe position of tbe legislators and must measure tbe time of limitation in the midst of tbe circumstances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its particular facts.”

This case was approved in Koshkonong v. Burton, 104 U. S., 675, and in Turner v. New York, 168 U. S., 94, tbe Court saying in tbe last case: “It is well settled that a statute shortening the' period of limitation is within tbe constitutional power of tbe Legislature, provided a reasonable time, taking into consideration tbe nature of tbe case, is allowed for bringing an action after tbe passage of tbe statute and before the bar takes effect.”

Tbe same doctrine has been announced by our Court: “It is settled beyond controversy that while tbe Legislature has the power to extend or reduce tbe time in which an action may be brought, this is subject to tbe restriction that when tbe limitation is shortened 'a reasonable time must be given for tbe commencement of an action before tbe statute works a bar.’ Strickland v. Draughan, 91 N. C., 103, and cases there cited; Cooley Const. Lim., 450 (8th Ed.), and cases there cited.” Nichols v. R. R., 120 N. C., 497.

Tbe right to sell under tbe power did not expire under tbe statute for more than five years after its enactment, which was an ample protection of tbe rights of tbe parties.

¥e find no error.

Affirmed.