TRAER and another v. CLEWS.
6 S.Ct. 155
115 U.S. 528
29 L.Ed. 467
TRAER and another
Filed November 23, 1885.
Henry Clews, the defendant in error, on January 17, 1878, brought this suit in the circuit court of Linn county, Iowa, against John W. Traer and others, to recover the value of 50 shares, of $1,000 each, of capital stock in the Cedar Rapids North western Construction Company, and the dividends which had been declared thereon. The stock had been originally subscribed and owned by Clews. The construction company was organized in 1870. The dividends sued for were declared, $10,000 in December, 1873, and $500 in January, 1874, and were in the treasury of the company ready to be paid out to the holder of the stock. On November 28, 1874, Clews was adjudicated a bankrupt, and his stock in the construction company, with the dividends which had been declared thereon, passed to J. Nelson Tappan, trustee of his bankrupt estate. In February, 1875, the construction company went into voluntary dissolution and liquidation, and John W. Traer, John F. Ely, and William Green were appointed trustees to settle up its affairs and divide its assets among its stockholders, according to their interest therein. Traer, knowing that the dividends above mentioned had been declared, and the same being unknown to Clews and Tappan, his trustee in bankruptcy, on March 4, 1876, for the consideration of $1,200, through the intervention of one Armstrong, who did not disclose his agency, purchased of Tappan, the trustee, the 50 shares of stock above mentioned. Traer alleged, and it appeared, that the purchase was made by him for his wife, Mrs. Ella D. Traer. Afterwards, on December 6, 1877, Tappan, the trustee in bankruptcy, assuming, as it may be supposed, that the sale of the stock made at the instance of Armstrong was void for fraud, sold all his claims and demands on account of the stock to Clews, who, on January 17, 1878, brought this suit. John W. Traer and others, who had been officers and trustees of the construction company, were made defendants to the original petition. The defendants demurred to the petition on the ground that it did not state facts sufficient to entitle the plaintiff to the relief demanded. The court overruled the demurrer. Afterwards, the plaintiff having discovered that, on March 4, 1876, the stock in the construction company had been assigned to Ella D. Traer, on October 28, 1879, amended his petition by making her a party defendant to his suit. Upon final hearing in the circuit court for Linn county the suit was dismissed as to all the defendants except John W. Traer and Ella D. Traer, and judgment was rendered against them for $15,000. Traer and his wife appealed from this judgment to the supreme court of Iowa, which affirmed the judgment of the circuit court. By the present writ of error Traer and wife ask a review of the judgment of the supreme court of Iowa.
N. M. Hubbard and Chas A. Clark, for plaintiffs in error, John W. Traer and another.
[Argument of Counsel from pages 529-533 intentionally omitted]
L. Deane and Frank G. Clark, for defendant in error, Henry Clews.
The defendant in error questions the jurisdiction of this court. As the record shows that the plaintiff in error dispute the validity of a transfer to the defendant in error of the property in controversy, made to him by a trustee in bankruptcy, appointed under and deriving his authority from the bankrupt act, and as the question is made whether the suit is barred by the limitation prescribed by the same act, we are of opinion that the jurisdiction of the court to decide these questions is clear. Factors' Ins. Co. v. Murphy, 111 U. S. 738; S. C. 4 Sup. Ct. Rep. 679; New Orleans R. Co. v. Delamore, 114 U. S. 501; S. C. 5 Sup. Ct. Rep. 1009.
The record does not leave it in doubt that the purchase by Traer from Tappan of the rights incident to the stock in the construction company belonging to the bankrupt estate of Clews was brought about by the fraudulent practices of Traer. As stated by the supreme court of Iowa, he was a stockholder, officer, and trustee of the construction company, and had been, from the first, actively engaged in the management of its affairs. As trustee he was solely intrusted with the custody of the assets, books, and papers of the corporation, and had full and complete knowledge of all matters pertaining to the assets and business of the company. He knew that the plaintiff or his bankrupt estate was entitled to dividends amounting to at least $10,500, received by Traer upon entering upon the discharge of his duties as trustee. The assets of the company, much of them being in money, he held as a trustee for the stockholders, being so constituted by the act of dissolution of the corporation. He misrepresented the value of these assets to both Tappan and Clews, and induced them to believe that the sum to which they were entitled did not greatly exceed $1,200 in value, the amount of the consideration of the assignment of the stock by Tappan. He employed attorneys and agents to negotiate for the purchase of the stock, who concealed from Tappan that the purchase was made for Traer or his wife. These agents knew that they were making the purchase for Traer or his wife, and neither of them at any time was a good-faith purchaser. In all of the transactions connected with the purchase of the stock Traer acted as the agent of his wife, who knew that her husband was a trustee holding the assets for the stockholders of the construction company, and knew their value, and was guided in her purchase by his advice and direction. She knew that Tappan was ignorant of the value of the assets, and she had knowledge of the devices used by her husband to secure the purchase of the stock and dividends. By means of these fraudulent devices she purchased from Tappan, for the price of $1,200, property which the state circuit court found to be of the value of $15,000. The charge of fraud made in the petition was therefore fully sustained.
Among other defenses pleaded by Ella D. Traer was the following: 'That plaintiff's pretended right of action herein accrued in favor of plaintiff's assignor, J. Nelson Tappan, as trustee in bankruptcy of plaintiff's estate, more than two years before the commencement of this suit against this defendant, and more than two years before she was made a party defendant herein, and that this action is fully barred as to her by the provisions of the act of congress in that behalf, and was so barred before she was made a party defendant herein.' This plea sets up the bar prescribed by the second section of the bankrupt act, now forming section 5057 of the Revised Statutes, which declares: 'No suit, either at law or in equity, shall be maintained in any court between an assignee in bankruptcy and a person claiming an adverse interest touching any property or rights of property transferable to or vested in such assignee, unless brought within two years from the time the cause of action accrued for or against such assignee.' The suit was brought against John D. Traer within two years after the fraudulent purchase and transfer of the stock and dividends, but Mrs. Traer was not made a party to the suit until after the lapse of three years and a half from the time of the purchase and transfer. The question is presented by one of the assignments of error whether, upon the circumstances of this case, the suit was barred as to Mrs. Traer.
The amended petition filed in the case on October 28, 1879, the day after Mrs. Traer had been made a defendant, averred that John W. Traer, while holding the office of trustee of the construction company, falsely represented to Tappan that there were no dividends due the estate of Clews from the stock held by him in the construction company, and falsely and fraudulently concealed from him the true condition of the company with the intent of undervaluing the stock and dividends declared thereon; that Traer and his wife employed one Armstrong to purchase for Mrs. Traer the said stock and dividends; that Armstrong took from Tappan an assignment of the certificate of stock to Mrs. Traer; that he forwarded the certificate to one Howard, whom Traer and his wife had previously employed, and Howard, following the instructions of Traer and his wife, carried the certificate to the headquaters of the construction company at Cedar Rapids, and demanded of Traer, as trustee, the dividends and interest thereon; whereupon Traer paid over to Howard, his own and his wife's attorney, the sum of $11,913.75 on account of said dividends and interest, and Howard, while pretending to act for Armstrong, 'carefully concealed, from those who might inform the said plaintiff's trustee in bankruptcy, and from the papers and receipts, that he was acting as the attorney for John W. Traer and Ella D. Traer his wife,' and that after receiving said sum of money, and receipting the vouchers prepared by Traer, as trustee, he paid back the money to Traer and his wife, less the amount of his own share as co-conspiratory and attorney. Afterwards, it was alleged, Traer transferred the stock to his wife upon the books of the company. These averments show, not only a fraudulent concealment of the value of the stock and dividends from Tappan by Traer, acting as agent for his wife, but a carefully devised plan by which the payment of the dividends to Mrs. Traer was concealed from Tappan, and no trace of such payment left upon the books and vouchers of the construction company. Subsequently, and before the trial of the case, the following amendment was made to the petition: 'That as to the matters and things herein set forth as a cause of action against the said Ella D. Traer, the said fraudulent transactions with which she was connected and her part therein were studiously concealed from the plaintiff and his assignor, and he had no means of discovering the same, nor had his assignor any means of discovering the same until the same were disclosed upon the examination of John W. Traer, as witness in this action, on the twenty-fourth day of September, 1879; that the plaintiff and his assignor did not know of the said fraud and the fraudulent acts of the defendant Ella D. Traer until the same were made known on the said examination.' No issue was taken on this amendment.
The state court having entered a general finding and judgment against the defendants, John W. Traer and Ella D. Traer, his wife, the facts set out in the pleadings of the plaintiff, so far as they are necessary to support the judgment, must be taken as established by the evidence. The question is, therefore, do the facts alleged constitute a good reply to the plea of the two-years limitation filed by Mrs. Traer? We think they do. The fraud by which Mrs. Traer succeeded in purchasing from Tappan for $1,200 property to which he had the title worth $15,000, must necessarily have been a fraud carried on by concealment from Tappan of the true value of the property purchased. Such is the averment of the plaintiff's pleadings. But not only was fraudulent concealment in accomplishing the fraudulent purpose averred, but also a studious concealment from the plaintiff, Clews, and Tappan, the trustee, of the connection of Mrs. Traer with the fraud, and their want of means to discover the fraud, until it was revealed by the examination of John W. Traer, on September 24, 1879. The case is substantially the same, so far as the question now in hand is concerned, as that of Bailey v. Glover, 21 Wall. 342. The averment of fraudulent concealment in that case was, as shown by the report, as follows: 'The bill alleged that the defendants kept secret their said fraudulent acts, and endeavored to conceal them from the knowledge, both of the assignees and of the said Winston & Co., creditors of the bankrupt, whereby both were prevented from obtaining any suflicient knowledge or information thereof until within the last two years, and that, even up to the present time, they have not been able to obtain full and particular information as to the fraudulent disposition made by the bankrupt of a large part of his property.' The court in that case, upon demurrer, held in effect that these averments were sufficient to take the case from the operation of the same limitation which is set up in the present case. In delivering the judgment of the court, Mr. Justice MILLER said: 'We hold that, when there has been no negligence or laches on the part of a plaintiff in coming to a knowledge of the fraud, which is the foundation of the suit, and when the fraud has been concealed, or is or such character as to conceal itself, the statute does not begin to run until the fraud is discovered by or becomes known to the party suing or those in privity with him.'
So in the case of Rosenthal v. Walker, 111 U. S. 185, S. C. 4 Sup. Ct. Rep. 382, the plaintiff averred that 'both the said Carney and the defendant kept concealed from him, the said plaintiff, the fact of the said payment and transfer of the aggregate sum of $30,000, * * and the fact of the sale, transfer and conveyance of the said goods, * * * and that he, the said plaintiff, did not obtain knowledge and information of said matter until the twenty-ninth day of November, 1879, and then, for the first time, the said matters were disclosed to him, and brought to his knowledge.' These averments were held sufficient on exception to the petition to take the case out of the bar prescribed by section 5057 of the Revised Statutes. The case of Bailey v. Glover has never been overruled, doubted, or modified by this court. On the contrary, in Rosenthal v. Walker it was reaffirmed, and was distinguished from the case of Wood v. Carpenter, 101 U. S. 135, relied on by the appellants. The authorities cited are in point, and fully support our conclusion that, upon the pleadings and evidence, the suit of the plaintiff was not barred by the limitation prescribed by section 5057 of the Revised Statutes.
The next contention of the appellants is that the transfer executed by Tappan to Clews was not a sale to him of a right of property in the stock of the construction company, and of the dividends, but merely the transfer of a right to sue Traer and his wife for a fraud, and was therefore void. The assignment was as follows: 'In consideration of the sum of $1 to me paid by Henry Clews, the receipt whereof is hereby acknowledged, and for other good and valuable considerations, I hereby sell, assign, transfer, and set over unto the said Henry Clews any and all claims and demands of every name, nature, and description that I may now have or be entitled to on account of the fifty shares of the capital stock in the Cedar Rapids & Northwestern Construction Company, which was subscribed for said Henry Clews.' This paper will not, in our opinion, bear the construction put upon it by the appellants. Treating the transfer to Mrs. Traer as void, its evident purpose is to assign to Clews whatever property and rights were incident to the ownership of the stock. When this paper was executed, the corporation known as the construction company had been dissolved, and its affairs were in the course of liquidation. The ownership of the stock simply entitled the holder to a proportionate interest in the unpaid dividends which had been declared before the dissolution of the company, and to a pro rata share of the proceeds of the company's assets, and in this consisted its sole value. The language of the assignment, by which Tappan undertook to transfer to Clews all claims and demands which Tappan then had or might be entitled to on account of the 50 shares of stock in the company which had been subscribed by Henry Clews, was aptly chosen to convey the dividends which had been declared, and an interest in the property of the company in proportion to the 50 shares of stock. It did not transfer a mere right to sue Traer and his wife. That right was simply an incident to the transfer of substantial and tangible property.
The rule is that an assignment of a mere right to file a bill in equity for fraud committed upon the assignor will be void as contrary to public policy and savoring of maintenance. But when property is conveyed, the fact that the grantee may be compelled to bring a suit to enforce his right to the property does not render the conveyance void. This distinction is taken in the case of Dickinson v. Burrell, L. R. 1 Eq. 337. The facts in that case were that a conveyance of an interest in an estate had been fraudulently procured from Dickinson, by his own solicitor, to a third party for the solicitor's benefit, and for a very inadequate consideration. Dickinson, ascertaining the fraud by a conveyance which recited the facts, and that he disputed the validity of the first conveyance, transferred all his share in the estate to trustees for the benefit of himself and children. The trustees filed a bill to set aside the fraudulent conveyance, upon repayment of the consideration money and interest, and to establish the trust. The master of the rolls, Lord ROMILLY, in sustaining the bill, said: 'The distinction is this: If James Dickinson had sold or conveyed the right to sue to set aside the indenture of December, 1860, without conveying the property, or his interest in the property, which is the subject of that indenture, that would not have enabled the grantee, A. B., to maintain this bill, but if A. B. had bought the whole interest of James Dickinson in the property, then it would. The right of suit is a right incidental to the property conveyed.' The master of the rolls then refers to the cases of Cockell v. Taylor, 15 Beav. 103, and Anderson v. Radcliffe, El., Bl. & El. 806, where he says the same distinction is taken.
The rule was expounded by Mr. Justice STORY in Comegys v. Vasse, 1 Pet. 193, as follows: 'In general it may be affirmed that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment, and that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adherent to the property, may pass by assignment.' In Erwin v. U. S., 97 U. S. 392, Mr. Justice FIELD, who delivered the opinion of the court, said: 'Claims for compensation for the possession, use, or appropriation of tangible property constitute personal estate equally with the property out of which they grow, although the validity of such claims may be denied, and their value may depend upon the uncertainties of litigation or the doubtful result of an appeal to the legislature.' And see McMahon v. Allen, 35 N. Y. 403, decided in the state where the assignment in question was made. Weire v. City of Davenport, 11 Iowa, 49, and Gray v. McCallister, 50 Iowa, 498, decided in the state where the suit was brought. See also a discussion of the subject in Graham v. Railroad Co., 102 U. S. 148. Applying the rule established by these authorities, we are of opinion that, so far as the question under consideration is concerned, the assignment of Tappan to Clews was the transfer, not merely of a naked right to bring a suit, but of a valuable right of property, and was therefore valid and effectual.
It is next insisted by the plaintiffs in error that Clews acquired no title to the dividends and other property which Tappan attempted to transfer to him, because (1) he had not been discharged as a bankrupt at the time of the transfer, and (2) because Tappan had no authority to sell the stock and its dividends for a bond or obligation to pay, as the evidence shows was the case, but only for cash. Whether Clews had been discharged at the date of the trans fer to him is immaterial. After his adjudication as a bankrupt, and the surrender of his property to be administered in bankruptcy, he was just as much at liberty to purchase, if he had the means, any of the property so surrendered as any other person. The policy of the bankrupt act was, after taking from the bankrupt all his property not exempt by law, to discharge him from his debts and liabilities, and enable him to take a fresh start. His subsequent earnings were his own. A bankrupt might often desire, out of the proceeds of his exempted property, or out of his means earned since his bankruptcy, to purchase property which he has surrendered to the assignee. This he might do, and there is nothing in the letter or policy of the bankrupt act which forbid his doing so until after his discharge. For, having complied with the law, as it must be presumed he has, he is, after the lapse of six months, entitled, as a matter of course, to his discharge. His right to purchase property surrendered cannot, therefore, depend on his actual discharge, and, in this respect, he stands upon the same footing as any other person.
As to the second ground upon which the validity of the title of Clews is questioned, it is sufficient to say that, by the bankrupt law, section 5062, Rev. St., it is provided: 'The assignee shall sell all such unincumbered estate, real and personal, which comes to his hands, on such terms as he thinks most for the interest of the creditors.' If, therefore, the plaintiffs in error occupied the position of guardians for the creditors of the bankrupt estate, and had the right, in this suit, to question the administration of the trustee, the section referred to would be a sufficient answer to the exception taken to the sale by Tappan to Clews of the property which is the subject of this controversy. We think, therefore, that no ground is shown on which the title of Clews can be successfully assailed.
Other points have been raised and argued by counsel, but as these do not present any federal question, it is not our province or duty to pass upon them. Murdock v. City of Memphis, 20 Wall. 590. All the federal questions presented by the record were, in our judgment, rightly decided by the supreme court of Iowa. Judgment affirmed.
See note at end of case.
Statute of Limitations.
Statutes of limitations are statutes of repose, Hurley v. Cox, 2 N. W. Rep. 705; Letson v. Kenyon, 1 Pac. Rep. 562; Taylor v. Miles, 5 Kan. 499; Elder v. Dyer, 26 Kan. 604, and are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is therefore defined and allowed. But the basis of the presumption is gone Whenever the ability to resort to the court has been taken away; for in such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have. Greenwald v. Appell, 17 Fed. Rep. 140. The object of the statute is to suppress fraudulent and stale claims, and prevent them from showing up at great distances of time, and surprising the parties or their representatives when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time, or the defective memory or death or removal of witnesses. Hurley v. Cox, 2 N. W. Rep. 705; Spring v. Gray, 5 Mason, 523.
1. WHEN STATUTE BEGINS TO RUN. Where statute of limitations provided that in cases where the cause of action had already accrued at the passage of the act a party should have the whole period prescribed by the act, after its passage, in which to commence action, and by another act of the same legislative session it was provided that said statute and others should take effect at a day subsequent to the date of their actual passage and approval by the governor, it was held that the period of limitation did not begin to run until the statute took effect, as provided in the second act. Schneider v. Hussey, 1 Pac. Rep. 343; Rogers v. Vess, 6 Iowa, 408.
(1) Agents. As a general rule the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has knowledge of some wrong committed by the agent in consistent with the principal's rights. Perry v. Smith, 2 Pac. Rep. 784; Green v. Williams, 21 Kan. 64; Auld v. Butcher, 22 Kan. 400; Kane v. Cook, 8 Cal. 449; Ang. Lim. § 179 et seq.; Wait, Act. & Def. 238. But it has been held that where an agent is appointed to collect money and remit, after deducting his reasonable charges, and fails to do so after a reasonable time, the statute of limitations commences to run.
Mast v. Easton, 22 N. W. Rep. 253. See Stacy v. Graham, 14 N. Y. 492; Lillie v. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn. 520; Campbell's Adm'rs v. Boggs, 48 Pa. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes, 2 Rich. Law, 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188. The fact that the principal did not know when the claim was collected, and hence did not know that the agent had failed in the performance of his duty, and that a right of action had accrued, will not affect the running of the statute. Mast v. Easton, 22 N. W. Rep. 253; Cock v. Van Etten, 12 Minn. 522, (Gil. 431.)
(2) Bankruptcy. The statute of limitations is no bar to proof in bankruptcy if it had not run against the claim at the commencement of the proceedings in bankruptcy, In re McKinney, 15 Fed. Rep. 912; and no lapse of time will prevent the proof of the claim before the register, up to the final distribution of dividends. If it is so barred by the statute before the adjudication, it will remain barred, and the claim cannot be proven. In re Graves, 9 Fed. Rep. 816.
(3) Bills, etc. In a suit by the drawee of a bill of exchange against an indorser, where such bill was drawn by the treasurer of the United States, and the name of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee. Merchants' Nat. Bank of Baltimore v. First Nat. Bank of Baltimore, 3 Fed. Rep. 66.
(a) Claims Payable on Demand. Where no time is specified within which a loan of money is to be repaid, the presumption of the law is that it was to be paid on demand, and the statute of limitations commences to run from the time of the loan. Dorland v Dorland, 5 Pac. Rep. 77; Ang. Lim. § 95. On a due-bill without day of payment a cause of action accrues on delivery, and the statute begins to run. Douglass v. Sargent, 4 Pac. Rep. 861. See Palmer v. Palmer, 36 Mich. 487; Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Stover v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609. In an action to recover from a bank a general deposit, the statute does not commence to run until a demand, unless the demand has been in some way dispensed with. Branch v. Dawson, 23 N. W. Rep. 552. And the same is true of an 'especial deposit.' Smiley v. Fry, (N. Y.) 3 N. E. Rep. 186.
(4) Bonds. (a) Administrator's Bond. The liability of a surety on an administrators or executor's bond is not fixed, and no cause of action arises thereon until there is a judicial ascertainment of the default of the principal, and from this time the statute of limitations begins to run. Alexander v. Bryan, 4 Sup. Ct. Rep. 107. This judicial ascertainment must be something more than the mere auditing of the accounts. There must be a decree ordering payment, on which process to collect can issue against the principal. Id.
(b) Appeal-Bonds. The statute commences to run in favor of sureties on an undertaking on appeal from the date of the affirmance of the judgment to which it relates. Clark v. Smith, 6 Pac. Rep. 732; Crane v. Weymouth, 54 Cal. 480; Castro v. Clarke, 29 Cal. 11. suit on guardian's bond when the person ceases to be guardian, Probate Judge v. Stevenson, 21 N. W. Rep. 348; and in case of a default,
a right of action first accrues to the ward when amount of such default is ascertained by the court in the settlement of the guardian's final account, and from this time the statute runs. Ball v. La Clair, 22 N. W. Rep. 118.
(d) Public Officer's Bond. The statute does not commence to run in favor of sureties on the bond of a public officer until the liability of their principal has been fixed. Lawrence v. Doolan, 5 Pac. Rep. 484. And it has been held that where an assessment of damages for a right of way is paid to a sheriff, the statute begins to run against an action on sheriff's bond to recover such assessment when the time fixed by law for appeal has expired. Lower v. Miller, 23 N. W. Rep. 897.
(5) Book-Accounts. On the settlement of a book-account it has been held that the statate of limitations begins to run from the time the account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261. On an open, mutual account the statute does not commence to run until the date of the last item charged. Hannon v. Engelmann, 5 N. W. Rep. 791. Where an open account is closed by an agreement that certain parties shall assume payment, the statute runs from the date of such agreement. Hammond v. Hale, 15 N. W. Rep. 585. But where the items of an account are all charged against one party it is not a mutual account, Fitzpatrick v. Henry, 16 N. W. Rep. 606; Butler v. Kirby, 53 Wis. 188; S. C. 10 N. W. Rep. 373; Ang. Lim. §§ 148, 149; and each item will stand, as regards the running of the statute, as though it stood alone. Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew, 6 N. H. 235; Smith v. Dawson, 10 B. Mon. 112; Craighead v. Bank, 7 Yerg. 399; Lowe v. Dowborn, 26 Tex. 507; Cottam v. Partridge, 4 Man. & G. 271; Williams v. Griffiths, 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn. & C. 603; Bell v. Morrison, 1 Pet. 351.
(6) Contribution. On an action for contribution by one of the sureties on a note, against whom a judgment has been taken for the full amount, the statute begins to run from the date of the payment of such judgment. Preston v. Gould, 19 N. W. Rep. 834. See Lamb v. Withrow, 31 Iowa, 164; Johnston v. Belden, 49 Iowa, 301.
(7) Conversion. The statute commences to run against an action for conversion from the date of such conversion. Doyle v. Callaghan, 7 Pac. Rep. 418.
(8) Corporation—Municipal. In an action against a municipal corporation for damages for an injury caused by defective sidewalk, the statute begins to run from the time when such claim is disallowed, or the failure of the council to act on the matter amounting to a disallowance. Watson v. City of Appleton, 22 N. W. Rep. 475. It was held by the supreme court of Ohio in Perry Co. v. Railroad Co., 2 N. E. Rep. 854, that where a railroad company had injured a county bridge, that the statute did not begin to run against a claim on the part of the county against the railroad company for damages until after the bridge had been restored to its former condition by the county commissioners.
(9) Corporations—Stockholders. In an action against a stockholder to subject his unpaid shares of stock to satisfaction of a judgment against a corporation, the statute begins to run when the cause of action against the corporation accrued. First Nat. Bank of Garrettsville, Ohio, v. Greene, 17 N. W. Rep. 86; affirmed on rehearing, 20 N. W. Rep. 754; Baker v. Johnson Co., 33 Iowa, 155. See Prescott v. Gonser, 34 Iowa, 175;
Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037. Where one corporation transferred to another all its property, except its franchise, and such other corporation assumed to pay all debts, and a creditor of the grantor, whose claim of action arose before the conveyance was executed, but not yet barred by the statute of limitations, brought suit at law against the grantor, and obtained judgment on which an execution was issued, but returned unsatisfied, and then, after the time fixed by the statute of limitations had run since the cause of action arose against the grantor, brought suit in equity against the grantor and the grantee, it was held that the claim was neither barred by laches nor the statute of limitations. Fogg v. St. Louis, H. & K. R. Co., 17 Fed. Rep. 871. As to an action by stockholder suing in his own name for benefit of all stockholders against directors for misappropriation, etc., see infra, (31, a.)
(10) Co-Tenants. The statute does not run as against tenants in common until actual ouster. Hume v. Long, 5 N. W. Rep. 193. A quitclaim deed by one tenant in common will not set the statute running as against other tenants in common. Moore v. Antell, 6 N. W. Rep. 14; Hume v. Long, 5 N. W. Rep. 193.
(11) Covenant. The statute of limitations commences to run against a covenant from the time substantial damage is sustained. Post v. Campau, 3 N. W. Rep. 272. Where land, the paramount title being in another, is conveyed with covenant of seizin, the covenant is broken on the delivery of the deed, and the statute begins to run. Sherwood v. Landon, 23 N. W. Rep. 778; Matteson v. Vaughn, 38 Mich. 373.
(12) Decedents, Estates of. The statute commences to run against a rejected claim on the estate of a decedent from the time of its actual rejection. Bank of Ukiah v. Shoemake, 7 Pac. Rep. 420. A claim against an estate is not barred because not presented for allowance in time, when, at that time; there was no claim which could be presented for allowance against the estate. Ford v. Smith, 18 N. W. Rep. 925.
Where a cause of action accrues to a person's estate after his death, the statute of limitations commences to run from the date of the accrual, Hibernia S. & L. Soc. v. Conlin, 7 Pac. Rep. 477; Tynan v. Walker, 35 Cal. 634; although there was no person in existence competent to sue, and continues to run from such date without cessation, Tynan v. Walker, 35 Cal. 634; for where the statute of limitations once begins to run, no subsequent disability will stop its running. Oliver v. Pullam, 24 Fed. Rep. 127.
(13) Dower. The statute of limitations does not commence to run against an action to recover dower until there is an adverse possession of the land. Felch v. Finch, 3 N. W. Rep. 570; Phares v. Walters, 6 Iowa, 106; Starry v. Starry, 21 Iowa, 254; Rice v. Nelson, 27 Iowa, 153; Sully v. Nebergall, 30 Iowa, 339.
(14) Fraud. The statute of limitations does not run against an action based on a fraud until the discovery of the fraud. Perry v. Wade, 2 Pac. Rep. 787; Clews v. Traer, 10 N. W. Rep. 838; Voss v. Bachop, 5 Kan. 59. And it was recently held by the supreme court of Pennsylvania, in the case of Hughes v. First Nat. Bank of Waynesburg, 1 Atl. Rep. 417, that where government bonds were deposited with a bank for safe-keeping and afterwards pledged by the bank as collateral security for its own debts, and actually sold by the holder,
that the putting off of the depositor or his representative from time to time with promises to return the bonds so pledged, the interest being paid in the mean time, is such fraud and concealment as will toll the running of the statute of limitations. Where by actual fraud the debtor keeps his creditor in ignorance of the cause of action, the statute does not begin to run until the creditor had knowledge, or was put upon inquiry with means of knowledge, that such cause of action had accrued. Mere silence or concealment, however, will not toll the running of the statute when the relation existing between the parties is simply that of debtor and creditor. Stewart v. McBurney, 1 Atl. Rep. ——. The question of discovery of fraud is a question of fact and must be properly pleaded. Johnson v. Powers, 13 Fed. Rep. 315. Where money is procured to be paid out upon fraudulent representation, the cause of action is presumed to have arisen, and the statute of limitations begins to run when the fraud was committed, Barlow v. Arnold, 6 Fed. Rep. 351; but such presumption may be avoided by alleging and proving the time of the discovery of the fraud. See Carr v. Hilton, 1 Curt. 390; Field v. Wilson, 6 B. Mon. 479; Carneal v. Parker, 7 J. J. Marsh. 455; Baldwin v. Martin, 3 Jones & S. 98; Erickson v. Quinn, 3 Lans. 302; Mitf. & T. Eq. Pl. 356; Story, Eq. Pl. § 754. It has been held that the statute of limitations does not begin to run against an equitable action for relief, on the ground of fraud, until the aggrieved party has discovered the facts constituting the fraud, or has information of such a nature as would impress a reasonable man with the belief that a fraud had been committed, and would, upon diligent inquiry, lead to the discovery of the facts. O'Dell v. Burnham, 21 N. W. Rep. 635. See Carr v. Hilton, 1 Curt. 390; Kennedy v. Green, 3 Mylne & K. 699; Hovenden v. Lord Annesley, 2 Schoales & L. 607; Martin v. Smith, 1 Dill. C. C. 85; Bailey v. Glover, 21 Wall. 342; First Mass. Turnpike Corp. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Rice v. Burt, 4 Cush. 208; Kane v. Bloodgood, 7 Johns. Ch. 90; App v. Dreisbach, 2 Rawle, 287; Reeves v. Dougherty, 7 Yerg. 222; Haynie v. Hall, 5 Humph. 290; Kuhn's Appeal, 87 Pa. St. 100.
(15) Implied Contract. Where a cause of action is based on an implied contract, the statute does not begin to run until after the circumstances from which the obligation is inferred arose. Goodnow v. Stryker, 14 N. W. Rep. 345.
(16) Judgment. Where suit is brought upon a judgment after a return of nulla bona upon the execution writ, the statute of limitations, it was held, commenced to run at the time of the return of the execution, and not the entry of the judgment. Taylor v. Bowker, 4 Sup. Ct. Rep. 397.
(17) Leasehold—Assignment. In a suit between the assignor and assignee of a leasehold, for rent accruing, and paid by the assignor subsequent to the assignment, the statute of limitations begins to run in favor of the assignee from the time the assignor paid the accrued rent, and not from the time assignor made default in the payment of the same. Ruppel v. Patterson, 1 Fed. Rep. 220.
(18) Married Woman. Where the statute makes the wife as well as the husband liable for necessary family expenses, the liability of the wife continues as long as there is a right of action against the husband. Frost v. Parker, 21 N. W. Rep. 507.
(19) Minor or Ward—Suit after Majority. The statute of limitations commences to run against an action by a ward to recover lands sold by his guardian at the time of ward's attaining majority. Seward v. Didier, 20 N. W. Rep. 12. See Spencer v. Sheehan, 19 Minn. 338, (Gil. 292;)
Miller v. Sullivan, 4 Dill. 340; Good v. Norley, 28 Iowa, 188, (overruled by Boyles v. Boyles, 37 Iowa, 592;) Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506. Where the party who should bring an action for the seduction of a minor is the person who seduces her, the statute of limitations will not begin to ran until after such minor attains her majority. Watson v. Watson, 18 N. W. Rep. 605. A party having a right to pursue her demand on attaining her majority cannot tack her subsequent disabilities by successive covertures, in order to prevent the operation of the statute of limitations. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449.
(20) Mortgage. The statute of limitations commences to run against an action to foreclose a mortgage when the cause of action accrued. Herdman v. Marshall, 22 N. W. Rep. 690; Cheney v. Cooper, 14 Neb. 415; S. C. 16 N. W. Rep. 471.
(21) Nuisance. It has been held that the statute of limitations commences to run against an action for erecting and maintaining a nuisance by a gas company at the time of erection of the gas-works. Baldwin v. Oskaloosa Gas-light Co., 10 N. W. Rep. 317. But the general doctrine is that in an action for damages and abatement of a nuisance the statute of limitations will not be considered to have begun to run until some injury has been caused by the alleged nuisance. Miller v. Keokuk & D. M. Ry. Co., 16 N. W. Rep. 567; Powers v. Council Bluffs, 45 Iowa, 652. Every continuance of a nuisance is in law a new nuisance. Ramsdale v. Foote, 13 N. W. Rep. 557. See Baltimore 8 P. R. Co. v. Fifth Baptist Church, 2 Sup. Ct. Rep. 719. And where, in an action for damages, and to abate a nuisance, since the cause of action accrued, the statute of limitations has run, but damage has continued to be done within the time provided by statute, the action is not barred. Drake v. Chicago, R. I. & P. R. Co., 19 N. W. Rep. 215. See McConnel v. Kibbe, 29 Ill. 483; Bowyer v. Cook, 4 Man., Gr. & S. 236.
(22) On Coming into State. On removal to another state the statute of limitations commences to run, on a cause of action already accrued, from time of arrival in state. Edgerton v. Wachter, 4 N. W. Rep. 85; Hartley v. Crawford, 11 N. W. Rep. 729; Harrison v. Union Nat. Bank, Id. 752.
(23) Order or Warrant on County Treasury. The statute of limitations begins to run against a county warrant when it is presented to the proper authority, and indorsed 'not paid for want of funds.' Carpenter v. District Tp. of Union, 12 N. W. Rep. 280. Where a town clerk has duly paid an order, and is entitled to credit for it at his next settlement, the statute of limitations begins to run at the date of such settlement. Dewey v. Lins, 10 N. W. Rep. 660. See Prescott v. Gonser, 34 Iowa, 175.
(24) Partnership—Accounting. In case of partnership each partner is entitled to an accounting upon dissolution, and statute will run from that date, Near v. Lowe, 13 N. W. Rep. 825; but it does not begin to run against a partnership until the dissolution thereof, or until a sufficient time has elapsed after a demand for an accounting and settlement. Richards v. Grinnell, 18 N. W. Rep. 668.
(25) Promise to Pay, etc. Where a cuase of action, barred by the statute of limitations, is revived by written admission, that removes the bar; the statute runs anew from the date of the admission. Bayliss v. Street, 2 N. W. Rep. 437. From the time of the acknowledgment of a debt under circumstances that indicate a willingness or liability to pay the same,
the statute of limitations begins to run. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67. Where a debtor promised to pay 'as soon as able,' the statute of limitations began to run as soon as he had pecuniary ability to pay; and the question of when that ability arose is for the jury. Tebo v. Robinson, 2 N. E. Rep. 383.
(26) Rape. The statute of limitations commences to run against action for rape at time of its commission. Van Der Haas v. Van Domselar, 10 N. W. Rep. 227. But see supra, (19.)
(27) Real Estate—Adverse Possession. Adverse possession of real estate, to set the statute of limitations running, must be open, notorious, continuous. Mauldin v. Cox, 7 Pac. Rep. 804. Mere entry upon land is not sufficient, without open, adverse possession, to stop the running of the statute. Donovan v. Bissell, 19 N. W. Rep. 146. Going upon wild land, digging, and hunting for a corner and boundary lines, driving cattle on the land, and employing a man to 'break' in the following spring, are notsuch going into possession as will set the statute of limitations in operation so as to carry a title by virtue of adverse possession. Brown v. Rose, 7 N. W. Rep. 133. It does not commence to run in favor of an adverse possession of lands until after the issuance of the patent to such lands. Ross v. Evans, 4 Pac. Rep. 443. It does not run against the owner of unoccupied lands until some one assumes to take adverse possession; and this rule applies as well to an assignee in bankruptcy, who, under the statute, (U. S. Rev. St. § 5057,) must bring suit within two years, as to the original owner. Gray v. Jones, 14 Fed. Rep. 83. An action to set aside an assignment or conveyance of property made to hinder or delay creditors should ordinarily be brought within the same time after the right accrues as an action at law to recover possession of the same property. Hickox v. Elliott, 22 Fed. Rep. 13.
(28) Salary. The statute begins to run against an action to recover salary of a public officer from time of expiration of his term of office. Griffin v. County of Clay, 19 N. W. Rep. 327. Where an employe's wages are due at the end of each month, the statute of limitations begins to run against an action to recover them at the date when they should have been paid. Butler v. Kirby, 10 N. W. Rep. 373; Davis v. Gorton, 16 N. Y. 255; Rider v. Union India R. Co., 5 Bosw. 85; Turner v. Martin, 4 Rob. 661; Mims v. Sturtevant, 18 Ala. 359; Phillips v. Broadley, 11 Jur. 264.
(29) Tax, Illegal—Mandamus. Statute of limitations begins to run against mandamus to compel the refunding of illegal tax from the time of the payment thereof. Beecher v. Clay Co., 2 N. W. Rep. 1037.
(30) Tax Title. The statute of limitations does not begin to run in favor of the holder of a tax deed by merely recording the same. To avail himself of the benefits of the statute, his possession must be actual and adverse, and continued for the statutory period. Baldwin v. Merriam, 20 N. W. Rep. 250.
(a) Against Owner of Land. The statute of limitations commences to run against defense to tax deed from date of sale. Shawler v. Johnson, 3 N. W. Rep. 604. See Clark v. Thompson, 37 Iowa, 536. In Wisconsin it is held that the fact that the tax deed issued is void does not prevent the running of the statute in favor of the holder. Peck v. Comstock, 6 Fed. Rep. 22. See Edgerton v. Bird, 6 Wis. 527; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; Lawrence v. Kenney, 32 Wis. 281; Wood v. Meyer, 36 Wis. 308;
Marsh v. Supervisors, 42 Wis. 502; Philleo v. Hiles, Id. 527; Oconto Co. v. Jerrard, 46 Wis. 324; Milledge v. Coleman, 47 Wis. 184; S. C. 2 N. W. Rep. 77.
(b) Against the Holder of Tax Deed. The statute commences to run against one claiming under a tax deed from date of treasurer's deed, where received when entitled to demand the same, Bailey v. Howard, 7 N. W. Rep. 592; Barrett v. Love, 48 Iowa, 103; otherwise, from time when entitled to deed and not from date of actual execution and delivery. Hintrager v. Hennessy, 46 Iowa, 600.
The statute commences to run against deed without date from day of its delivery, McMicheal v. Carlyle, 10 N. W. Rep. 556; for the real date of a deed is the date of delivery, Jackson v. Schoonmaker, 2 Johns. 234; or from the date of filing same for record. Griffith's Ex'r v. Carter, 19 N. W. Rep. 903; Cassady v. Sapp. 19 N. W. Rep. 909; Eldridge v. Kuehi, 27 Iowa, 160. But the person purchasing at tax sale must demand and record his deed when he is entitled to do so. Hintrager v. Hennessy, 46 Iowa, 600.
(c) On Failure of Tax Title. Where tax sale is set aside, or the title acquired fails, the purchaser has a lien for taxes paid, with interest, Harber v. Sexton, 23 N. W. Rep. 635; which he may enforce by proceedings to foreclose the same, Peot v. O'Brien, 5 Neb. 360; Pettit v. Black, 8 Neb. 52; Wilhelm v. Russell Id. 120; Miller v. Hurford, 11 Neb. 377; S. C. 9 N. W. Rep. 477; Towle v. Holt, 14 Neb. 222; S. C. 15 N. W. Rep. 203; Reed v. Merriam, 18 N. W. Rep. 137; Zahradnicek v. Selby, 19 N. W. Rep. 645; Sturges v. Crowninshield, 4 Wheat. 122; and the statute of limitations does not begin to run against the right to enforce such lien until the tax deed fails. Schoenheit v. Nelson, 20 N. W. Rep. 205; Bryant v. Estabrook, Id. 245; Otoe Co. v. Brown, Id. 274.
(31) Trusts. It is a general rule that neither lapse of time, nor the rule of analogy, nor any defense analogous to the statute of limitations can be set up by a trustee of an express trust. Preston v. Walsh, 10 Fed. Rep. 315; Etting v. Marx's Ex'r, 4 Fed. Rep. 673 This rule applies only to pure or direct trusts. Newsom v. Board of Com'rs, (Ind.) 3 N. E. Rep. 163. Yet, when the circumstances require it, especially when the rights of third persons intervene, a court of equity will enforce against the cestui que trust its own peculiar maxim, vigilantibus et non dormientibus jura subserviunt. Id. Hence, when the legal title to realty is in one person, and the real interest is in another, the statute of limitations will not run as between the parties until there is a renunciation of the trust, or until the party holding the legal title by some act or declaration asserts a claim adverse to the interests of the real owner. Reihl v. Likowski, 6 Pac. Rep. 886. But where there is a conflict of claim between trustee and his cestui que trust, and the party having the legal estate holds adversely, the statute of limitations will protect the only having the legal title, and who is sought to be converted into a trustee by a decree founded upon fraud, breach of trust, or some inequitable advantage obtained by him. Taylor v. Holmes, 14 Fed. Rep. 498.
(a) Misappropriation, etc. Where a person misappropriates trust funds, the statute commences to run from the actual misappropriation, or at furthest from the discovery of the fact by the use of reasonable diligence by the party entitled to its benefit. Pierson v. McCurdy, 2 N. E. Rep. 615; Same v. Same, 33 Hun, 520. It has been held that an action by a stockholder, suing in his own name for the benefit of all the stockholders, to recover against the directors of a corporation for property lost or stolen through the misconduct, negligence, carelessness, and inattention of such directors, is in the nature of complaint in an equitable action against the directors,
as trustees,—one of which courts of equity have jurisdiction, Brinckerhoff v. Bostwick, 1 N. E. Rep. 663; Robinson v. Smith, 3 Paige, 222; Heath v. Erie Ry. Co., 8 Blatchf. 347; Brinckerhoff v. Bostwick, 88 N. Y. 52; and the statute of limitations will begin to run as in other cases of breach of corporate trust. See Pierson v. McCurdy, supra.
(b) Resultant, Constructive, Implied Trusts. The statute of limitations will run in favor of the trustee of a resultant or constructive trust from the time he disavows the obligations of the trust. German-American Seminary v. Kiefer, 4 N. W. Rep. 636; Otto v. Schlapkahl, 10 N. W. Rep. 651; Strimpfler v. Roberts, 18 Pa. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v. Davidson, 40 Mich. 632. Where a trust arises by implication out of the agreement of parties, and there is no conflict of claim, or adverse possession between the trustee and cestui que trust, statutes of limitation do not apply. Taylor v. Holmes, 14 Fed. Rep. 498.
(32) Verbal Contract to Convey. Where money has been paid on a verbal contract to convey land, the statute does not begin to run against an action to recover the same until the date of demand or refusal to convey. Tucker v. Grover, 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C. 10 N. W. Rep. 384. See Thomas v. Sowards, 25 Wis. 631; N. W. U. P. Co. v. Shaw, 37 Wis. 655.
(33) Wrongful Act. Where a wrongful act has been committed, in the absence of fraud the statute begins to run as soon as the wrong is committed, although the plaintiff may be ignorant that a cause of action has accrued, Dee v. Hyland, 3 Pac. Rep. 388; Jordan v. Jordan, 4 Greenl. 175; Thomas v. White, 3 Litt. 177; for the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned by some improper conduct on the part of the defendant. Froley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92. Failure to credit a payment on a judgment is not a fraud, and the statute of limitations begins to run from the date of the payment. Shreves v. Leonard, 8 N. W. Rep. 749. See Gebhard v. Sattler, 40 Iowa, 153; Brown v. Brown, 44 Iowa, 349; Phoenix Ins. Co. v. Dankwardt, 47 Iowa, 432; Higgins v. Mendenhall, 51 Iowa, 135.
2. COMPUTATION OF TIME. In the absence of any statutory provision governing the computation of time, where an act is required to be done a certain number of days or weeks before a certain other day, upon which another act is to be done, the day upon which the first act is to be done must be excluded from the computation, and the whole number of the days or weeks must intervene before the day fixed for the second act. Ward v. Walters, 22 N. W. Rep. 844; Pitt v. Shew, 4 Barn. & Aid. 208; Mitchell v. Foster, 4 Perry & D. 150; Queen v. Justices of Shropshire, 8 Adol. & E. 173; Zouch v. Empsey, 4 Barn. & Aid. 522; Hardy v. Ryle, 9 Barn. & C. 603; Judd v. Fulton, 4 How. Pr. 298; Small v. Edrick, 5 Wend. 137; Rankin v. Woodworth, 6 Pen. & W. 48; Wood. Lim. 107, § 56. It is said in the case of Ganahl v. Soher, 5 Pac. Rep. 80, that the time of a minor's minority is calculated from the first minute of the day on which he is born to the first minute of the day corresponding which completes the period of minority; and, in calculating the time within which he may thereafter bring an action, as he attains majority on the first minute of a day, the whole of that day is to be calculated as the first day of the time within which he may bring the action.
3. WHAT PREVENTS THE RUNNING. The statute of limitations does not cease to run merely because the creditor is involved in litigation with third parties,
upon the issue of which the individual right to the debt is dependent. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449. A cause of action for conversion which would be otherwise barred by the statute is not kept alive by every intermeddling with the property which treated by itself might give a cause of action. Kinsely v. Stein, 18 N. W. Rep. 115.
(1) Acknowledgment or New Promise. Acknowledgment or promise to pay debt, made after the debt is barred, will revive it, Rolfe v. Pillond, 19 N. W. Rep. 970; but will not revive except by an express promise, or by such an acknowledgment of the indebtedness as reasonably leads to the inference that the debtor intended to renew his promise or to waive the benefit of the statute. Denny v. Marrett, 13 N. W. Rep. 148; Whitney v. Reese, 11 Minn. 138, (Gil. 87;) Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.) An acknowledgment of indebtedness will not be presumed where the accompanying circumstances are such as to leave it in doubt whether the party intended to prolong the time of legal limitation. City of Fort Scott v. Hickman, 5 Sup. Ct. Rep. 56. To take a debt out of statute the acknowledgment must be clear and unequivocal, and consistent with a promise to pay, Landis v. Roth, 1 Atl. Rep. 49; Richardson v. Brecker, 1 Pac. Rep. 433; uncertainty as to acknowledgment or indentification of the debt is fatal. Burr v. Burr, 26 Pa. St. 284. See Miller v. Baschore, 83 Pa. St. 356.
A promise to pay, after the statute of limitations has run, will not revive a tort; but a promise made before the statute has run, on consideration that no suit should be brought, will stop the running of the statute. Armstrong v. Levan, 1 Atl, Rep. 204.
(a) Promise in Writing. Where an unqualified promise, in writing, to pay is required to remove the bar of the statute of limitations, the words 'I think I see my way clear to pay you the $200 and interest I owe you. * * * I am in hopes another two years will enable me, from my present income, to clear off all pressing debts. * * * Rest assured that not a day of pecuniary freedom will pass over my head without your hearing from me,'—is not such promise. Pierce v. Seymour, 9 N. W. Rep. 71. A promise to pay 'when able,' 'as soon as possible,' 'when I can,' or 'as soon as he could,' have been held to be conditional in Colorado: Richardson v. Brecker, 1 Pac. Rep. 433; Illinois: Horner v. Starkey, 27 Ill. 13; Connecticut: Norton v. Shepard, 48 Conn. 142; Vermont: Cummings v. Gassett, 19 Vt. 310; New Hampshire: First Cong. Soc. v. Miller, 15 N. H. 522.
Where a debtor wrote, 'I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to be able to pay you soon, but will let you know what I can do in a few days;' held to take the debt out of the statute. Rolfe v. Pillond, 19 N. W. Rep. 970. Also, 'If I ever get able I will pay you every dollar I owe to you and all the rest. You can tell all as soon as I get anything to pay with I will pay. As for giving a note it is of no use; I will pay just as quick without it,'—held that this acknowledged an 'existing liability,' and took case out of statute. Devereaux v. Henry, 19 N. W. Rep. 697.
(2) Absence from the State and Non-Residence. Absence from the state suspends the operation of the statute as to resident or non-resident debtors. Whitcomb v. Keator, 18 N. W. Rep. 469; Hedges v. Roach, 21 N. W. Rep. 404; Satterthwaite v. Abercrombie, 24 Fed. Rep. 543; Hennequin v. Barney, Id. 580; Fowler v. Hunt, 10 Johns. 465; Milton v. Babson, 6 Allen, 322;
Rockwood v. Whiting, 118 Mass. 337. But the absence of a mortgagor from the state does not suspend the running of the statute of limitations, as to the mortgage securing a debt. Watt v. Wright, 5 Pac. Rep. 91. It has been held that a statute providing that 'the time during which a defendant is a non-resident of the state shall not be included in computing the period of limitation,' has no reference to non-resident corporations who come into such state on business, and can, by the laws of the state, sue and be sued there. McCabe v. Illinois Cent. R. Co., 13 Fed. Rep. 827.
(a) Temporary Absence. Where a statute provides that if, when a cause of action shall accrue against any person, he shall be out of the state, the action may be commenced within the term limited after such person shall return to or remove to the state, applies to the temporary absence of a resident of the state, although during such absence a summons might be served by leaving it at his usual place of abode. Parker v. Kelly, 21 N. W. Rep. 539. See Ruggles v. Keeler, 3 Johns. 263; Milton v. Babson, 6 Allen, 322; Brown v. Bicknell, 1 Pin. 226. And it has been held that where a person leaves a state in which he resides, under the employment of the general government, with the intention of returning as soon as his employment terminates, but retains no property or business interest in the state, he is a non-resident within the meaning of the statute, although his wife remains in the state for a portion of the time; and the statute of limitations will not run in his favor during his absence. Hedges v. Jones, 19 N. W. Rep. 675. See Penley v. Waterhouse, 1 Iowa, 498; Savage v. Scott, 45 Iowa, 133; Hackett v. Kendall, 23 Vt. 275; Sleeper v. Paige, 15 Gray, 349; Ware v. Gowen, 111 Mass. 526.
(b) Removal from and Return to State. Where a cause of action has accrued prior to the removal of a debtor from a state into another state, and he remains in such other state a sufficient length of time to avail himself of the statute of limitations in such state, his return to the first state will not revive the cause of action, when it is provided by statute in the first state that 'where a cause of action has arisen in a state or territory out of this state, or in a foreign country, and by the laws thereof an action cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state.' Osgood v. Artt, 10 Fed. Rep. 365. The reason for this is, that as soon as a residence was taken up in the second state, a cause of action accrued in that state against the debtor, and as soon as the cause of action accrued the statute of limitations of that state began to run. But, in the absence of the exceptional legislation, the debtor would be required to reside continuously within the first state from the time the cause of action arose until the statute in that state had completely run. Chenot v. Lefevre, % J. Gilman, 637.
(3) Commencement of Action. The statute ceases to run in favor of a defendant who is a non-resident of the district when complainant has obtained process against him, or done all that is necessary to obtain process, and not before. Bisbee v. Evans, 17 Fed. Rep. 474. And it is said that where an action has been commenced on a claim, however defective, it stops the running of the statute of limitations. Smith v. McNeal, 3 Sup. Ct. Rep. 319. But, where the law furnishes a party with a simple method of proceeding against an ultimate debtor, he cannot prevent the running of a statute of limitations against him by attempting to collect his debts by a circuitous legal proceeding. Glenn v. Dorsheimer, 23 Fed. Rep. 695.
Where the continuity of an action is interrupted by an interval between the returnday of one writ of summons and the issue of an alias writ,
the institution of the action will not stop the running of the statute during the intervening time. Johnson v. Mead, 24 N. W. Rep. 665. And where a case is brought in state court and removed to the federal court, where it is dismissed without prejudice because plaintiff 'believes he cannot obtain a fair trial in the federal court,' another action in the state court will be barred if the original action would have been barred. Archer v. Chicago, B. & Q. R. Co., 22 N. W. Rep. 894.
A debtor who procures and keeps in force an injunction against the collection of a debt which he ought to pay, until it is barred at law by the statute of limitations, will not be allowed to avail himself of the bar in a court of equity. Union Mut. Life Ins. Co. of Maine v. Dice, 14 Fed. Rep. 523. It has been held that, under the statute of California, where the supervisors of a county all resigned to prevent the service of summons in a suit against the county, it did not prevent the statute from running. Nash v. Eldorado Co., 24 Fed. Rep. 252.
(a) Defense or Counter-Claim. It is said that the statute does not run against a claim set up as a defense, and on which defendant is entitled to rely, while such suit is pending. Becker v. Wing, 21 N. W. Rep. 47.
(4) Estates of Decedents. Death of debtor suspends the running of the statute until an administrator is appointed. Nelson, Adm'r, v. Herkel, Adm'r, 2 Pac. Rep. 110; Toby v. Allen, 3 Kan. 399; Hanson v. Towle, 19 Kan. 273. See Whitney v. State, 52 Miss. 732; Briggs v. Thomas' Estate, 32 Vt. 176; Etter v. Finn, 12 Ark. 632. A request by the executor of the estate of a deceased person for delay, to save the bar of the statute of limitations in favor of such estate, must be for a definite time agreed on by the parties, or fixed by reference to some designated event which may occur, and thereby render the period certain. Simply requesting 'that you do not enforce your claims,' and promising that he 'will not avail himself of the statute applicable to executors,' etc., is insufficient. Pulliam v. Pulliam, 10 Fed. Rep. 53.
The statute of limitations does not run against a claim against the estate of a decedent from the time when presented for allowance until rejected. Nally v. McDonald, 6 Pac. Rep. 390. The statute does not run against a claim presented and allowed. German Savings & Loan Soc. v. Hutchins, 8 Pac. Rep. 627. Filing a claim against the estate of a decedent is not 'proving,' within the meaning of the statute of limitations. Willcox v. Jackson, 1 N. W. Rep. 536.
A joint judgment against the deceased and others, obtained during his life-time, may, upon his death, be prosecuted against his representative alone in Michigan. U. S. v Spiel, 8 Fed. Rep. 143.
(a) Appointment of Administrator. No disability arising after a statute of limitations has begun to run will suspend its operation, McDonald v. Hovey, 4 Sup. Ct. Rep. 142; and the bar of the statute of limitations is not removed by the issuance of letters of administration on the estate of the deceased debtor. Gaines v. Hammond's Adm'r 6 Fed. Rep. 449. And this rule is not modified by the fact that it was not known that the decedent had any estate calling for administration until after the expiration of the statutory period of limitation. Id.
(b) Devolution. Where the statute commences to run in life-time of ancestor, its operation is not arrested by his death and minority of his heirs,
Darnall v. Adams, 13 B. Mon. 273; Haynes v. Jones, 2 Head, (Tenn.) 372; Ang. Lim. § 196; and consequently the statute of limitations in ejectment is not arrested by the devolution of the estate. De Mill v. Moffat, 13 N. W. Rep. 387. See Hill v. Smith, 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Rhodes v. Smethurst, 4 Mees. & W. 42; S. C. 6 Mees. & W. 351; Eager v. Com., 4 Mass. 182; Peck v. Randall, 1 Johns. 165; Demarest v. Wynkoop, 3 Johns. Ch. 129; Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson, 5 Strob. 213; Byrd v. Byrd, 28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracy v. Atherton, 36 Vt. 503; Reimer v. Stuber, 20 Pa. St. 458; Stephens v. McCormick, 5 Bush, 181; Ruff v. Bull, 7 Har. & J. 14; Pinckney v. Burrage, 31 N. J. Law, 21; Lewis v. Barksdale, 2 Brock. 436; Walden v. Gratz, 1 Wheat. 292; Mercer v. Selden, 1 How. 37; Hogan v. Kurtz, 94 U. S. 773; Becker v. Van Valkenburgh, 29 Barb. 324; Allis v. Moore, 2 Allen, 306; Currier v. Gale, 3 Allen, 328; Keil v. Healey, 84 Ill. 104; Cozzens v. Farnan, 30 Ohio St. 491.
(5) Extension of Time. An agreement to extend or postpone the time of payment of a claim, made without consideration, is void, and will not prevent the running of the statute of limitations. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67. In German Savings & Loan Soc. v. Hutchinson, Ex., (Cal.) 8 Pac. Rep. 627, an agreement made after the maturity of a note and mortgage, and executed by the mortgagor to the mortgagee, after reciting the loan and execution of the note and mortgage, and that the mortgagor was desirous of extending the loan, provides 'that the time for the payment of the said promissory note shall be extended to, and the said note shall not mature or be payable until, the thirtieth day of December, 1874, provided that this agreement shall not affect or impair any other covenant or condition in the said promissory note or mortgage, but that they shall remain in as full force and effect as if this agreement had not been made,' held to be an agreement for the renewal of the note and mortgage.
(6) Fraud. Fraud, or the concealment of fraud, prevents the running of the statute of limitations until it is discovered. McAlpine v. Hedges, 21 Fed. Rep. 689. Where a deed is executed for the purpose of defrauding creditors, purposely kept off of record, and all the parties considered in the transaction keeping it perfectly silent, this is such fraudulent concealment as relief may be granted for in equity. McAlpine v. Hedges, 21 Fed. Rep. 689. See Meader v. Norton, 11 Wall. 442; Carr v. Hilton, 1 Curt. C. C. 238; Vane v. Vane, L. R. 8 Ch. 383; Rolfe v. Gregory, 4 De G., J., & S. 576; Hovenden v. Annesley, 2 Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. A contrary doctrine prevails in Indiana. Boyd v. Boyd, 27 Ind. 429; Pilcher v. Flinn, 30 Ind. 202; Musselman v. Kent, 33 Ind. 458; Jackson v. Buchanan, 59 Ind. 390; Wynne v. Cornelison, 52 Ind. 319; Hughes v. First Nat. Bank of Waynesburg, (Pa.) 1 Atl. Rep. 417.
(7) Mortgage. A mortgage will not keep alive the personal obligation to pay a debt after the time when it would otherwise be outlawed. Lashbrooks v. Hatheway, 17 N. W. Rep. 723; Michigan Ins. Co. v. Brown, 11 Mich. 265; Appeal of Goodrich, 18 Mich. 110; Powell v. Smith, 30 Mich. 452.
(8) Negligence and Laches. Neglect of a person to do that which is required of him to be done to perfect his right against another will not prevent the running of the statute of limitations against him. Lower v. Miller, 23 N. W. Rep. 897; Prescott v. Gonser, 34 Iowa, 175; Baker v. Johnson Co., 33 Iowa, 151; Hintrager v. Hennessy, 46 Iowa, 600; Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037; First Nat. Bank of Garrettsville v. Green, 17 N. W. Rep. 86.
(9) Note, etc. It has been held that the giving of a note by the husband for necessaries, for which the wife is equally liable, arrests the running of the statute of limitations until the maturity of the note, both as to the husband and the wife. Davidson v. Beggs, 16 N. W. Rep. 135; Lawrence v. Sinnamon, 24 Iowa, 80. Also, that where a judgment is taken against the husband alone for necessaries, for which his wife was jointly liable, it does not extent limitation against the wife until the expiration of such judgment. Polly v. Walker, 14 N. W. Rep. 137.
(10) Part Payment. It has been held that partial payment stops running of statute, whether made before, Engmann v. Estate of Immel, 18 N. W. Rep. 182; see Mainzinger v. Mohr, 41 Mich. 687; S. C. 3 N. W. Rep. 183; Eaton v. Gillet, 17 Wis. 435; Williams v. Gridley, 9 Metc. 482; Sibley v. Lumbert, 30 Me. 253; Newlin v. Duncan, 1 Har. (Del.) 204; 7 Wait, Act. & Def. 228, 301, 307; Pars. Cont. 353, or after the statute has debarred the claim. Winchell v. Hicks, 18 N. Y. 558; Pickett v. Leonard, 34 N. Y. 175; Harper v. Fairley, 53 N. Y. 442; Carshore v. Huyck, 6 Barb. 583; Graham v. Selover, 59 Barb. 313; First Nat. Bank of Utica v. Ballou, 49 N. Y. 155; Ilsley v. Jewett, 2 Metc. 168; Ayer v. Hawkins, 19 Vt. 26; Wheelock v. Doolittle, 18 Vt. 440; Emmons v. Overton, 18 B. Mon. 643; Walton v. Orbinson, 5 Ired. Law, 343; Schmucker v. Sibert, 18 Kan. 104; Shannon v. Austin, 67 Mo. 485; Carroll v. Forsyth, 69 Ill. 127. But a credit entered upon a note by the holder thereof does not revive a barred note, under the construction of the statute of limitations in Georgia, unless he be authorized by the defendant in writing to enter such credit. Stone v. Parmalee, 18 Fed. Rep. 280.
(a) Voluntary Payment. It has been held that voluntary part payment is an acknowledgment of the indebtedness, and an agreement to pay the residue is implied, Thomas v. Brewer, 7 N. W. Rep. 571; Harper v. Fairley, 53 N. Y. 442; Rolfe v. Pillond, 19 N. W. Rep. 970; Miner v. Lorman, 22 N. W. Rep. 265; yet mere part payment of a debt, without words or acts to indicate its character, is not evidence from which a new promise to take the debt out of the operations of the statute of limitations may be inferred. Chadwick v. Cornish, 1 N. W. Rep. 55; Brisbin v. Farmer, 16 Minn. 215, (Gil. 187.) A payment of interest on a barred note by maker and indorsement thereon by holder will take it out of the statute of limitations. Yesler v. Koslowski, (Wash. T.) 8 Pac. Rep. 493.
(b) Enforced Payment. Enforced part payment will not affect the running of the statute, Thomas v. Brewer, 7 N. W. Rep. 571; yet a part payment made by sale of a collateral by holder, and indorsed on note, will remove bar. Sornberger v. Lee, 15 N. W. Rep. 345; Wheeler v. Newbould, 16 N. Y. 392; Joliet Iron Co. v. Sciota F. B. Co., 82 Ill. 548; Whipple v. Blackington, 97 Mass. 476; Haven v. Hathaway, 20 Me. 345. It is said that where the statute provides that a part payment shall take the debt out of the statute, the payment of a dividend by an assignee of such debtor will not have that effect. Clark v. Chambers, 22 N. W. Rep. 229; Marienthal v. Mosler, 16 Ohio St. 566; Stoddard v. Doane, 7 Gray, 387; Pickett v. King, 34 Barb. 193; Roosevelt v. Mark, 6 Johns. Ch. 266. But the supreme court of Kansas hold, by a divided court, that such payment by assignee does take cause out of statute. Letson v. Kenyon, 1 Pac. Rep. 562; citing Jackson v. Fairbank, 2 H. Bl. 340; Barger v. Durvin, 22 Barb. 68.
(c) By Partner, Co-Surety, etc. At common law a payment made by one of the debtors kept the demand alive as to both, and was equivalent to a new promise by both. Mainzinger v. Mohr, 3 N. W. Rep. 183; Wyatt v. Hodson, 8 Bing. 309.
But the rule is different in most if not all the states. Marienthal v. Mosler, 16 Ohio St. 566; Quinby v. Putnam, 28 Me. 419. In absence of a statute to the contrary, part payment by one joint debtor will remove the bar as to all. National Bank of Delavan v. Cotton, 9 N. W. Rep. 926. See Winchell v. Hicks, 18 N. Y. 558; Huntington v. Ballou, 2 Lans. 121. Money paid by one of two or more joint debtors on contract, at request of others, stops running of statute as to all. National Bank of Delavan v. Cotton, 9 N. W. Rep. 926; Pitts v. Hunt, 6 Lans. 146; Whipple v. Stevens, 2 Fost. (N. H.) 219. Payment by one of two joint obligors in presence of the other will take out of statute. Mainzinger v. Mohr, 3 N. W. Rep. 183. But it has been held that proof of partial payment by one partner, after the dissolution of the partnership, cannot be introduced to stop the running of the statute of limitations. Cronkhite v. Herrin, 15 Fed. Rep. 888. And it has been held that a part payment or new promise by one co-surety will not operate to keep alive the obligation as to a co-surety who was not privy to it, or in no way participated in it. Probate Judge v. Stevenson, 21 N. W. Rep. 348.
(11) War. The existence of war suspends the statute of limitations as between citizens of the adverse belligerent powers, but not as between citizens of the same power. Cross v. Sabin, 13 Fed. Rep. 308. And it is said if the means provided by law for the issuance and service of process exist, whereby injured parties can commence suit, the court is not 'closed,' although the stated sessions are not regularly held at the times appointed by law, and the probabilities are that a suit then brought would not be tried until after the cassation of hostilities. Cross v. Sabin, 13 Fed Rep. 308. And it has been held that where the United States has consented to be sued in the court of claims on a certain class of claims, and a citizen is prevented from bringing a suit on such a claim within the time specified, by reason of his connection with the Rebellion, he will be barred. Kendall v. U. S., 2 Sup. Ct. Rep. 277.
4. SUIT—WHEN COMMENCED. Where the statute provides that a suit is commenced by 'delivering of the original notice' to the proper officer, with intent that it be served immediately, the delivery to such officer of a 'notice' in which the appearance day is left blank, and to be filled by such officer on service of the writ, is not such a commencement of an action as will bar the running of the statute of limitations. Phinney v. Donahue, 25 N. W. Rep. 126. Where a creditor filed a petition, and on the same day a notice was put in the hands of the sheriff, who neglected to serve it, and delivered it to plaintiff's attorney, who lost it, it was held that no action was commenced. Wolfenden v. Barry, 22 N. W. Rep. 915. A suit in law is not commenced, so as to avoid the statute of limitations, until the writ is completed, with the intention of making immediate service. Clark v. Slayton, 1 Atl. Rep. 113; Robinson v. Burleigh, 5 N. H. 225; Graves v. Ticknor, 6 N. H. 537; Hardy v. Corlis, 21 N. H. 356; Mason v. Cheney, 47 N. H. 24; Brewster v. Brewster, 52 N. H. 60. A suit in equity is not commenced, so as to avoid the statute of limitations, until the bill is filed in the clerk's office. Clark v. Slayton, 1 Atl. Rep. 113; Leach v. Noyes, 45 N. H. 364.
5. PLEADING AND PEACTICE. A plea of the statute of limitations was formerly regarded by the courts as dishonorable, and not to be favored. Hurley v. Cox, 2 N. W. Rep. 705; Perkins v. Burbank, 2 Mass. 81; Willet v. Atterton, 1 Wm. Bl. 35. And to be made available to-day it must be specially pleaded, in absence of statute to the contrary. Zeilin v. Rogers, 21 Fed. Rep. 103; Brush v. Peterson, 6 N. W. Rep. 287; Leavitt v. Oxford & Geneva Silver Min. Co. of Utah, 1 Pac. Rep. 356; Grant v. Burr, 54 Cal. 298; Tarbox v. Supervisors, 33 Wis. 445; Mead v. Nelson, 52 Wis. 402; S. C. 8 N. W. Rep. 895; Lockhart v. Fessenich, 17 N. W. Rep. 302; Plumer v. Clarke, 18 N. W. Rep. 467;
Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Ward v. Walters, 22 N. W. Rep. 844; Clarke v. Lincoln Co., 54 Wis. 578; S. C. 12 N. W. Rep. 20; Wisconsin Cent. R. Co. v. Lincoln Co., 57 Wis. 137; S. C. 15 N. W. Rep. 121; Crowe v. Colbeth, 24 N. W. Rep 478. But it was recently held by the United States circuit court for the district of California that a formal plea of the statute, or of the special facts, is not necessary in equity to raise the defense of laches, neglect, or acquiescence. Lakin v. Sierra Buttes Gold Min. Co., 25 Fed. Rep. 337.
The statute of limitations, as a defense to an action, must be pleaded, or it will be considered waived by the defendant. Phinney v. Donahue, (Iowa,) 25 N. W. Rep. 126; Atchison & N. R. Co. v. Miller, 21 N. W. Rep. 451; Taylor v. Courtnay, 15 Neb. 196; S. C. 16 N. W. Rep. 842. The rule that the statute of limitations must be pleaded is limited to cases in which an opportunity to plead it has been given. Dreutzer v. Baker, 18 N. W. Rep. 776; Heath v. Heath, 31 Wis. 223. See Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Gans v. Insurance Co., 43 Wis. 108, 115; Waddle v. Morrill, 26 Wis. 611; Harris v. Moberly, 5 Bush, 556; Mann v. Palmer, 41 * N. Y. 177, 188. However, in some states, it is unnecessary to plead the statute of limitations when it appears on the face of the petition or bill that the cause of action was barred at the time the suit was instituted. Baxter v. Moses, (Me.) 1 Atl. Rep. 350; Hurley v. Cox, 2 N. W. Rep. 705; Sturges v. Burton, 8 Ohio St. 215; Bissell v. Jaudon, 16 Ohio St. 498, 504; Delaware Co. v. Andrews, 18 Ohio St. 49; Peters v. Dunnells, 5 Neb. 460; Hurley v. Estes, 6 Neb. 386. The plea of the statute of limitations is a plea to the remedy, and to be governed by the lex fori. Star Wagon Co. v. Matthiessen, 14 N. W. Rep. 107; Townsend v. Jemison, 9 How. 420; McElmoyle v. Cohen, 13 Pet. 327. In absence of statutory provision to the contrary, where parties to a suit fail at the proper time to interpose the defense of bar by the statute of limitations, it cannot be afterwards made available, Welsh v. McGrath, 10 N. W. Rep. 810; Retzer v. Wood, 3 Sup. Ct. Rep. 164; and it is not error, or an abuse of discretion, in trial court to refuse to allow amendments setting up statute of limitations where suit is between original parties. Morgan v. Bishop, 21 N. W. Rep. 263; Plumer v. Clarke, 18 N. W. Rep. 467; Fogarty v. Horrigan, 28 Wis. 142; Eldred v. Oconto Co., 30 Wis. 206; Meade v. Lawe, 32 Wis. 266; Dehnel v. Komrow, 37 Wis. 336.
As a rule the objection that the action was not commenced within the time limited can only be taken by answer, Hurley v. Cox, 2 N. W. Rep. 705; and cannot be raised by demurrer. State v. McIntire, 12 N. W. Rep. 593; State v. Hussey, 7 Iowa, 409; State v. Groome, 10 Iowa, 308. But it has been held that where the statute of limitations is relied upon as a defense in an action of ejectment, 'the objection that the action was not brought within the time limited can only be taken by answer,' except where the facts by which the statute operates as a bar are sufficiently stated in the complaint, when the objection may be taken by demurrer, which will be considered as an answer. Paine v. Comstock, 14 N. W. Rep. 910; Howell v. Howell, 15 Wis. 55.
Where no facts are alleged upon which to base the defense of the statute of limitations, such defense is not available to the defendant, Plumer v. Clarke, 18 N. W. Rep. 467; Smith v. Dregert, 18 N. W. Rep. 732; Morgan v. Bishop, 56 Wis. 284; S. C. 14 N. W. Rep. 369; Paine v. Comstock, 57 Wis. 159; S. C. 14 N. W. Rep. 910; but where the statute is informally pleaded, evidence is not thereby excluded. Haseltine v. Simpson, 17 N. W. Rep. 332. The statute is sufficiently pleaded by reference in the answer to the section of the Code. Packard v. Johnson, 4 Pac. Rep. 632. Where an action is founded on fraud,
the petition should set forth when the fraud was discovered. Doyle v. Doyle, 7 Pac. Rep. 615; Young v. Whittenhall, 15 Kan. 579.
The plea of the statute of limitations cannot avail third persons as against the parties, Brigham v. Fawcett, 4 N. W. Rep. 272; and can only be pleaded in bar of a tax title by one who is, or claims through, the true owner, Lockridge v. Daggett, 2 N. W. Rep. 1023; yet an agent may plead the statute of limitations for his principal. King v. National Min. & Exp. Co., 1 Pac. Rep. 727. And it has been held that where statute of limitations bars a cause of action against the agent of an undisclosed principal, no suit can be maintained against the principal when he is discovered. Ware v. Galveston City Co., 4 Sup. Ct. Rep. 337.
When the statute of limitations is set up as a defense, a finding that 'all the allegations of plaintiff's complaint are true' is not a finding on the issue of the statute of limitations. Lewis v. Adams, 7 Pac. Rep. 779. Where plaintiff fails to file a replication within the time allowed, where the answer includes a plea of the statute of limitations, containing a negative pregnant, a motion by defendant for judgment against plaintiff should not be sustained. Gannon v. Dyke, 5 Pac. Rep. 845.
A party asserting the statute of limitations must set forth facts showing that the statute has run. Tredway v. McDonal, 2 N. W. Rep. 567. But in pleading a new promise, which is relied on to take the debt out of the operation of the statute of limitations, it need not be set out that such promise or agreement, from which a new promise will be inferred, was in writing, as that will be presumed until contrary is shown. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67. In an action for conversion, where the defendant sets up the statute of limitations, it is incumbent upon him to prove the time of the conversion, and that the statute has run against the same, Wright v. Ward, 4 Pac. Rep. 534; and in a complaint, an averment which anticipates a defense by proposing to show that no bar to the action has arisen according to the statute of limitations, is bad. Brooks v. Bates, 4 Pac. Rep. 1069.
A bankruptcy statute is in effect a statute of limitations, and, like any other statute of limitations, must be pleaded,—taken advantage of either by demurrer or answer. Bartles v. Gibson, 17 Fed. Rep. 293.
It has been held a foreign corporation cannot avail itself of the statute of limitations in New York. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261.
A plea of the statute of limitations may be interposed as well in equity as at law, without changing the character of the action, so as to entitle the defendant to a jury trial. Hancock v. Plummer, 5 Pac. Rep. 514. See Dominguez v. Dominguez, 7 Cal. 426; Brandt v. Wheaton, 52 Cal. 430.
6. COUNTER-CLAIM. The statute of limitations runs against a counter-claim not a mere defense. Folsom v. Winch, 10 N. W. Rep. 629. But a counter-claim, barred by the statute of limitations, may be pleaded if it way the property of the party when it became barred, and was not barred when the claim sued on originated. Folsom v. Winch, 19 N. W. Rep. 305.
7. IN EQUITY. In the consideration of purely equitable rights and titles,
courts of equity act in analogy to statutes of limitation, but are not bound by them. Hickox v. Elliott, 22 Fed. Rep. 13; Hall v. Russell, 3 Sawy. 515; German-American Seminary v. Kiefer, 4 N. W. Rep. 636; District Tp. of Spencer, Clay Co., v. District Tp. of Riverton, 17 N. W. Rep. 105; Relf v. Eberly, 23 Iowa, 467. But courts of equity will not follow the statute of limitations when manifest wrong and injustice would result, Fogg v. St. Louis, H. & K. R. Co., 17 Fed. Rep. 871; are only bound to apply the statute where their jurisdiction is concurrent with that of a court of law. Etting v. Marx's Ex'r, 4 Fed. Rep. 673. And when they do apply them the lex fori governs the question of limitations. Walsh v. Mayer, 4 Sup. Ct. Rep. 260.
In equity, as well as at law, a statute of limitations is a bar when the conflicting titles are adverse in their origin, and one was equitable and the other legal, Fussell v. Hughes, 8 Fed. Rep. 386; Fussell v. Gregg, Id. 384; that where a trustee and his cestui que trust are parties on one side, and other parties in adverse interest on the other, courts of equity are bound by the statute of limitations. Livesay v. Helms, 14 Grat. 441.
(a) Laches, etc. A court of equity, however, does not act in analogy to the statute of limitations where there has been gross laches in prosecuting claims, or long and unreasonable acquiescence in the assertion of adverse rights, Etting v. Marx's Ex'r, 4 Fed. Rep. 673; for in equity rights are forfeited by laches, Hough v. Coughlan, 41 Ill. 131; Mitchell v. Berry, 1 Metc. (Ky.) 619; Davison v. Jersey Co., 71 N. Y. 333; State v. West, 68 Mo. 229; Atkinson v. Robinson, 9 Leigh, 393; Robertson v. Read, 17 Grat. 544; Harrison v. Gibson, 23 Grat. 212; Hudson v. Hudson, 3 Rand. 117; or by acquiescence, Kent v. Jackson, 14 Beav. 384; Stiles v. Guy, 1 Hall & T. 523; Ex parte Morgan, Id. 328; 2 Perry, Trusts, § 870; and it is well settled that where the facts alleged in the bill disclose laches on the part of the complainant, the court will refuse relief on its own motion, even where the defense of laches is not pleaded. Credit Co. v. Arkansas Cent. R. Co., 15 Fed. Rep. 46; Sullivan v. Portland, etc., R. Co., 94 U. S. 806; Board of Com'rs Leavenworth Co. v. Chicago, R. I. & P. Ry. Co., 18 Fed. Rep. 209; Johnson v. Florida, T. & P. R. Co., Id. 821. Quaere, whether the doctrine of laches or lapse of time can ever be invoked in a suit to which a statute of limitations applies. Sheldon v. Keokuk Northern Line Packet Co., 8 Fed. Rep. 769. Lapse of time is one of the defenses peculiar to a court of equity. Hancock v. Plummer, 5 Pac. Rep. 514; Dominguez v. Dominguez, 7 Cal. 426; Brandt v. Wheaton, 52 Cal. 430. After a lapse of 12 years from a settlement, a demand will be regarded as stale in equity. Clute v. Frazier, 12 N. W. Rep. 327. See 1 Story, Eq. § 592.
(b) Pleading and Practice. Under the rules of pleading and practice in equity, it is necessary that the cause or reason which prevented the statute of limitations or prescription from running in the particular case should be stated in the bill, in order to be permitted to offer evidence thereof. Boyd v. Wyley, 18 Fed. Rep. 355. A plea of the statute of limitations to a bill in equity is a pure plea, and need not be accompanied by an answer, unless the defense is anticipated by the bill, and some equitable circumstance is alleged therein for the purpose of avoiding the statute. West Portland Homestead Ass'n v. Lownsdale, 17 Fed. Rep. 205.
A plea of the statute of limitations to a note given for purchase money is not good in bar of a decree in rem for a sale of the lands. Hall v. Denckla, 28 Ark. 507; Birnie v. Main, 29 Ark. 591. But it is good as a bar to the recovery of a personal judgment against the maker of such note.
Buckner v. Street, 15 Fed. Rep. 365. Where a note and mortgage have been assigned to secure another note transferred, the fact that the statute of limitations has run as to the original note assigned, and the note the mortgage was given to secure, will not prevent a foreclosure of the mortgage. Potter v. Strausky, 4 N. W. Rep. 95; Wiswell v. Baxter, 20 Wis. 680; Kennedy v. Knight, 21 Wis. 340; Knox v. Galligan, Id. 470; Edgerton v. Schneider, 26 Wis. 385. A suit in equity may be main to enforce a security for a debt, although an action against the debtor directly upon the indebtedness is barred by the statute of limitations. Hickox v. Elliott, 22 Fed. Rep. 13.
The debt still exists for the purpose of enforcing any lien or pledge given to secure its payment. Quantock v. England, 5 Burr. 2628; Sparks v. Pico, 1 McAll. 497; Myer v. Beal, 5 Or. 130; Goodwin v. Morris, 9 Or. 322; 2 Pars. Cont. 379. On the other hand, it has been held that a mortgage is but the incident of the debt, Hurley v. Cox, 2 N. W. Rep. 705; Kyger v. Ryley, 2 Neb. 28; Richards v. Kountze, 4 Neb. 208; Webb v. Hoselton, Id. 317; and that no action to foreclose can be maintained after the statute has run against the debt or note. Hurley v. Cox, 2 N. W. Rep. 705.
(c) Federal Courts. Federal courts of equity usually follow, by analogy, the state statute of limitations; but they will not do so when the effect of such a statute in any case is to limit their general chancery jurisdiction, Tice v. School-district No. 18, 17 Fed. Rep. 283; Bisbee v. Evans, 17 Fed. Rep. 474; and they give the statutes of limitations of the states the construction and effect given them by local tribunals, because such construction is binding upon all federal courts, Moores v. Citizens' Nat. Bank, 11 Fed. Rep. 624; Taylor v. Holmes, 14 Fed. Rep. 498; and will consider equitable rights as barred by the same limitations, where nothing has been done or said directly or indirectly to recognize such equitable claims by the adverse possession. Taylor v. Holmes, 14 Fed. Rep. 498. Where a claim has become barred by the statute of limitations, the federal equity courts may refuse to interfere, after the lapse of a considerable length of time, on grounds of public policy. McKnight v. Taylor, 1 How. 161. See Badger v. Badger, 2 Wall. 89; Brown v. County of Buena Vista, 95 U. S. 157; Goddin v. Kimmell, 99 U. S. 211; Wood v. Carpenter, 101 U. S. 135. And although a state statute of limitations may make no exception in favor of a party who is prevented from suing by reason of a concealed fraud, federal courts of equity will enforce such an exception, because it is a part of the chancery law as administered in those courts which the state cannot change. Tice v. School-district No. 18, 17 Fed. Rep. 283; Bisbee v. Evans, 17 Fed. Rep. 474.
(d) Admiralty. Whether a claim will be held stale in admiralty does not depend so much upon lapse of time as upon change of circumstances affecting the rights and conditions of parties. Coburn v. Factors' & Traders' Ins. Co., 20 Fed. Rep. 644. Semble, the statute of limitations is followed by analogy in admiralty, as in equity, where no special equitable reasons exist against its application. Scull v. Raymond, 18 Fed. Rep. 547.
8. STATE. The statute of limitations does not run against claims of the United States. U. S. v. Spiel, 8 Fed. Rep. 143. As against the state, the rule expressed in the English common law by the maxim nullum tempus occurrit regi obtains, and the statute does not run. Blazier v. Johnson, 9 N. W. Rep. 543. But it has been held that a state is barred by statute of limitations,
and can give no title by selling an old tax-list for premises that have been held adversely long enough to bar ejectment from them. Chamberlain v. Ahrns, 20 N. W. Rep. 814.
9. CONSTRUCTION. Statutes of limitations are intended to cure defects which could be taken advantage of by action brought within the time limited, and not to cure defects which limitation could not cure. Dreutzer v. Smith, 14 N. W. Rep. 465. See Mead v. Nelson, 52 Wis. 402; S. C. 8 N. W. Rep. 895; Clarke v. Lincoln Co., 54 Wis. 578, 580; S. C. 12 N. W. Rep. 20; Smith v. Todd, 13 N. W. Rep. 488. Statute of limitations does not apply to a judgment that is void for want of jurisdiction to render it. Smith v. Griffin, 13 N. W. Rep. 423. Statute of limitations not available as a defense in an attack on a void tax deed. McGavock v. Pollock, 14 N. W. Rep. 659; Sutton v. Stone, 4 Neb. 319. See, also, Atkins v. Atkins, 9 Neb. 191; S. C. 2 N. W. Rep. 466. The rule that a cause of action once barred by the statute of limitations is not revived by the repeal of the statute is founded upon the principle that a person cannot be divested of his vested rights of property by mere legislative enactments: hence it only applies where the statute entirely extinguishes the right, and vests perlect title in the adverse holder, and not to statutes which merely bar certain remedies, or forms of actions, but leave the rights of property unaffected, and capable of being tested in other forms of action. Kipp v. Johnson, 17 N. W. Rep. 957. The exemptions from the operation of statutes of limitations usually accorded to infants and married women do not rest upon any general doctrine of the law that they cannot be subjected to their action; but in every instance upon express language in those statutes giving them time after majority, or after cessation of coverture, to assert their rights. Vance v. Vance, 2 Sup. Ct. Rep. 854. Courts cannot ingraft on statutes of limitations exceptions not clearly expressed; and where the language of the statute is perfectly clear, it is the duty of the court to enforce the law as it finds it. Amy v. City of Watertown, 22 Fed. Rep. 418.
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