* Corpus Juris-Cyc References: Limitation of Actions, 37CJ, p. 746, n. 72. This is an appeal from a judgment in favor of the defendant, in an action of replevin instituted by the appellant in the circuit court of Lafayette county, seeking to recover from the defendant the possession of certain household goods.
The record discloses that the appellant is the father of the appellee, and is now very old. Some time prior to 1920 the appellee acquired title to the residence which for a long time had been the family home. The appellant and his wife, however, continued to reside in this *Page 903 home with the family of his son, the appellee, until November, 1920, when, on account of some domestic trouble, he separated from his wife and left the home. The testimony for the appellant was to the effect that all of the personal property at issue was purchased by and belonged to him, and that, when he separated from his wife in 1920, he left this property in the possession of his wife for her use and benefit during her lifetime, and that she retained possession thereof until her death in December, 1922. Thereafter the appellant demanded possession of the property, and, upon the appellee's refusal to surrender possession thereof, this suit was instituted. At the conclusion of the testimony for the plaintiff, the court below granted a peremptory intruction in favor of the defendant on the ground that the action was barred by section 3099, Code of 1906 (section 2463, Hemingway's Code), which provides that:
"Actions on an open account or stated account not acknowledged in writing, signed by the debtor, and on any unwritten contract, expressed or implied, shall be commenced within three years next after the cause of such action accrued, and not after."
We do not think this statute has any application to the facts here involved. This action is purely possessory, and the right to the possession of the property here involved depends upon the ownership thereof or title thereto, and is not based upon an open account or stated account or oral contract, express or implied. The court below seems to have held that all actions of replevin are barred by this three-year statute of limitation, and the appellant so contends, and relies upon the case of Young v.Salley, 83 Miss. 362, 35 So. 571, to support this contention. This case, however, did not so hold, but it merely held that the vendor of personal property under a conditional sales contract may recover the property from a purchaser from the conditional vendee unless "possession for three years had made the statute of frauds applicable;" that is, applicable for the protection *Page 904 of the purchaser and not the original vendee. We know of no statute under which the title to personal property may be acquired by possession for a period of three years, or that limits the right to maintain replevin to three years, except in cases where the rights of creditors or purchasers of the persons in possession have intervened, and the statute which preserves the rights of such creditors or purchasers is a statute of frauds, being section 4777, Code of 1906 (section 3121, Hemingway's Code).
The judgment of the court below will therefore be reversed, and the cause remanded,
Reversed and remanded.
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