Wright v. Zitrouer

Supreme Court of Georgia

Wright v. Zitrouer

55 Ga. 85

CourtSupreme Court of Georgia

DecidedJuly 15, 1875

StatusPublished

Cited by1 cases

This text of 55 Ga. 85 (Wright v. Zitrouer) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wright v. Zitrouer, 55 Ga. 85 (Ga. 1875).

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Opinions

Warner, Chief. Justice.

This was a petition to foreclose a mortgage on certain desscribed lands in the county of Effingham.- The defendant pleaded the statute of limitations of 1869 in bar thereof. The court overruled the plea of the statute, and the defendant excepted. It appears from the bill of éxceptions that the defendant’s intestate executed the mortgage in 1855, to secure the payment of a promissory note, due in 1860; that in 1861 Mrs. Weitman, the mortgagee, died, that the two qualified executors on her-estate died in 1867, and from that time until 1874 the estate of,Mrs Weitman remained unrepresented, when the present plaint iff became her administrator, and filed his petition to foreclose the mortgage. By the strict letter of the act of 1869 the plaintiff’s right of action was-barred, but it is insisted that the court should give to that act an equitable construction, in view of the provisions of the Code in relation to the statute of limitations applicable to unrepresented estates. By the 2928th section of the Code, the time occurring between the death of a person and representation on his estate, or between the termination of one administration and the commencement of another, shall not be counted against his estate, provided such time does not exceed five years, but at the expiration of that time the limitation shall commence, etc. In this case the statute commenced to run against the plaintiff on the 21st of July, 1868, when civil government, was restored in this state, and more than six years had expired from that date to 1874, when the plaintiff took out letters of administralion, the estate being unrepresented from 1867 up to that time. In view of the facts of this case, and of the provisions of the act of 1869, the most equitable construction which we are authorized to give to it, is to hold that the plaintiff had nine months and fifteen days after the passage of the act of 1869 within which time to have taken out administration, and to have commenced his action against the defendant, and not having done so within that time, his right of action was barred.

Let the judgment of the court below be reversed.

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Warner, Chief. Justice.

This was a petition to foreclose a mortgage on certain desscribed lands in the county of Effingham.- The defendant pleaded the statute of limitations of 1869 in bar thereof. The court overruled the plea of the statute, and the defendant excepted. It appears from the bill of éxceptions that the defendant’s intestate executed the mortgage in 1855, to secure the payment of a promissory note, due in 1860; that in 1861 Mrs. Weitman, the mortgagee, died, that the two qualified executors on her-estate died in 1867, and from that time until 1874 the estate of,Mrs Weitman remained unrepresented, when the present plaint iff became her administrator, and filed his petition to foreclose the mortgage. By the strict letter of the act of 1869 the plaintiff’s right of action was-barred, but it is insisted that the court should give to that act an equitable construction, in view of the provisions of the Code in relation to the statute of limitations applicable to unrepresented estates. By the 2928th section of the Code, the time occurring between the death of a person and representation on his estate, or between the termination of one administration and the commencement of another, shall not be counted against his estate, provided such time does not exceed five years, but at the expiration of that time the limitation shall commence, etc. In this case the statute commenced to run against the plaintiff on the 21st of July, 1868, when civil government, was restored in this state, and more than six years had expired from that date to 1874, when the plaintiff took out letters of administralion, the estate being unrepresented from 1867 up to that time. In view of the facts of this case, and of the provisions of the act of 1869, the most equitable construction which we are authorized to give to it, is to hold that the plaintiff had nine months and fifteen days after the passage of the act of 1869 within which time to have taken out administration, and to have commenced his action against the defendant, and not having done so within that time, his right of action was barred.

Let the judgment of the court below be reversed.

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Bluebook (online)

55 Ga. 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-zitrouer-ga-1875.

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