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

Feb. 1897 · Supreme Court of North Carolina
120 N.C. 331

D. B. CROSS and wife et als. v. R. P. CRAVEN.

Action to Recover Land — Infant With Guardian — Coverture— Statute of Limitations.

1. A guardian having no title to the land of his ward, it is not his duty to sue for the recovery of realty ; hence,

2. The fact that an infant, after the accrual of her right of action for land, had a guardian for seven years before her marriage, which was before her majority, and that neither she nor her guardian brought action within that time, does not bar an action by her for the recovery of the land.

Civil aotioN, for the recovery of land, commenced in April, 1892, and tried before Norwood, Y, and a jury, at June, 1895, Term of Oabareds (Superior Court. The facts are the same as in the case of Morrison, et al., v. Craven, *332 ante., except that it appeared on the trial that the feme plaintiff, Cross, bad a guardian from ber early infancy in 1862 until after ber marriage, wbicb was during ber minority. His Honor charged that “if tbe jury should find that tbe plaintiff, Louisa Cross, bad a legal guardian from her early infamcy, in 1862, until after her marriage with D. B. Cross and was a minor at tbe time of ber marriage, then she is barred by tbe Statute of Limitations and cannot recover: so, if she bad a legal guardian for seven years before ber marriage.” Tbe jury so found, andjudgment was rendered against tbe plaintiffs, Cross and wife, who appealed.

Messrs. Jones <& Boykin, for plaintiffs (appellants).

Messrs. W. Q. M.eans and Burwell, Walker (& Cansler, for defen dant.

CjdakK, J.:

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 tbe Statute of Limitations from maintaining an action for tbe real estate because she bad a legal guardian for seven years before ber marriage. Section 148 of The Oode provides that “If a person entitled to commence an action for tbe recovery of real property, <&c., is within the age of 21 years or a married woman, &c., then such person may, notwithstanding tbe Statute of Limitations, commence bis action within three years next after full ageordiscoverture,” &c. Here tbe 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. Tbe defendant relies upon Culp v. Zee, 109 N. C., 675, 678, but that has no application to actions for the recovery of realty *333when the legal title is in the person under disability. In 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 distributess 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 {Gode, Sec. 1593), but the guardian bond is not responsible in anv way for the realty beyond the rents and profits. Code, Sec. 1574. By special provision, he is made liable for land forfeited for taxes {Gode, Sec. 1595), but there is no similar provision of liability for failure to bring an action for realty under The Gode, 1588. Where real estate is held by a trusteee, the legal title being in him, if he is barred the eestui gv,e trust 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 concern: ing it, as payment of taxes, leasing, preventing waste, &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., at this term, 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.

Affirm ed.