Orva Aus, his daughter from a prior marriage, appealed from the decision to the circuit court which affirmed the decision of the county court. The question whether the statute of limitations applies to a wife with reference to a claim against her husband is presented to this court for the first time. An extensive note on the subject appears in 121 A.L.R. 1382, following the reported opinion of Cary v. Cary, 159 Or. 578, 80 P.2d 886, 121 A.L.R. 1371. The annotation in 121 A.L.R. concludes in the absence in a statute of limitation of a saving clause in favor of married women or a clause that excepts them from the operation of the statute during coverture, the question whether the statute begins to run during the continuance of the marriage relation "has quite generally been answered to the effect that the statute does not run" (p. 1384) and "by the great weight of authority the rule that the statute of limitations is inapplicable between husband and wife applies notwithstanding the married woman's acts abolishing most of the common-law disabilities of feme covert" (p. 1393). See also 34 Am.Jur., Limitation of Actions, § 377. Though holding the statute of limitations applied the intermediate court of appeals, in Lange v. Lange, 1949, Ohio App., 91 N.E.2d 546, 56 Ohio Law Abst. 190, recognized "the weight of authority outside of Ohio is against our holding".
In an action by a wife for the recovery of her property from her husband, statutes of limitation do not affect her rights "since she cannot be expected to treat her husband as a stranger." ( Cary v. Cary, 159 Ore. 578, [ 80 P.2d 886, 121 A.L.R. 1371].) [6] Finally, the demurrers were properly overruled.
"In an action by a wife for the recovery of her property from her husband, statutes of limitation do not affect her rights `since she cannot be expected to treat her husband as a stranger! Cary v. Cary, 159 Or. 578, 80 P.2d 886, 895, 121 A.L.R. 1371 * * *."
Collateral policies, unrelated to capacity to bring suit, may justify tolling provisions. See, e.g., Hampton v. Hampton Holding Co., 17 N.J. 431, 111 A.2d 761 (1955) (discouraging interspousal law-suits); Cary v. Cary, 159 Ore. 578, 80 P.2d 886, 121 A.L.R. 1371 (1938) (same). The legislature may have had some such policy reason for failing to amend RCW 4.16.190 in 1970.
, cites: As to the statute of limitations being a barto the recovery by the wife of an indebtedness allegedly dueher from her husband's estate: South Carolina Code Section 10-141; 211 S.C. 282, 44 S.E.2d 833; 41 Am. Jur. 2d, Section 520; 140 S.E.2d 708 at page 713; 159 N.C. 594, 598, 75 S.E. 998, 1000; 103 N.C. 189, 9 S.E. 298; 155 Kan. 388, 125 P.2d 354. Messrs. Thomas E. McCutchen and R. Davis Howser, ofWhaley, McCutchen, Blanton Dent, Columbia, for Respondent, cite: As to the statute of limitations being inapplicableto a debt owed by the husband to his wife where thehusband and wife resided together continuously until hisdeath so that the duly filed claim of the wife may be paid: Anno. — Husband and Wife — Limitation, Laches, 121 A.L.R. 1382; 41 Am. Jur.2d "Husband and Wife" Sec. 520; 262 Pa. 192, 105 A. 83; 424 Pa. 120, 224 A.2d 164; 141 N.J. Eq. 584, 58 A.2d 604; 117 N.J. Eq. 475, 176 A. 571; 105 Ind. 410, 5 N.E. 718; 15 Ind. App. 199, 43 N.E. 965; 8 Ind. App. 356, 35 N.E. 713; 159 Or. 578, 80 P.2d 883; 262 Pa. 192, 105 A. 83; 156 P.2d 830; 470 P.2d 921; 56 N.M. 675, 248 P.2d 783; 53 N.M. 480, 211 P.2d 776; 160 P.2d 121; 160 A.2d 804; 6 Md. 417, 61 Am. Dec. 318; 299 P. 323; 96 W. Va. 337, 123 S.E. 53. John H. Hydrick, Jr., Esq., of West Columbia, for Appellants, in Reply. July 17, 1974.
A review or citation of all the authorities would unduly prolong this opinion. See the following cases in point: Larson v. Carter, 14 Idaho 511, 94 P. 825; Smiley v. Smiley, 46 Idaho 588, 269 P. 589; Strong v. Strong, 136 N.J.Eq. 103, 40 A.2d 548; Cary v. Cary, 159 Or. 578, 80 P.2d 886, 121 A.L.R. 1371; Holtze v. Holtze, 2 Cal.2d 566, 42 P.2d 323; Dunn v. Mullan, 211 Cal. 583, 296 P. 604, 77 A.L.R. 1015; Eaton v. Davis, 165 Va. 313, 182 S.E. 229; Shaw v. Bernal, 163 Cal. 262, 124 P. 1012; Chandler v. Chandler, 112 Cal.App. 601, 297 P. 636; Provost v. Provost, 102 Cal.App. 775, 283 P. 842; Leach v. Leach, 167 Minn. 489, 209 N.W. 636; Brown v. Brown, 58 Ariz. 333, 119 P.2d 938; Lovin v. Woodward, 45 Ariz. 105, 40 P.2d 102; Walsh v. Walsh, 56 Cal.App.2d 801, 133 P.2d 416; Seligman v. Seligman, 85 Cal.App. 683, 259 P. 984; 41 C.J.S., Husband and Wife, § 479, Subd. g, page 1019; 11 Am.Jur. 199, Secs. 39 and 40. The rights of the wife where a husband improves his own separate property with funds belonging to the community present an entirely different proposition than where the improvements are placed on the wife's separate property.
It is the policy of the Law to prevent litigation between husband and wife, not to promote it as would be the case if the wife had to sue her husband to avoid limitations and laches. Cary et al. v. Cary, 159 Or. 578, 80 P.2d 886, 121 A.L.R. 1371, and Bennett v. Finnegan, et al., 72 N.J. Eq. 155, 65 A. 239. See also Annotation in 121 A.L.R. 1384, and Torrez et al. v. Brady et al., 37 N.M. 105, 19 P.2d 183, where we held that limitations do not run by adverse possession as between husband and wife. The plaintiffs cite the case of Primus v. Clark, 48 N.M. 240, 149 P.2d 535, in support of their claim that limitations and laches run as between husband and wife. The parties in that case had been divorced for more than the applicable statutory period, and in addition only one member of this court concurred with the writer of the opinion, the other three merely concurring in the result. That case is not authority here.
The second, third and fourth propositions pleaded in plaintiff's complaint stand on an entirely different footing. It is there asserted that plaintiff's separate property was acquired by the husband and is reflected in the inventory of the estate of decedent. Under the doctrine of Hughes v. Helzer, 182 Or. 205, 185 P.2d 537, Cary v. Cary, 159 Or. 578, 80 P.2d 886, 121 ALR 1371, and Rhodes v. Peery, 142 Or. 165, 19 P.2d 418, plaintiff's complaint states a cause of suit. Reversed with direction to overrule the demurrers. HAY, J., considering himself disqualified, did not participate in this decision.
It is the policy of the Law to prevent litigation between husband and wife, not to promote it as would be the case if the wife had to sue her husband to avoid limitations and laches. Cary et al. v. Cary, 159 Or. 578, 80 P.2d 886, 121 A.L.R. 1371, and Bennett v. Finnegan, et al., 72 N.J. Eq. 155, 65 A. 239. See also Annotation in 121 A.L.R. 1384, and Torrez et al. v. Brady et al., 37 N.M. 105, 19 P.2d 183, where we held that limitations do not run by adverse possession as between husband and wife.
The point was first considered in the case of Banfield v. Schulderman, 137 Or. 256, 299 P. 323, 3 P.2d 116, wherein this court held that such statute had no application to transactions between husband and wife. The rule thus laid down was restated more elaborately in Cary v. Cary, 159 Or. 578, 80 P.2d 886, 121 A.L.R. 1371, wherein we said: "It is evident that whether the doctrine of Banfield v. Schulderman, supra, be sound or not, it takes its root in considerations of public policy and is quite independent of statutory provisions with regard to the disabilities of coverture.