(Jnrnf U Ham ^rlynnl Slibraty Cornell University Library KF8881.H871916 V.2 A treatise on the limitation of actions 3 1924 020 071 779 Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020071779 A TREATISE ON THE LIMITATION OF ACTIONS AT LAW AND IN EQUITY By H. G.%OOD Aathor ol "The Law of Nuisances," " Master and Servant," " Plro Insuranca," " liandlord and Tenant," " Law of Eailroads," Etc THIRD EDITION By JOHN M. GOULD. Ph. D. AothoT of " Waters," Joint Author of " Qould and Tucker's Notes on the TJ. S. Statutes,' Editor of Kent's Commentaries (14tb Ed.), Eto. FOURTH EDITION REVISED AND ENLARGED By DEWITT C. MOORE, of the New York Bar Author of "Carriers," and "Fraudulent Conveyanoea" IN TWO VOLUMES VOL. II. Albany, N. Y. MATTHEW BENDEE & COMPANY, INOOEPORATBD. 1916. COPYBIGHT, 1882, bt h. g. wood. COPTEIGHT, 1893, Bt the boston BOOK COMPANY. COPYEIGHT, 1901, Bt the BOSTON BOOK COMPANY. COFTEIGHT, 1916, By MATTHEW SENDEE & COMPANY, n^COBFOBATED. WM. BOTD PEHfTING Ca AUBANT, N. T. TABLE OF CONTENTS. VOLUME n. OHAPTEK XVI. MiscEj^LANEous Causes OF AcTioisr. PAGE SnoTiow 141. Contracts, express or implied 756 142. Deposits, certificates of deposits, etc 758 142a. Money received by one for the use of another 763 143. Money misappropriated 764 143a. Forged or invalid instruments 765 144. Money had and received 766 l44a. Implied warranty 767 145. Sureties, indorsers, etc 768 146. Contract of indemnity, guaranties, etc 776 147. Money paid for another 779 148. Action under enabling acts 779 149. Actions against stockholders of corporations 780 150. Stock subscriptions 783 151. Money payable by installments 785 152. Over-payments. Money paid by mistake 786 153. Failure of consideration 787 154. Sheriffs, actions against, for breach of duty : 789 155. Fraudulent representations in sale of property 791 156. When leave of court to sue is necessary. Effect of, on com- mencement of limitation 792 157. Orders of court 793 158. Property obtained by fraud 793 159. Promise to marry 794 160. Contracts void under statute of frauds. Actions for money paid under 794 161. Against heirs, when tenancy by curtesy or dower exists. . 795 162. Actions against sureties on administrator's bonds, etc 795 163. Actions against guardians, by wards 796 164. Assessments, taxes, etc 797 (iii) iv Table oa? Contents- FAQB Section 165. Agreement to pay incumbrances 797 166. General provisions ■ 798 167. For advances upon property 798 168. Usurious interest 799 169. Between tenants in common of property 799 170. When the lav? gives a lien for property sold 800 171. Co-purchasers, co-sureties, etc 800 CHAPTER XVII. Specialties. SEcmoN 172. Sealed instruments 802 173. Covenants, quiet enjoyment, etc 800 174. Covenants of warranty, against incumbrances, etc... 818 175. Bonds 819 176. Effect of acknowledgment of payment on specialties.. 822 176a ( 1 ) . Sealed instruments in general. Limitations applicable 824 176a(2). What constitutes instrument under seal in general.. 824 176a(3). Mortgages , 826 176a ( 4 ) . Sealed note or indorsement thereon 827 176a(5). Coupons 828 176a ( 6 ) . Covenants in conveyance 828 176a (7). Bonds in general 829 176a(8). Official bonds 830 176b(l). Covenants and conditions in general. Accrual of right of action 832 176b(2). Covenants in sale or conveyance 833 176b (3). Bond or contract of suretyship in general 835 176b (4). Guardian's bond 837 Sectiow 177. 178. 179. 180. 181. 182. 183. 184. CHAPTEE XVIII. ToETS Quasi e Conteacttj. Time runs from date of tort 839 Consequential injury 840 Negligence 844 Nuisances 848 Action must be brought before prescriptive right has been acquired 848 What requisite to establish prescriptive right 851 Trover 850 Trespass, assault, etc ggO Table of Contents. v PAQB Bectcon 185. Criminal conversation 861 186. Seduction 862 187. Failure to perform duty imposed by statute 862 187a. Torts in general. Limitations applicable 862 187b. Injuries to the person 865 187c. Injuries to property 869 187d(l). Torts in general. Accrual of right of action 874 187d(2). Negligence 875 187d(3). Negligence in performance of professional services. . . 876 187d(4). Injuries to person 877 187d(5) . Injuries to property in general 879 187d(6). Continuing injury in general 883 187d(7). Injuries to property by fiowage, diversion or obstruc- tion of Viraters 886 187d(8). Wrongful seizure of property 891 Skotion 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 199a. 199b. 199c(l). 199c (2). 199c (3). 1990(4). CHAPTER XIX. Executors and Administrators. Executor may pay barred debts or not, in his discre- tion 892 Effect of statute when creditors is executor or admin- istrator; when debtor is executor, etc 901 Acknowledgment by an executor 903 What acknowledgment by an executor is sufScient.. 911 Where executor is also devisee in trust 911 Where statute has run against debt before testator's death 911 When statute has begun to run during the life of tes- tator 912 Executors de son tort 918 Statutory provisions relative to suits in favor of de- cedents' estates 919 When parties in interest may set up the statute 921 Eight of executor to set off debt barred 922 Rule in equity as to claims against decedent's estate. . 923 Death of person entitled to sue 929 Accrual of cause of action before issuance of letters testamentary or of administration 934 Death of person liable in general 940 Effect of administration of estate of decedent or want thereof 941 Death of person jointly liable 944 Death after commencement of action 946 vi Table of Contestts. CHAPTER XX. Tettsts and Tettstees, PAGE Suction 200. General rule 948 201. Express trusts 958 202. Assignees in bankruptcy, insolvency, etc 960 203. Cestui que trust in possession 962 204. Guardians 963 205. Executors as trustees 964 206. Executor or administrator of a trustee 967 207. Power to sell property 968 208. Effect on cestui que trust when trustee is barred. Sale of trust estate 969 ^ 209. Factors and agents 970 210. Partners 972 211. Acknowledgment by one partner 975 212. How trustee may put statute in operation in his favor 977 213. Exceptions to the rule relative to express trusts.. 979 214. Stale trusts not favored in equity 981 215. Constructive or resulting trusts 982 216. Mistake of trustee in possession 984 217. Funds of societies vested in trustees 984 218. The liability of trustee for breach of trust creates trust debt 985 219. Vendor and vendee of land 985 220. Purchaser of property for benefit of another 989 220a ( 1 ) . Existence of trust. In general 990 220a{2) . When relation exists in general 992 220a (3) . Possession of property 996 220a ( 4 ) . Express or continuing trust 996 220a(5). What constitutes express or continuing trust.... 1001 220a ( 6 ) . Eesulting or implied trust 1004 220a(7). What constitutes resulting or implied trust 1006 220a ( 8 ) . Constructive trust 1008 220a (9). What constitutes constructive trust 1009 220a (10). Rights of parties claiming under trustee 1011 220a (11). Termination of trust 1011 220b(l). Repudiation or violation of trust. In general ... . 1013 220b (2). Necessity for disclaimer or repudiation 1014 220b (3). What constitutes repudiation or violation of trust. 1020 220b (4) . Notice of repudiation 1024 Table of Contents. vii CHAPTER XXI. MOETGAGOE AND McETGAQEE. PAGE Sfctiott 221. Eelation of, to the property 1029 222. Distinction between note or bond, and the mortgage given to secure its payment. Periods of limitation as to, in the several states 1037 223. Statutory provisions relative to mortgages 1043 224. When statute begins to run in favor of or against the mortgagor 1047 225. Right of redemption barred, when 1049 226. When mortgagor is in possession of a part of the premises 1051 227. Liability of mortgagee in possession 1051 228. Welsh mortgages 1053 229. Presumption of payment. Effect of part payment 1054 230. Effect of acknowledgment or new promise upon the mort- gage 1057 231. Effect of fraud on part of mortgagee 1058 232. Distinction between equitable lien for purchase-money and mortgage 1059 233. Distinction between a pledge and a mortgage. Difference in application of statute to the one and the other. . . . 1061 234. Discharge of mortgage debt, effect of 1063 '235. Mortgagee in possession 1063 236. Absolute conveyances, but in fact mortgages 1066 CHAPTER XXII. Disabilities in Peesonal Actions. Section 237. Saving clauses in statutes in favor of plaintiffs... 1070 237a ( 1 ) . Disabilities in general 1078 237a(2). Disability of part of several jointly interested 1079 238. Infancy '. 1080 238a ( 1 ) . Infancy. In general 1082 238a(2). Personal actions 1085 238a(3) . Actions for recovery of real property 1089 238a ( 4 ) . Effect of marriage 1097 238a ( 5) . Effect of absence or nonresidence 1097 238a(6). Effect of action during disability 1098 239. Insane persons, non compotes, etc 1100 239a (1). Insanity and other incompetency 1101 239a(2f. Kemoval of disability 1106 viii Table of Contents. PAGE Skction 240. Coverture ^■'"' 240a(l). Coverture. In general 1112 240a(2). Eflfect of separate acta HI* 240a(3). Nature of property or cause of action involved 1117 240a(4). Claim by vfife against husband 1118 240a(5). Claim to real property in general 1121 240a (6). Recovery of property disposed of by husband 1124 240a (7). Recovery of property purporting to have been con- veyed by wife 1128 240a (8). Effect of separation from husband 1128 240a (9). Effect of disability on joint action of husband and wife 1129 240a(10). Effect on husband of wife's disability 1131 240a (11). Effect on husband's right to wife's property 1132 240a (12). Effect on wife's heirs of surviving husband's in- terest 1132 241. Imprisonment 1134 242. Alien enemy .• . . . 1136 242a ( 1 ) . Disability intervening after accrual of cause of ac- tion. In general 1136 242a(2). Infancy 1138 242a(3). Coverture 1139 242a(4). Insanity 1140 243. Injunction 1141 244. Absence of defendant from state, statutory provi- sions as to 1143 245. What constitutes absence from the state 1148 245a. Absence at time of accrual of cause of action 1151 245b. Departure after accrual of cause of action ..... 1157 246. Joint debtors, absence of one, effect of 1161 247. Residence need not be continuous 1162 247a ( 1 ) . Nonresidence. In general 1 164 247a ( 2 ) . Persons entitled to sue 1166 247a(3). Persons liable 1167 247a (4). Nature of residence 1169 247a(5). Actions relating to specific property or interests therein 1170 247a (6). Effect of agency within jurisdiction 1172 247a (7). Corporations 1172 247b. Return and residence after absence 1174 248. Absconding debtors 1175 249. Concealment 1176 249a (1). Concealment of person or residence. In general.. 1176 249a (2). Ignorance of person entitled to sue 1179 249b. Concealment of property involved or liable 1180 Table of Coittents. ix FA<9E Section 249c. EflFect as to parties jointly or severally liable, guarantors, and sureties IISI 250. Foreign corporations 1182 251. Cumulative disabilities 1183 251a. Co-existing disabilities 1188 251b. Tacking successive disabilities , 1189 252. Disability must be one provided by statute 1192 253. Disability of defendants 1195 CHAPTEK XXIII. Pendency of Legjal Peoceedings, Injunction, oe Stat. Section 253a (1). Pendency of action or other proceeding. In general 1196 253a (2). Pendency of action on different cause or in different forum 1199 253b. Pendency of appeal , 1201 253c. Suspension or stay in general 1203 253d. Supersedeas or stay of proceedings 1203 253e. Pendency of arbitration or reference 1206 253f. Property in custody of the law 1207 253g. Pendency of proceedings under assignment for cred- itors or in insolvency or banlcruptcy 1209 253h. Injunction 1213 253i. Stay laws .' 1216 253j. Suspension of statute of limitations 1217 CHAPTEE XXIV. Adveese Possession and Eeal Actions. Section 254. Title by, under statutes 1219 255. Statutory provisions as to adverse possession 1225 256. What constitutes a disseisin under these statutes.. 1227 257. Entry or possession without color of title 1237 258. Occupancy where premises are not enclosed 1242 259. Entry and possession with color of title 1249 260. Executory contracts, etc., possession under 1264 261. Mixed possession 1270 262. Limits upon the operation of possession by construc- tion 1273 263. Possession by mistake 1276 264. Grantor in possession 1278 265. Landlord and tenant 1279 266. Co-tenants 1287 267. What possession will sustain constructive possession 1290 Section 268. 269. 270. 271. 272. 272a(l). 272a(2). 272a (3). 272a(4). 272a ( 5 ). 272a(6). 272a(7). 272a{8). 272a(9). 272b(l). 272b(2). 272b(3). 272b(4), 272b (5), 272b (6) 272b{7) 272b (8) 272c. Table of Contents. PAGE How adverse possession may be proved 1299 Continuity of possession ^^^^ How the continuity of the possession may be broken 130* Tacking possession -^^l" Effect of bringing ejectment 1315 Recovery of real property in general. Limitations applicable 1^1^ Actions at law in general 1319 Equitable actions 1320 Partition 1323 Foreclosure of mortgage or deed for security 1324 Redemption from mortgage or deed for security 1327 Title, under forced sale 1328 Establishment of lost deed 1331 Enforcement of vendor's lien 1331 Title to or possession of real property in general. Accrual of right of action 1332 Nature of entry or possession 1333 Title to support action in general 1335 Title under forced or judicial sale 1338 Title or right of parties to mortgage or deed aa security 1339 Eights of heirs and devisees 1341 Tacking successive possession or right 1344 Forcible entry and detainer 1345 Recent English decisions 1345 CHAPTEE XXV. DOWEE. Section 273. Not within the statute, unless made so expressly. . 1351 273a ( 1 ) . Proceedings for assignment or recovery of dower. » Limitations applicable 1354 273a (2). Actions for dower. Limitations and laches 1355 CHAPTEE XXVI. Fraud, Ignoeance, Mistake, anb Concealment op Cause of Action, Section 274. Statutory provisions as to fraud 1358 275. Equitable rule in cases of concealed fraud 1362 276. Instances in which the statute will not run until fraud is discovered 1368 276a ( 1 ) . Fraud as ground of relief. In general 1376 276a (2). Fraud in obtaining possession of or title to property 1379 Table op Contents. XI Section 276a ( 3 276b (1 276b (2 276b (3 276b (4 276b (5 276b (6 276b (7 276b (8 276b (9 276b (10 276b (11 276b (12 276b (13 276c (1 276e(2 276d(l 276d(2 276e. 276f(l 276f(2 276f(3 PAGE •Cancellation of instrument 1380 Discovery of fraud. In general 1381 What constitutes cause for relief on ground of fraud 1383 Fraud in obtaining possession of or title to prop- erty 1386 Fraud in obtaining judgment , 1389 Action for deceit 1390 Fraud in sale of property 1391 Fraud of person acting in ofiBoial or fiduciary ca- pacity 1392 Fraud of agent or attorney 1395 Actions to open account or settlement 1397 Cancellation of instruments 1399 Diligence in discovering fraud 1401 What constitutes discovery of fraud 1403 Constructive notice of fraud 1406 Ignorance of cause of action. In general 1408 Want of diligence by person entitled to sue 1412 Mistake as ground for relief. In general 1414 Discovery of mistake 1416 Duress as ground for relief 1419 Concealment of cause of action. In general 1419 What constitutes concealment 1422 Concealment by agent or third person 1424 CHAPTEE XXVII. Mutual Accounts, Accounts in G-eneeal, Etc. Section 277. Statutory provisions as to mutual accounts 1426 278. What are mutual accounts 1428 278a. What are mutual accounts. Recent decisions 1432 279. Merchants' accounts 1436 280. Stated accounts 1437 280a ( 1 ) . Accounts in general. Limitations applicable 1440 280a(2) . What constitutes accounts 1441 280a ( 3 ) . Account stated 1443 280a(4) . Partnership accounts I444 280b(l). Accounts in general. Accrual of right of action 1445 280b(2). Nature of ^ account in general 1447 280b(3). Services rendered I449 280b(4). Partnership 1451 280b(5). Principal and agent I453 280c(l). Mutual accounts. Necessity for mutuality of ac- counts 1454 280c(2). Eflfect of mutuality of accounts 1454 280c(3). Closing accounts I455 xu Table of Contents. CHAPTEK XXVIIL Set-off, Eecoupment, and Defenses in Geneeal. PAGE BBCTlolf 281. Set-oflf, when statute begins to run against... 1457 281a. Set-offs, counterclaims, and cross-actions. Limita- tions applicable 1458 281b. Set-offs and counterclaims. Accrual of right of ac- tion or defense 1463 282. Bringing of action suspends statute as to defendant's claims which go to reduce plaintiff's claim 1465 283. Executor may deduct debt due estate, when 1466 284. Statutory provisions as to set-offs 1467 284a (1). Defenses in general. Limitations applicable 1467 284a(2). Fraud as a defense 1470 284b. Defenses in general. Accrual of right of action or defense 1471 284c. Effect of subsequent accrual of new cause of action. . 1471 CHAPTEE XXIX. Co-conteactoes, Etc. Section 285. Statutory provisions as to 1473 286. Grounds upon which doctrine of Whitcomb v. Whiting is predicated 1476 287. Present doctrine in this country 1476 287a. Present doctrine in this country. Recent decisions 1480 288. Assent of a co-contractor to a part payment by another. Effect of 1483 Bection 289. 290. 291. 292. 293. 294. 295. 296. CHAPTEE XXX. Judicial Peocess. When action is treated as commenced 1485 Statutory provisions relating to 1487 Date of writ not conclusive 1489 Filing claim before commissioners. Pleading, set-off, ^^'^ 1490 Mistalcen remedy, etc l^gO Amendment of process j^gj^ Must be action at law J493 Abatement of writ, dismissal of action, reversal of judg- ment, etc J^g^ Table ob' Contents. xiii CHAPTER XXXI. Commencement of Action oe Othee Peoceeding. PAGE Section 297. Mode of computation of time limited 1497 298 ( 1 ) . Proceedings constituting commencement of action in general 1499 298(2). Filing pleadings . .. 1499 299(1). Issuance and service of process. Issuance of process 1503 299 (2) . Delivery of process to officer 1505 299(3). Service of process 1507 299 (4) . Service on part of defendants 1508 299 (5) . Substituted service 1509 299 ( 6 ) . Subsequent, alias, or pluries process 1510 300. Want of jurisdiction 1512 301 ( 1) . Defects as to parties in general 1512 301(2). Amendment of defects 1514 302. Defects or irregularities in process or service 1516 303. Defects or irregularities in pleadings or other pro- ceedings 1518 304. Intervention or bringing in new parties 1519 305. Substitution of parties 1521 306. Effect as to persons not parties 1524 307(1). Amendment of pleadings in general 1525 307(2). Amendment restating original cause of action 1527 307(3). Amendment introducing new cause of action 1533 308 ( 1 ) . New action after dismissal or nonsuit or failure of former action in general 153S 308(2). Nature or form or identity of actions or proceedings. 1539 308 ( 3 ) . Abatement or abandonment of former action 1540 308 (4) . Dismissal or nonsuit in general 1541 308 (5) . New action in different forum 1546 308 (6) . Failure of action for want of jurisdiction 1547 308(7). Failure for defects as to ^parties 1549 308(8). Failure of action for want of, or defects in, process or service thereof 1550 308 (9) . Failure of action for defects in pleading 1551 308(10). Identity of, or change in parties 1553 308 ( 11 ) . Decisions on review 1553 308(12). Action on set-off or counterclaim or cause of action alleged as defense 1557 309. Civil proceedings other than actions in general 1558 310. Presentation of claim against estate of docedent 1559 311. Presentation of claim against estate of insolvent or bankrupt 1562 312. Proceedings in other court or tribunal 1564 313. Excuses for delay 1565 Appendix. The American and English statutes of limitations 1567-1689 STATUTES OF THE LIMITATION OF ACTIONS, VOLUME II. OHAPTEK XVI. I MlSCELLAliTEOUS CaUSES OF AcTION. Section 141. Contracts, express or implied. 142. Deposits, Certificates of Deposits, etc. 142a. Money received by one for use of another. 143. Money misappropriated. 143a. Forged or invalid instruments. 144. Money had and received. 144a. Implied warranty. 145. Sureties, Indorsers, etc. 146. Contract of indemnity, Guaranties, etc. 147. Money paid for another. 148. Action under enabling acts. 149. Actions against stockholders of corporations. 150. Stock subscriptions. 151. Money payable by installments. 152. Over-payments. Money paid by mistake. 153. Failure of consideration. : 154. Sheriffs, actions against, for breach of duty. 155. Fraudulent representations in sale of property. 156. When leave of court to sue is necessary. Effect of, on commence- ment of limitation. . 157. Orders of court. 158. Property obtained by fraud. 159. Promise to marry. 160. Contracts void under statute of frauds. Actions for money paid under. 161. Against heirs, when tenancy by curtesy or dower exists. 162. Actions against sureties on administrator's bonds, etc. 163. Actions against guardians, by ward, ' 164. Assessments, taxes, etc. 165. Agreement to pay incumbrances. 166. General provisions. 167. For advances upon property. 168. Usurious interest. 169. Between tenants in common of property. 170. When the law gives a lien for property sold. 171. Co-purchasers, Co-sureties, etc. (755), 756 Statutes ob Limitation. § 141. Contracts, express or implied. Upon contracts of all classes, whether written or verhal, the statute begins to run from the time when a right of action accrues.^ Thus, where goods or property of any description are sold, and no time is fixed for payment, the law implies a promise to pay when the purchase is made ; and the plaintiff cannot, by showing a cus- tom on his part to give one year's credit, prevent the running of 1. Baxter v. Gay, 14 Conn. 119; Tisdale v. Mitchell, 13 Tex. 68, 15 Tex. 480; Jones v. Lewis, 11 id. 359; Sprague v. Sprague's Estate, 30 Vt. 483; Eabsuhl v. Lack, 35 Mo. 316; Justices, etc. v. Orr, 13 Ga. 137; Clark V. Jenkins, 3 Rich. (S. C.) Eq. 318; Hayes v. Goodwins (4 Mete.) 80; Guignard v. Parr, 4 Eich. Law (S. C.) 184; Sims v. Goudelock, 6 id. 100; Payne v. Gardiner, 29 N. Y. 146; Hikes v. Crawford, 67 Ky. (4 Bush) 19; Pittsburgh, etc., E. Co. V. Plummer, 37 Pa. 413; Taggart v. Western, etc., E. E. Co., 24 Md. 563, 69 Am. Dec. 760; Davies v. Cram, 6 N. Y. Super. Ct. (4 Sandf.) 355; Daniel v. Whitfield, 44 N. C. (Busb. L.) 294; Berry v. Doremus, 30 N. J. Law 399; Waul v. Kirkman, 25 Miss. 609; Payne v. Slate, 39 Barb. (N. Y.) 634; Turner v. Martin, 27 K Y. Super. Ct. (4 Eobt.) 661; Peek V. New York, etc., U. S. Mail S. S. Co., 18 N. Y. Super. Ct. (5 Bosw.), 226; Murray v. Coster, 20 Johns. (N. Y.) 576, 11 Am. Dec. 333. In Catholic Bishop of Chicago V. Bauer, 63 111. 188, where plans of a church were completed more than five years before suit brought, but the architect furnishing them con- tinued to superintend the work until within five years of bringing the suit, when he was discharged, it was held tha.t the statute did not begin to run until the architect was discharged, and that a suit brought within five years of that time was in season to save the debt from the statute. In Clark v. Lake Shore & M. S. Ry. Co., 94 N. Y. 217, it was held that the code exemption from the operation of the statute limiting the time for the commencement of actions, a cane where a person was entitled to commence an action when the code took effect, and declaring that in such a case, "the provisions of law applicable thereto immediately before this act takes ef- fect, continue to be so applicable, notwithstanding the repeal thereof," does not refer simply to statutory pro- visions, but within the meaning of said exception a rule or doctrine es- tablished by judicial decision is a "provision of law" equally with one enacted by the legislature; and that, where the plaintiflE was entitled 'to, and had commenced his action before the code went into effect, that the provision of the code, making the statute of limitations of the place of residence of a non-resident defendant available as a defense in certain cases, did not apply; but that the case was governed by the rule in force when the code went into effect, i. e., that the statute of limitationa of a foreign State constituted no de- fense in an action brought here. Miscellaneous Causes op Action. 757. the statute from the day of sale.^ Where the terms of a contract are express, and the time of payment is agreed upon, of course the statute begins to run from that time, unless the time has heen extended by the agreement of the parties; and when a contract has been made, and the time of payment has been fixed, and more property is delivered than was to be delivered under the contract, or more or extra work is done, and no contract is made as to the time of payment for the extra goods, or extra work, the statute begins to run as soon as the goods are delivered or the extra work is completed. Thus, when a contract was entered into to build a ship at an agreed price, and afterwards the ship was built larger, but without any further agreement as to the time of payment for the extra labor, it was held that the statute began to run as soon as the work was completed.^ Where a term of credit is agreed upon, of course, the statute does not begin to run until the time of credit has expired,* and in this class of contracts little or no difficulty in determining the time when the statute begins to rim exists. The only difficulty arises with that class of contracts where the time for payment is not 2. Brent & Co. v. Ccok, 51 Ky. (13 plied by law, which arose when the B. Mon.) 267. In Hursh v. North, 40 money was received by E., that it was Pa. 241, evidence of a custom of the not barred by the six years' statute plaintiff to give a credit of six months then in force, and that money in the was held not admissible for the pur- hands of one person, to which another pose of proving that the price was is equitably entitled, may be recover- not to be paid when the goods were ed by the latter in a common-law ac- Bold, but on a certain date-thereafter, tion for money had and received, sub- so as to avoid the statute by show- ject to the restriction that the mode ing that the bill was not due until of trial and the relief which can be within the statutory period. In given in a legal action is adapted Roberts v. Ely, 113 N. Y. 138, 30 N. to the exigencies of the case, and is E. 606, where the plaintiff brought capable of adjustment in such an an action, in 1881, to recover a speci- action, without prejudice to the in- fic portion of certain insurance money terest of other parties, collected by E., the defendant's testa- 3. Peck v. New York, etc., U. S. tor, in 1873, of which portion the Mail S. S. Co., 18 N. Y. Super. Ct. (5 plaintiff claimed he was the equitable Bosw.) 336. owner, it was held that the alleged 4. Tisdale v. Mitchell, 12 Tex 68; eauae of action was a liability im- Bush v. Bush, 9 Penn. St. 260. 758 Statutes of Limit atiob". fixed, but is left to legal inference. In a contract for services, if the work is done under a continuous contract, and no time for payment is fixed, a right of action does not accrue until the work is completed ; ^ but although the work is continuous, yet if it is done under distinct contracts, a right of action accrues under each contract, and the statute begins to run from the time when it is completed.^ The statute begins to run upon a claim for the taking of usurious interest from the time when such interest is paid.' And each payment of usury furnishes a distinct cause of action against which the statute immediately commences to run.* In Louisiana, it is held that the statute does not run against a debt secured by a pledge as long as the creditor has possession of the pledge. The detention of it being treated as a constant recognition of the debt, a renunciation of prescription which pre- vents the statute from beginning to run.' § 142. Deposits, certificates of deposits, etc. In England a general deposit in a bank is treated as a loan, and the statute begins to run instanter ;'"' but in this counliry it has been 5. Eliot V. Lawton, 89 Mass. (7 gan to run on each year's wages from Allen) 274, 83 Am. Dec. 683. In the end of each year. McLaughlin Little V. Smiley, 9 Ind. 116, where in v. Maund, 55 Ga. 689; Pursell v. Fry, an action for work done for the plain- 19 Hun (N. Y.) 595, 58 How. Prac. tiff's intestate no time for payment 317. was specified, and no time of service 6. Davis v. Gorton, supra.. See was agreed on, it was held that the Decker v. Decker, lOS N. Y. 128, 15 statute did not begin to run as to any N. E. 307. of the work until the work was fully 7. Eahway National Bank v. Car- completed, although it extended penter, 52 N. J. Law 165, 19 Atl. through a series of years. But in 181. Davis V. Gorton, 16 N. Y. 255, 69 Am. 8. Albany v. Abbott, 61 N. H. 157; Dec. 694, where a person entered into Barker v. Strafford Co. Savings Bank, the defendant's employment at a fixed 61 N. H. 147. salary, but for no definite time, and 9. Citizens' Bank v. Hyams, 43 La. no time for payment was agreed on, Ann. 729, 7 So. 700. it was held to be a general hiring 10. Pott v. Clegg, 16 M. & W. 321. from year to year, the pay for each In Wright v. Paine, 62 Ala. 340, 34 year's service becoming due at the Am. Eep. 24, where money was' de- end thereof, so that the statute be- posited with an individual under a MiSCELLANEOtrS CaUSES OF AcTIOIT. 759 teld that an action cannot be maintained for such a deposit without an actual demand ; ^^ and from these cases it follows that, as a right of action does not accrue until there has been a demand, the statute of limitations does not begin to run until a demand «r something equivalent thereto has been made. If a special deposit is made, payable at a specific time, or upon notice of a certain duration, of course the statute does not begin to run until the time has expired or the notice been given and expired. Thus, in Massachusetts,^ it was held that where a balance was struck monthly on a savings-bank book of a depositor the statute began to run from the time the balance was struck. Where money or property is deposited with a bank or individual to be paid or returned upon demand, it is not payable or returnable, so that an action will lie therefor, until a demand has first been made therefor, consequently the statute does not begin to run until after demand ; ^ so where money is deposited with an individual who is to pay interest entered thereon, with an agreement that it is not to be withdrawn except by draft at thirty days after sight, the statute does not begin to run, nor does the presumption of payment arise until a draft therefor has been presented and dishonored.^* Where money is deposited with one man for the use of another, it is held that a cause of action accrues to the person for whose use it was deposited, from the time of deposit, unless a time within which it is to be paid is fixed upon ; ^' but this would seem ■writing by which the depositary ac- Bank, 49 Mass. (8 Mete.) 217, 41 Am. knowledges the receipt of a certain Dec. 500; Downes v. Phoenix Bank, number of dollars in gold, "on de- 6 Hill (K Y.) 297. posit to be paid" to the depositor "on 12. Union Bank v. Knapp, 20 Mass. •demand," it was held that, in the (3 Pick.) 96, 15 Am. Dec. 181. absence of any evidence of extrinsic 13. Finkbone' Appeal, 86 Pa. 368. facts to aid its construction, it would See infra, n. 17. be treated as a loan rather than a 14. Sullivan v. Fosdick, 10 Hun (N. bailment, and, therefore, became due Y.) 173; Payne v. Gardiner, 29 N. and payable, and the statute began Y. 146. to run thereon from its date. 15. Buckner v. Patterson, 16 Ky. 11. Johnson v. Farmers' Bank, 1 (Litt. Sel. Cas.) 234. Harr. (Del.) 117; Watson v. Phoenix 760 Statutes of Limitation. to depend upon the nature of the contract to be implied from the circumstances of the case. If the money was left with the third person at the request of the person for whom it was intended, the rule stated above would doubtless be correct; but, if not, the period from which the statute would run would seem to be, ac- cording to the cases, from the time when a demand was made for the money, unless the circumstances are such as to raise an implied promise on the part of the depositary to seek the bene- ficiary and pay him the money at all events.-'^^ Where a certificate of deposit is issued its terms may be decisive of the period when the statute attaches thereto; the statute is often held not to begin to run thereon until a demand had been made for the money,-^' and usually such a certificate is not dishonored until IG. Hutchins v. Gilman, 9 N. H. 359. 17. National Bank of Fort Edward V. Washington Co. Nat. Bank, 5 Hun (N. Y.) 605. See Smiley v. Fry, 100 N. Y. 262, 3 N. E. 186. Certificates of deposit, in the usual form, are now generally held nego- tiable; they are, in effect, promissory notes, and are . governed, with cer- tain exceptions, by the same rules as those instruments. Klauber v. Big- gerstaff, 47 Wis. 551, 3 N. W. 357, 33 Am. Rep. 773; Curran v. Witter, 68 Wis. 6, 31 N. W. 705, 60 Am. Eep. 827; Citizens' Nat. Bank v. Brown, 45 Ohio St. 39, 11 N. E. 799, 4 Am. St. Rep. 526; Mereness v. First Nat. Bank, 113 Iowa 11, 51 L. R. A. 410, ■84 Am. St. Eep. 318, 83 N. W. 711; Tobin V. McKinney, 14 S. D. 53, 84 N. W. 228, 91 Am. St. Rep. 688, aff'd 15 S. D. 257, 88 N. W. 572, 91 Am. St. Rep. 694; O'Neill v. Bradford, 1 Pinney (Wis.) 390, 42 Am. Dec. 575, and note; 14 Harvard L. Rev. 468. In Iowa and other States, a deposit of money in a bank in the usual course of business amounts to a loan to the bank, which becomes the de- positor's debtor therefor, and not his bailee. Lowry v. Polk County, 51 Iowa 50, 49 N. W. 1049, 33 Am. Eep. 114; Mereness v. First Nat. Bank, supra; 3 Am. & Eng. End. of Law, p. 826. And the depositor's death does not interrupt the running of the statute of limitations on a demand certificate given for such a deposit. Mereness v. First Nat. Bank, supra. On the other hand, the transaction is viewed in New York and certain other States not only as creating a debt, but also as being a real deposit and a bailment rather than a loan, making a demand necessary before the holder of the certificate is en- titled to a return of the money de- posited. Smiley v. Fry, 100 N. Y. 363, 3 N. E. 186; Shute v. Pacific Nat. Bank, 136 Mass. 487; Hunt, Ap- pellant, 141 Mass. 515, 6 N. E. 554; Bellows Falls Bank v. Rutland Coun- ty Bank, 40 Vt. 377; McGough v. Jamison, 107 Pa. 336; see supra, } 118, note 13. Miscellaneous Causes of Action. 761 presented.** But, wtere money is deposited in a bank from time to time, subject to check at sight, the relation between the parties is not that of trustee and cestui que trust, but of debtor and creditor. When received, in the absence of any express stipula- tion to the contrary, the money at once becomes the property of the bank, and the bank becomes the debtor of the depositor, under an implied contract to discharge the indebtedness by hon- oring the checks drawn thereon by the depositor,*^ and also to As to municipal orders, whether ne- gotiable or not, the general rule is that actions will not lie thereon till they have been presented to the proper ofBcer for payment. See Blaisdell v. School District, 72 Vt. 63, 47 Atl. 173; Pekin v. Reynolds 31 111. 529, 83 Am. Dec. 344. 18. Howell V. Adams, 68 N. Y. 314; Payne v. Gardiner, 29 N. Y. 146; Farmers' & Merchants' Bank v. Butch- ers' & Drovers' Bank, 14 N. Y. 623. Such also is the rule in Indiana. Brown v. McElroy, 52 Ind. 404. But in Meador v. Dollar Savings Bank, 56 Ga. 605, it was held that a certi- ficate of deposit payable to the order of the depositor, but containing no other indication of the time of pay- ment than was to be derived from the words, "with interest at the rate of seven per cent, on call and ten per cent." per annum is payable on de- mand, and therefore due immediately. So also in Illinois. Brahm v. Adkins, 77 111. 363; Adams v. Orange Co. Bank, 17 Wend. (N. Y.) 514; Girard Bank V. Bank of Penn Township, 89 Pa. 92, 80 Am. Dec. 507; Brummagin V. Tallant, 39 Cal. 503, 89 Am. Dec. 61. And a certificate of deposit pay- able "on return of this certificate" is payable on demand. Tripp v. Cur- tenius, 36 Mich. 494, 24 Am. Eep. 610. The demand need not be made by the depositor in person. Bank of Kentucky v. Wister, 37 U. S. (2 Pet.) 318, 7 L. Ed. 437. A demand is not necessary after the bank has rendered an account claiming it as paid. Bank of Missouri v. Benoist, 10 Mo. 519. And consequently the statute would run from the time when by its acts the bank had rendered a demand un-~ necessary (probably), or when it has given the depositor notice that his claim will not be paid. Farmers' & Mechanics' Bank v. Planters' Bank, 10 Gill. & J. (Md.) 422. 19. National Bank of the Republic V. Millard, 77 U. S. (10 Wall.) 152, 19 L. Ed. 897; Buchanan Farm Oil Co. V. Woodman, 1 Hun (N. Y.) 639; Dawson v. Real Estate Bank, 5 Ark. 283; Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; Coffin v. Ander- son, 4 Blackf. (Ind.) 395; Bank of Kentucky v. Wister, 27 U. S. (2 Pet.) 318, 7 L. Ed. 437; Albany Commercial Bank v. Hughes, 17 Wend. (N. Y.) 94; Keene v. Collier, 58 Ky. (1 Mete.) 415; Corbit v. Bank of Smyrna, 2 Harr. (Del.) 235, 30 Am. Dec. 635; Matter of Franklin Bank, 1 Paige (N. Y.) Ch. 249, 19 Am. Dec. 413; Graves v. Dudley, 20 N. Y. 76; Marsh v. Oneida Central Bank, 34 Barb. (N. Y.) 298; Lund v. Seamen's Savings 762 Statutes of Limitation. repay on the demand of the depositor any balance which may be due at the time of demand.^" This rule does not apply where the thing deposited is a commodity such as " Confederate notes," and the agreement was that the collection should be made in like notes ; ^^ nor does it apply to lands or other securities or packages of money deposited with it under a special contract that the same vshall be returned.^^ But, while the bank becomes a debtor to the extent of the deposit it is not liable to pay interest thereon in the absence of any contract to that effect. ^^ Where money is paid into court, and is placed in the custody of the clerk or other officer designated by law to have tie custody of it, the statute does not begin to run against the party mutually entitled thereto until a demand has been made for the money.^ And the same Bank, 37 Barb. (N. Y.) 129, 33 How. Prac. 358 ; Wray v. Tuskegee Ins. Co., 34 Ala. 58 ; Bank of Northern Liber- ties V. Jones, 43 Pa. 536; Downes v. Phenix Bank, 6 Hill (N. Y.) 297; Chapman v. White, 6 N. Y. 412, 57 Am. Dec. 464; Ellis v. Linck, 3 Ohio St. 66. It is held that a bank, hav- ing without objection received the bills of other banks, without diminu- tion or discount, notwithstanding that at the time of the deposit, or subse- quently thereto, they were worth less than par, is liable to pay the par value therefor. Marine Bank of Chi- cago V. Chandler, 37 111. 525, 81 Am. Dec. 249. Bank of Kentucky v. Wis- ter, supra, is a strong case upon this point. 20. Boydcn v. Bank of Cape Fear, 65 N. C. 13. And this rule is ap- plied between banks where one be comes a depositary for another. Phe- lan V. Iron Mountain Bank, 16 Bankr. Reg. (U. S.) 308, 4 Dill. (U. S.) 88. 21. Planters' Bank v. Union Bank, 83 U. S. (16 Wall.) 483, 21 L. Ed. 473; EuiEn v. Orange Co. Com'rs, 69 N. C. 498; Lilly v. Cumberland Co. Com'rs, id. 300. 22. Hale v. Eawallie, 8 Ken. 136; Smith V. First National Bank, 99 Mass. 605, 97 Am. Dec. 59 ; Lancaster Co. Nat. Bank v. Smith, 62 Pa. 47; Maury v. Coyle, 34 Md. 235. 23. Parkersburg Nat. Bank v. Als, 5 W. Va. 50. 24. In Lynch v. Jennings, 43 Ind. 376, an action was brought for the specific performance of a contract to convey certain lands. In his com- plaint A. alleged a tender and refusal of the purchase-money, and brought it into court, and it remained in the hands of th? clerk. After years of litigation a final decree was entered in A.'s favor. The executors of B. then demanded the money of the ad- ministrators of the clerk, who had died, and on their refusal to pay brought an action for its recovery. The court held that the statute did not begin to run in such cases until a demand upon the defendants for the money. Miscellaneous Causes of Aotion". 763 rule has been applied where money has been paid to a commis- sioner in equity.^^ § 142a. Money received by one for use of another. Where money is received by one to and for the use of another, under such circumstances that it is the duty of the former to pay it over, an action for money had and received may be brought to recover it without a demand, and the statute of limitations begins to run from the day of the receipt of the money. A mortgagee who has received moneys, the proceeds of sale of the mortgaged prop- erty, is not trustee of an express trust; if in any sense a trustee, it is simply an implied trust, and, as to the liability growing out of such a trust, the ordinary rules of limitation apply .^^ 25. Heriot v. McCauley, Riley (S. C.) Ch. 19. In Viets v. Union Nat. Bank of Troy, 101 N. Y. 563, 5 N. E. 457, 54 Am. Rep. 743, it was held that while a check drawn by a de- positor against a general bank ac- count doea not operate as an assign- ment of so much of the account, it authorizes the payee, or one to whom he has indorsed and delivered it, to make a demand, and a refusal of the bank to pay on presentation gives the drawer a right of action, in case he has funds in bank to meet the check and the refusal was without his authority; and that the implied con- tract between a bank and its de- positors is that it will pay the de- posits when and in such sums as are demanded, the depositor having the election to make the whole payable at one time by demanding the whole, or in instalments by demanding por- tions; and whenever demand is made by presentation of a genuine check in the hands of a person entitled to receive the amount thereof, for a por- tion of the amount on deposit, and payment is refused, a cause of action immediately arises, and the statute begins to run as against the instal- ment so made due and payable. 26. Mills V. Mills, 115 N. Y. 80, 31 N. E. 714. In this case T., the plain- tiff's intestate, deeded certain lands to the defendant, and assigned to him a mortgage as security for in- debtedness, with the understanding that the latter might sell the lands, collect the mortgage, and reimburse himself, by agreeing to re-convey on payment of the debt and expenses and all subsequent loans. During the life of T., who died in 1871, defendant sold all the lands and received the proceeds, except one item, which was received in 1872. In an action brought in 1881, for an accounting and payment over of any surplus, held, that the proceeds of the lands which came to defendant's hands af- ter he had been fully reimbursed, were received by him to and for the use of T.; it was his duty at once 764 Statutes of Limitation. ► § 143. Money Misappropriated. When money is paid to a person for a special purpose, and is by him applied to another, the statute begins to run from the date of such misappropriation. Thus, where a county treasurer, instead of applying taxes assessed on the property of a railroad corporation, in a town, to the payment or re- demption of bonds of the town, issued in aid of the con- struction of the road of such corporation, as required by the act of 1869, as amended in 1871, applied them in payment of county and State taxes, with, and as part of, other moneys, raised by the town for those purposes, it was held that an action, as for money had and received, was maintainable on behalf of the tovm against the county to recover the money so misappro- priated; that the liability included as well the portion of the funds applied in payment of the State taxes as that applied for other county purposes ; also, that the action was properly brought by the supervisor of the town in his name as its representative. The cause of action in such case arises when the misappropria- tion is made,^'' and the statute then begins to run against it. While every duty imposed upon a public officer is in the nature of a trust, persons injured by a violation of the duty for which they may maintain an action of law, must pursue that remedy within the period of limitation of legal actions; and the fact that the supervisors of the town for the period of fourteen years were apprised from year to year, while sitting as members of ike board of supervisors of the county, of the misappropriation, and made no objection thereto, did not estop the town from claiming a repayment of the money. to pay them over, and upon his fail- applied; and that, as there was no ure to do so, he was liable without unlawful interference by him with the demand; the action was barred; that, estate of the intestate after his death, by the six years' limitation, even the defendant could not be held as though an accounting was required, executor de son tort. as whatever might be the form of the 27. Strough v. Jefferson County action the legal rule of limitations Miscellaneous Causes of Action. 765 A town cannot be estopped by the neglect of its supervisors to assert a claim against the comity, the grounds of which are equally known to all the members of the board of supervisors. A county treasurer in the payment of State taxes to the State comptroller acts as agent for the coimty, and pays on its behalf.^ § 143a. Forged or invalid instruments. Where a bank pays a draft or check drawn upon it, payable to the order of A., to an indorsee thereof, and it subsequently transpires that the indorsement thereon was forged, the statute does not run against its claim for indemnity against the indorsee until it has been notified by the drawer of his intention to insist on the defect of title and cancel the credit given it on the draft. Thus,^^ where the United States Treasurer in 1867, made a draft on the First National Bank of B. payable to the order of O., the indorsement of O. was forged, and the check was sent by a third party to the M. bank for collection. The M. bank indorsed it and sent it to the drawee, by which it was paid and sent to the United States Treasury, where it was credited to the drawee. In 1877 the United States sued the drawee for the amount of the draft upon the ground that the indorsement was forged; of which suit the M. bank was notified, and employed counsel in defending the suit. Judgment was rendered against the drawee. In an action by the drawee commenced against the M. bank, after it had paid the judgment to the United States, the M. bank set up the statute of limitations. The court held that the action was not barred, as the statute did not begin to run at the time of the payment of the draft, nor until the United States elected Supervisors, 119 N. Y. 213, 23 N. E. liability of the county for the portion 652, 50 Hun 54, 3 N. Y. Supp. 110. of the fund applied in payment of 28. Ibid; Bridges v. Sullivan State taxes. County Supervisors, 92 N. Y. 570, dis- 29. Merchants' Nat. Bank v. First tinguished, so far as it relates to the Nat. Bank, 3 Fed. 66, 4 Hughes 9. 766 Statutes or Limitation. to insist on the defect of title and cancel the credit given to the drawee on the draft. ^^ § 144. Money had and received. Where an action is brought for money had and received by the defendant to his use, the statute only begins to run from the time when it was received by him. Thus,^^ when a municipal corpora- tion, acting through its oiScers in the execution of a power confer- red upon it to collect a tax assessed upon a particular citizen, en- forces its collection out of the property of another, in nowise liable therefor, and appropriates the proceeds of collection to its own use, with full knowledge of the illegality of the proceedings, it becomes liable to the owner for the spoliation of his property. In an action to recover of the defendant the money received into its treasury through proceedings taken to collect a tax assessed upon the stockholders of a bank, doing business within its corporate limits, it appeared that the property levied upon and sold by the defend- ant was not the property of the stockholders, but of the bank. By the defendant's charter, its mayor is its executive head and clothed with the duty and power of supervision of it and its offi- cers in all departments. Its treasurer and tax receiver are in- trusted with the duty and power of collecting taxes and keeping 30. The court relied upon Cowper the first is the original advance of V. Godmond, 9 Bing. 748. In that the money by the grantee; the second case the question was, whether a plea is the grantor's election ta avail him of the statute of limitations was a self of the defect in the memorial of bar to an action for money had and the annuity. The cause of action received to recover the consideration was not complete until the last step money of a void annuity, when the was taken." See Eipley v. Withee, annuity was granted more than six 37 Tex. 14, where it was held that an years before the action was brought, action for damages arising from the but was treated by the grantor as sale of a forged land-warrant did not an existing annuity within that time, accrue until the certificate had been "That question," said the court, "de- prescribed to the court of claims and pends upon another: At what time rejected by it. did the cause pf action arise? The 31. Teall v. City of Syracuse, 120 cause of action comprises two steps: N. Y. 184, 24 N. E. 450. Miscellaneous Causes of Actioit. 767 the moneys for the defendant. The collector was directed, when he received the warrant from the treasurer and tax receiver, to go to the bank and levy upon everything in the bank, to make the levy and sale of its property, and the mayor was so informed, and the treasurer received the tax from the collector, knowing that it was obtained by such levy and sale. It was held that the plaintiff was entitled to recover; that the proceedings of the de- fendant's officers in collecting the tax were unlawful; and that knowledge thereof was justly imputable to the defendant; and that the defendant's knowledge of the illegal levy and sale relieved the plaintiff from demanding the money before bringing this action, and that the action, being for money had and received, the statute of limitation did not begin to run until the defendant had received the money. § 144a. Implied warranty. Where property is sold under such circumstances that the law will imply a warranty, the statute begins to run from the date of the warranty. Thus, where the payee of a negotiable note indorses the same the law raises an implied warranty that the note was given for a valuable consideration, and upon this warranty an action for its breach accrues and the statute begins to run at once.^^ In the case of contract for the mutual exchange of lands which contains nothing from which it can be inferred that one conveyance was to precede the other, the law implies that the conveyances are to be made concurrently, and that the mutual covenants of the parties are dependent, and that the statute does not begin to run thereon against the vendor until he has performed by giving a deed, nor against the purchaser until he has made a tender of the price.^^ Where a party transfers a note, knowing it to be affected by usury, to one who is ignorant of the fact, he instantly becomes liable to the purchaser for the deceit ; but the statute only begins 32. Blethen v. Lovering, 58 Me. 33. Brennan v. Ford, 46 Cal. 7. 437. 768 Statutes of Limitation, to run from tlie time tlie fraud was discovered.'* Upon an implied warranty of title to chattels sold, it has been held that the statute does not begin to run until the vendee has been disturbed in his title.^^ § 145. Sureties, indorsers, etc. Where a surety is compelled to pay a debt, the statute begins to run against his claim from the day of such payment, and not from the date of the original obligation,^^ and this is also the rule as to 34. Persons v. Jones, 13 Ga. 371, 58 Am. Dec. 476. 35. Gross v. Kierski, 41 Cal. 111. A warranty of goods sold, if not fulfilled, is usually to be treated as broken when the goods are delivered, and in the absence of fraud, an action for such breach must be brought with- in the statute time for suing on con- tracts. Bogardus v. Wellington, 27 Ontario App. 530. 36. Hammond v. Myers, 30 Tex. 375, 94 Am. Deo. 322; Burton v. Ruth- erford, 49 Mo. 255; Reeves v. Pul- liam, 66 Tenn. (7 Bax.) 119; Thayer V. Daniels, 110 Mass. 345; Barnsback V. Reiner, 8 Minn. 59; Walker v. La- throp, 6 Iowa, 516 ; Thompson v. Stev- ens, 3 N. & M. (S. C.) 493; Scott v. Nichols, 27 Miss. 94, 61 Am. Dec. 503. Tn Wesley Church v. Moore, 10 Pa. 273, it was held that where the property of a surety was sold on an execution to pay the debt, the statute began to run from the date of the sale. Ponder v. Carter, 34 N. 0. (12 Ired. L.) 242; Hale v. Andrus, 6 Cow. (N. Y.) 325; Garrett's Adm'rs V. Garrett, 27 Ala. 687; Preslar v. Btallsworth, 37 id. 403; Walker v. Lathrop, 6 Iowa (6 Clarke) 516; Bennett v. Cook, 45 N. Y. 368; Scott v. Nichols, 27 Miss. 94, 61 Am. Deo. 503. The law implies a promise on the part of the principal to reim- burse the surety and the action is upon this implied promise. Ward v. Henry, 5 Conn. 596, 13 Am. Dec. 119; Powell V. Smith, 8 Johns. (N. Y.) 249; Hassinger v. Solms, 5 Serg. & R. (Pa.) 8; Gibbs v. Bryant, 18 Mass. (1 Pick.) 118; Bunce v. Bunce, Kirby (Conn.) 137; Hulett v. Soullard, 26 Vt. 395; Smith v. Sayward, 5 Me. 504; Lonsdale v. Cox, 33 Ky. (7 T. B. Mon.) 405; Appleton v. Beacom, 44 Mass. (3 Met.) 169; Holmes v. Weed, 19 Barb. (N. Y.) 128. It is not necessary that he should pay in money; it is sufficient if he pays in land or personal property. Bonney V. Seely, 2 Wend. (N. Y.) 481; Ran- dall v. Rich, 11 Mass. 494; Ainslee v. Wilson, 7 Cow. (N. Y.) 663, 17 Am. Dec. 533. But the implied promise is only to indemnify the surety; con- sequently it secures a discharge of the debt for less than its amount. He can recover no more than he paid; and, if he paid the debt in depreciated currency at p&r, he can only recover the amount which it was worth at the time of payment. Owings v. Ow- ings, 26 Ky. (3 J. J. Mar.) (Ky.) Miscellaneous Causes of Actiok". 769 contribution against a co-surety.''' No action, however, can be 590; Hall's Adm'r v. Creswell, 12 G. & J. (Md.) 36; Jordan v. Adams, 7 Ark. 348; Crozer's Trustees v. Gray, 27 Ky. (4 J. J. Mar.) 514. So he may sue at once if he has taken up the original note, and given his own in lieu of it which has been ac- cepted in payment. Downer v. Bax- ter, 30 Vt. 467; Elwood v. Deifendorf, 5 Barb. (N. Y.) 398. But in In- diana it is held that he can maintain no action until he has actually paid a note given in lieu of the original note, Pitzer v. Harmon, 8 Blaekf. (Ind.) 112, 44 Am. Dec. 738; Eomine V. Romine, 59 Ind. 346; even though it was secured by mortgage, Bennett V. Buchanan, 3 Ind. 47. A demand is not necessary. The statute at- taches at once upon payment. Odlin V. Greenleaf, 3 N. H. 370; Sikes v. Quick, 52 N. C. (7 Jones L.) 19. In Stone v. Hammell, 83 Cal. 547, 23 Pac. 703, 8 L. E. A. 425, 17 Am. St. Rep. 373, McFarland, J., in a well- considered opinion, says : " The gen- eral rule is, undoubtedly, that a su- rety can recover of the principal only the amount or value which the su- rety has actually paid. If he has paid in depreciated bank notes taken at par, he can recover only the actual value of the bank notes so paid and received. If he has paid in property, he can recover only the value of the property. If he has compromised, he can recover only what the compro- mise cost him. The rule is that he shall not be allowed to "speculate out of the principal." Brandt, Sur., § 183, and cases there cited; Estate of Hill, 67 Cal. 243. 49 Perhaps a preponderance of author- ity, to the point, is that if a surety, by giving his negotiable promissory note, satisfies the claim of the credi- tor, and extinguishes the debt of the principal to the creditor, he may re- cover from the principal the amount of the debt without showing that he has paid his promissory note. But the authorities are not uni- form upon the subject. In Indiana, North Carolina, and some other States, it is held that the surety can- not recover of the principal until he has paid the money, and that the giving of a note is not sufficient. Brisendine v. Martin, 33 N. C. (1 Ired. L.) 286; Nowland v. Martin, id. 307 ; Romaine v. Eomaine, 59 Ind. 346. Many of the cases hold that, if the surety discharges the debt by a ne- gotiable note, he may maintain an action against the principal, while, if he does so by means of a bond, or any non-negotiable instrument, he can- not, upon the theory that a negotiable note is analogous to money — a dis- tinction which is founded upon no ap- parent good reason. Boulware v. Rob- inson, 8 Tex. 337, 58 Am. Deo. 117; Peters v. Barnhill, 1 Hill (S. C.) 234. 37. Singleton v. Townsend, 45 Mo. . 379; Wood v. Leland, 1 Met. (Miss.) 387; Peters v. Barnhill, 1 Hill (S. C.) 234; Maxey v. Carter, 18 Tenn. (10 Yerg.) 521; Lowndes v. Pinck- ney, 1 Rich. (S. C.) Eq. 155; Sher- wood V. Dunbar, 6 Cal. 53; Knotts v. Butler, 10 Rich. (S. C.) Eq. 143. An action for contribution arises at once upon the payment of the whole 110 Statutes op Limitation. maintained until tlie surety has actually paid the debt. The fact that a judgment has been rendered against him, and that he has been committed to jail upon an execution thereon, does not entitle him to an action against the principal for money paid, etc.^^ Where money is paid by one person for another, and no time is fixed for payment, the statute attaches from the date of its pay- ment.^^ The statute begins to run against the right of sureties to debt by one surety against his co- sureties for the proportion of the debt each should pay. Whitman v. Gaddy, 46 Ky. (7 B. Mon.) 591; Paulin v. Kaighn, 29 N. J. Law 480; Labeaume V. Sweeney, 17 Mo. 153; Samuel v. Zachary, 36 N. C. (4 Ired. L.) 377; Stallworth v. Preslar, 34 Ala. 505, and 37 id. 403; Chaffee v. Jones, 36 Mass. (19 Pick.) 260; Lee v. For- man, 60 Ky. (3 Met.) 114; Pinkston V. Taliaferro, 9 Ala. 547; M'Donald V. Magruder, 38 U. S. (3 Pet.) 470, 7 L. Ed. 744; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98; Foster v. Johnson, 5 Vt. 64; Stout v. Vause, 1 Eob. (Va.) 169; Cage v. Foster, 13 Tenn. (5 Yerg.) 261, 36 Am. Dee. 365. And he is not first bound to pursue the principal. Caldwell v. ' Roberts, 31 Ky. (1 Dana) 355. The rule is founded on the reason that if the surety, by giving his own obligation, discharges the original debt of the principal, the latter is aa much benefited as if he had discharg- ed it by actually paying the money. Its weakness lies in the possibility of the surety recovering the whole amount of the principal, and never paying his own note, thus violating the cardinal rule that the surety shall not speculate out of the principal. But, if we assume the rule to be as first above stated, it is not so clearly commendable as to deserve pushing further than adjudicated cases have already carried it; and in all cases to which our attention has been called the rule has been enforced against the principal in favor only of the surety who has extinguished the debt to th§ original creditor. Chipman V. Morrill, 20 Cal. 136. The liability of the surety must first be settled; and the claim for contribution is not affected by the fact that the statute has already run as between the principal creditor and the co-surety. Wolmershausen v. Gullick (1893), 3 Ch. 514. See Rob- inson V. Harkin (1896), 2 Ch. 415; Martin v. Frantz, 127 Pa. 389, 18 Atl. 20, 14 Am. St. Rep. 359 ; Fullerton v. Bailey, 17 Utah 85, 53 Pac. 1020. In Texas a right of subrogation as to securities held by another arises upon an implied contract and ia within the two years' statute of limitation, which statute will never be superseded in equity in favor of one seeking sub- rogation to such a lien. Darrow v. Summerhill, 93 Texas 93, 105, 53 S. W. 680, 77 Am. St. Rep. 833. See Tate V. Winfree, 99 Va. 255, 37 S. E. 956. 38. Rodman v. Hedden, 10 Wend. (N. Y.) 498. 39. Bowman v. Wright, 70 Ky. (T Bush) 375. Miscellaneous Causes of Action, V71 be subrogated to the payee's right to securities, etc., from the time of payment of the debt by them.*" So strict is this rule and so rigidly is it adhered to tbat, even when a surety procures an extension of time from the holder, and gives collateral secur- ity, and ultimately pays the debt, it is held that tbe statute does not begin to run against him until he has actually paid the debt.*^ The rule may be said to be that so long as any liability on the maker's part upon the original debt remains the surety has no right of action against him, and consequently the statute does not begin to run against him; but, although the surety may not have paid the debt in money, yet if he has in any manner assumed the debt, so that the maker's liability upon it is at end, from that time the statute begins to run against the surety.*^ If the note or obligation is payable by installments, the statute begins to run against the surety from the time when each installment was paid by him.*^ But if the note is not so payable, and the surety in fact pays the note by installments, the statute does not begin to run from the date of each payment, but from the date of the last payment made by him, in liquidation of the note.** When two persons execute to each other written instruments in the form of deeds, which are defective as conveyances for the want of attes- tation or acknowledgment, each instrument being the considera- tion of the other, and possession is given and taken by each, the statute at once commences to run, and, after the lapse of the statutory period, perfect a title which will maintain or defeat an action of ejectment.*^ Where a mortgage is given by the maker of a note to a person 40. Bennett v. Clark, 45 N. Y. 268. 41. Norton v. Hall, 41 Vt. 471. The right of subrogation, when 42. Hitt v. Sharer, 34 111. 9. merely incidental to the relief sought 43. Bullock v. Campbell, 9 G. & in an action, does not affect the rela- J. (Md.) 183. tion of the note or other cause of ac- 44. Barnsback v. Reiner, 8 Minn, tion to the statute of limitations. 59. Campbell v. Campbell, 133 Cal. 33, 65 45. Hall v. Caperton, 87 Ala. 385, Pae. 134. 6 So. 388. 772 Statutes of Limitatioit. who becomes surety thereon, conditioned that if the maker pays the note and saves the surety harmless from all demands upon it the conveyance should be void, the statute does not begin to run against the mortgagee until he has actually paid the note or some part of it, and the note is discharged.*^ The same rule prevails as to indorsers. The statute begins to run against them from the time when they actually paid the debt, and not from the time when they become liable to pay it.'*'' But, unless the surety or indorser pays the note within the time limited by statute, he cannot, by a payment made by him afterwards, make the maker liable to him therefor, especially in those States where by statute payment or acknowledgment by one co-maker, etc., does not take the debt out of the statute as to the others.** Where one sued as indorser sets up in defense that the transfer was made to the plaintiff to deprive him of the defense of want of consideration, the indorser's cause of action against the last indorser arises 46. M'Lean v. Eagsdale, 31 Miss. 701. In Schoener v. Lissauer, 107 N. Y. Ill, 13 N. E. 741, it was held that the provision of the Code, applying a six years' limitation to actions "to pro- cure a judgment other than for a sum of money on the ground of fraud, in a case," formerly "cognizable by the Court of Chancery," does not apply to an action by the owner of the fee to remove a cloud upon title to land, by the cancellation of a mortgage thereon, to which the owner has a good defense. The right to bring such an action is never barred by the statute of limi- tations. Ibid.; Solinger v. Earl, 83 N. Y. 393, 60 How. Prac. 116, and Haynes v. Eudd, 103 N. Y. 373, 7 N. E. 287, 55 Am. Eep. 815. 47. Pope V. Bowman, 37 Miss. 194. A surety has no actionable claim against his co-sureties for contribu- tion until he is damnified by the fact, and it is actually ascertained that he has paid more than his due proportion of liability. Ew parte Snowdon, 17 Ch. D. 44; Gardner v. Brooke (1897), 3 I. E. 6. When bonds are pledged as collateral by a mortgagor, who in the same instrument agrees to pay any difference between the net pro- ceeds of the bonds and the amount due, this is not a new and independ- ent obligation postponing the statute until realization on the securities, but the statute runs from the date fixed for repayment of the loan. In re McHenry (1894), 3 Ch. 390. 48. In Williams v. Durst, 25 Tex. 667, 78 Am. Dec. 548, it was held that where an accommodation in- dorser pays a note before the statute runs upon it, but does not bring suit until after the statute has run on Miscellaneous Causes of Action. T73 from the date of judgment.*' If a surety or indorser pays a note before it becomes due, his right of action does not accrue imtil the note by its terms becomes due ; ^^ as a surety cannot change the legal relations of the maker to the note by any action of his before it becomes payable, nor by forestalling its payment can he acquire any rights against the maker which the holder of the note did not possess. The rule that a right of action accrues to the surety from the time he pays the money, and not from the time when the origi- nal debt becomes payable, is subject to the exception, that he must have paid the original debt before the statute had run thereon ; as otherwise, especially in those States where by statute pay- ment by one joint contractor or promisor does not remove the statutory bar as to the other, a recovery could not be had by him if the original debt was then barred as to the principal debtor. ^^ When the principal debtor, by reason of the running of the statute, has been released from any legal liability to pay the debt, a surety who has been compelled to pay it, because, by reason of some statutory exception, the statute has not run as to him, cannot recover of the principal debtor.^^ Instances may arise where the surety has no redress; as, where he becomes surety upon a note for an infant, not given for necessaries. In such a case, if the infant escapes upon a plea of infancy, and judgment is rendered against the surety, he has no right of re- the note, he cannot recover of the Kimble v. Cummins, 60 Ky. (3 Met.) maker ; because he acquires no greater 327. This rule was adopted in Cocke rights than the holder of the note pos- v. Hoffman, 73 Tenn. (5 Lea) 105, sessed. 40 Am. Eep. 23, and a surety who 49. Price v. Emerson, 16 La. An. paid the debt after it was barred as 95. to the sureties was held not entitled 50. Tillotson v. Eose, 52 Mass. (11 to recover of a co-surety. See also Mete.) 299. Campbell v. Brown, 86 N. C. 376, 41 51. The law will not raise a prom- Am. Eep. 464. ise on the part of the principal to re- 52. Stone v. Hemmell, 83 Cal. 547, imburse the surety where the surety 23 Pac. 703, 8 L. E. A. 425, 17 Am. was under no legal obligation to pay. St. Eep. 272. 774 Statutes of Limitatioit. dress from the infant, but stands to the note and judgment in the relation of principal.^^ But where a note is given by an infant for necessaries, with a surety, and the surety pays the debt, he has an immediate right of action against the infant thereon, and the statute runs from that time.^* Where there are two or more sureties, and each pays a moiety of the debt, each has a sep- arate and distinct cause of action against him therefor; conse- quently, in such a ease, the statute begins to run against the claim of each from the time when each paid his share. ^^ The remedy of a surety is the same whether he was surety upon a simple con- tract or a specialty debt.^^ ^tis remedy is by indebitatus assumpsit for money, and not for money had and received.^' At the common law, a payment made by the principal debtor upon a note before the bar of the statute has become complete, keeps the debt alive both as to himself and the surety; but where the payment is made after the completion of the bar of the stat- ute, it revives the debt only as to the party making the payment.^' So long as demands secured by a mortgage are not barred by 53. Short V. Bryant, 40 Ky. (10 of Oregon, the period of limitation for B. Mon.) 10. promissory notes is six years; and it 54. Conn. v. Coburn, 7 N. H. 368, is argued that, as the notes in this con- 26 Am. Dec. 746. troversy were not sued on until more 55. Peabody v. Chapman, 20 N. H. than six years from the date when 418. they respectively became due, an ac- 56. Cunningham v. Smith, 1 Harp, tion on them would not lie, notwith- (S. C.) Eq. 90; United States v. standing the fact that the maker made Preston, 4 Wash. (U. S. C. C.) 446. payments of interest upon them from But contra, see Shultz v. Carter, time to time. Speers (S. C.) Eq. 533, where it was "At common law, a payment made held that the surety could, upon pay- upon a note by the principal debtor ment of a specialty debt, set it up as before the completion of the bar of a specialty. the statute served to keep the debt 57. Ward v. Henry, 5 Conn. 595, alive, both as to himself and the 13 Am. Bee. 119; Powell v. Smith, 8 surety. Whitcomb v. Whiting, 3 Johns. (N. Y.) 349. Dougl. 652; Burleigh v. Stott, 8 Blrn. 58. Cross V. Allen, 141 U. S. 528, 12 & C. 36; Wyatt v. Hodson, 8 Bing. Sup. Ct. 67, 35 L. Ed. 843, where the 309 ; Mainzinger v. Mohr, 41 Mich, court said: "Under the Civil Code 685, 3 N. W. 183. Miscellaneous Causes of Actioit. 775 the statute, there can be no laches in prosecuting a suit upon the mortgage to enforce them. Lamar, J., says : ^^ " The question of laches and staleness of claim virtually falls with that of the defense of the statute of limitations. So long as the demands secured were not barred by the statute of limitations there could be no laches in prosecuting a suit upon the mortgage to enforce " That is the rule in many of the States of this Union — dn all, in fact, where it has not been changed by statute. National Bank of Delavan V. Cotton, 53 Wis. 31, 9 N. W. 936; Quimby v. Putnam, 28 Me. 419. At common law, and in those States where the common-law rule prevails, a distinction is made between those cases in which a part payment is made by one of several promisors of a note before the statute of limitations has attached, and those in which the pay- ment is made after the completion of the bar of the statute; it being held in the former that the debt or demand is kept alive as to all, and in the lat- ter, that it is revived only as to the party making the payment. Atkins V. Tredgold, 3 Barn. & C. 23; Sigour- ney v. Drury, 31 Mass. (14 Pick.) 391; Ellicott v. Nichols, 7 Gill. (Md.) 85, 48 Am. Dec. 546, and cases cited. The reason of this distinction lies in the principle that, by withdrawing from a joint debtor the protection of the statute, he is subjected to a new liability not created by the original contract of indebtedness. There is no statute of Oregon, so far as we have been able to discover, changing the common-law rule of liability with reference to sureties. Consequently, under the admitted facts of this case, it must be held that the statute of limitations of the State never oper- ated as a bar to the enforcement of the original demands against both the principal and the surety. " Nor do we think the death of the surety before either of the demands matured makes any difference, in prin- ciple, where, as in this case, the lia- bility is not of a personal nature, but is an incumbrance upon the surety's property. We are aware that there is authority holding that payment of interest by the principal debtor, af- ter the death of the surety, but be- fore the statute of limitations has run against the note, will not prevent the surety's executors from pleading the statute. Lane v. Doty, 4 Barb. (N. Y.) 530; Smith v. Townsend, 9 Rich. (S. C.) L. 44; Byles, Bills, § 353; 3 Parsons, Notes & Bills, 659, and note t. But we know of no authority extending this rule to the represen- tatives of a deceased surety whose liability was not personal but upon mortgaged property. On the contrary the cases of Miner v. Graham, and Bank of Albion v. Burns, supra, seem to recognize the doctrine which we are inclined to accept. We conclude, therefore, that the contract of surety- ship in this case was not terminated by the death of the surety before the maturity of the indebtedness." 59. Cross V. Allen, 141 U. S. 528, 537, 13 Sup. Ct. 67, 35 'L. Ed. 843. 776 Statutes of Limitation. those demands. The mortgage is virtually a security for the debt, and an incident of it.^* And it is immaterial that the failure to sue upon the demands may have resulted injuriously to the surety, so long as there was no variation in the original contract of suretyship, either as respects a new consideration or a definite extension of time; since it is a familiar principle of law that the mere omission of forebearance to sue the principal without the request of the surety will not discharge the surety. "^^ § 146. Contract of indemnity, guaranties, etc. Contracts of indemnity are so largely dependent upon the parti- cular stipulation that the guarantor has made that no general rule can be given as to when his liability attaches against those for whom he has assumed that position that will be applicable in all cases, except that the statute begins to run when the promisee has taken all the requisite steps to charge him with liability, and his liability under his contract to pay the debt is full and complete,"' and the promisee cannot prolong this period of liability by any imreasonable delay in taking these requisite steps.*^ A guaranty has aptly been termed a contract to indemnify another upon a contingency, and is in the nature of a claim for unliquidated damages."* They are either absolute or contingent,"^ and the dis- tinction between them in this respect is of vital importance in 60. Ewell V. Daggs, 108 U. S. 143, 63. In Eddowes v. Neil, 4 U. S. (4 2 Sup. Ct. 408, 27 L. Ed. 683. Call.) 133, 1 L. Ed. 772, a delay of 61. In England section 8 of the 37 nineteen years fully accounted for waa and 38 Vict., c. 57, relates not only held not of itself sufficient to dis- to suits to enforce mortgage securi- charge the guarantor. ties against the land, but also to suits 64. Sampson v. Burton, 2 B. & B. to enforce covenants personally 89. against those bound thereby, such, 65. Eudy v. Wolf, 16 Serg. & R. e. g., as a surety who joins in a joint (Pa.) 79; Woods v. Sherman, 71 Pa. and several covenant for payment of 100; Moakley v. Eiggs, 19 Johns. (N. the mortgage debt. Sutton v. Sutton, Y.) 69, 10 Am. Dec. 196; Sylvester v. 23 Ch. D. 511; Allison v. Frisby, 43 Downer, 18 Vt. 33; Allison v. Wald- id. 106. ham, 34 111. 132. 62. See Colvin v. Buckle, 8 M. & W. 680. Miscellaneous Causes of Actioit. TT? determining the time when the statute begins to run in favor of the guarantor. Thus, an absolute guaranty is one by the terms of which the guarantor undertakes that another person shall per- form by the time fixed in the contract, and upon which he be- comes liable to pay the debt or damages at maturity upon the other's failure ; as, " I guarantee the payment of this note at maturity." ^ Such a guai'anty is absolute, and a right of action accrues against the guarantor immediately upon the maturity of the note, without taking any steps against the maker of the note.^^ So where on the sale of goods it was agreed that they should be paid for on delivery, and the defendant signed a guaranty as follows : " On the part of A. and B. I hold myself responsible with them on the above contract," it was held that his under- taking boimd him to a direct performance of the contract, and was in effect that he or his principals would pay for the goods on delivery.** Where the guaranty is absolute, the guarantor is not entitled to demand or notice; but his liability to suit arises and is fixed at the same moment that an action accrues against the principal debtor, or, if a later period is in terms fixed upon, upon the arrival of the time named therein,*' and the guarantor may be 66. Koch V. Melhorn, 25 Pa. 89, 64 45; Cross v. Ballard, 46 Vt. 415; Am. Dec. 685; Cochran v. Dawson, 1 Campbell v. Baker, 46 Pa. 243; Miles (Penn.) 276. Kramph v. Hatz, 52 Pa. 525. A wrlt- 67. Roberts v. Riddle, 79 Pa. 468 ; ing in the words " I will guarantee Reigart v. White, 53 Pa. 438; Ander- the payment to you of $625 in trea- son V. Waahabaugh, 43 Pa. 115. See sury warrants to be paid on or before Williams v. Granger, 4 Day (Conn.) the 20th August on and for account of 444. J. W." was held an original and ab- Wliere a person contracts to indem- solute promise. Matthews v. Chris- nify a person and save him harmless man, 30 Miss. 595, 51 Am. Dec. 124. from certain claims, the statute does 69. Smith v. Ide, 3 Vt. 301; Dick- not begin to run until the person to erson v. Derrickson, 39 111. 574; Bow- whom the indemnity is given has paid man v. Curd, 55 Ky. (2 Bush) 565; the debt. Hall v. Thayer, 53 Mass. Young v. Brown, 3 Sneed (Tenn.) '(12 Met.) 130. And such also is the 89; Lane v. Levillian, 4 Ark. 76; Ege rule where money is paid for another v. Barnitz, 8 Pa. 304; Breed v. Hill- at his request. Perkins v. Little- house, 7 Conn. 523; Douglass v. How- field, 87 Mass. (5 Allen) 370. land, 24 Wend. (N. Y.) 35; Noyes v. 68. King V. Studebaker, 15 Ind. Nichols, 28 Vt. 160; Sibley v. Stuhl, 778 Statutes op Limitation, sued thereon without any previous suit against the principal deb- tor.'''' Contingent guaranties are those in which the guarantor does not assume an absolute liability, but binds himself to per- form in case the debtor fails to do so. Thus, where a person guarantees that a note " is collectible," he does not bind himself absolutely to pay the note but only to do so in the event that the maker proves insolvent.'^ In other words, a contingent guaranty is one which only becomes absolute when the creditor, by due and unsuccessful diligence to obtain satisfaction from the princi- pal, fails to do so, or by circumstances that excuse diligence.''^ A guaranty " against loss " on a note, bond, or mortgage, is a con- tingent one, putting the creditor on his diligence ; '^ so also a guar- anty that a note " is good," ''* or to pay in case the holder " fails to recover the money on said note," '^ are all contingent guaran- ties ; and, indeed, so are all that impose upon the person to whom they are given the duty of first exhausting his remedies against the principal.''^ The distinction, then, to be observed is, that in the case of a contingent guaranty a right of action does not accrue against the guarantor immediately upon the failure of the prin- cipal to perform, but it imposes upon the creditor the duty of ex- 15 N. J. Law 332; Bank of South 71. M'Doal v. Yomans, 8 Watts Carolina v. Hammond, 1 Rich. (S. (Pa.) 361. C) 281; Bebee v. Dudley, 26 N. H. 72. Gilbert v. Henck, 30 Pa. 205; 249, 59 Am. Dec. 341; McDougal v. Woods v. Sherman, 71 Pa. 100; Hoflf- Calef, 34 N. H. 534; Simons v. Steele, man v. Bechtel, 52 Pa. 190. 36 N. H. 73; Cox v. Brown, 51 N. C. 73. Griffith v. Robertson, 15 Hun (6 Jones L.) 100. (N. Y.) 344; McMurray v. Koyes, 72 70. Bank of New York v. Livings- N. Y. 523, 28 Am. Rep. 180. ton, 2 Johns. (N. Y.) Caa. 409; Mor- 74. Coolce v. Nathan, 16 Barb. (N. ris V. Wadsworth, 17 Wend. (N. Y.) Y.) 342. 103; Huntress v. Patton, 20 Me. 28; 75. Jones v. Ashford, 79 N. C. 172. Koch V. Melhorn, 25 Pa. 89, 64 Am. 76. Cumpston v. McNair, 1 Wend. Dec. 685; Roberts v. Riddle, 79 Pa. (N. Y.) 457; Pollock v. Hoag, 4 E. 468; Cochran v. Dawson, 1 Miles D. Sm. (N. Y. C. P.) 473; Vander- (Pa.) 276; Smeidel v. Lewellyn, 3 kemp v. Shelton, 11 Paige (N. Y.) 28; Phila. (Pa.) 70; Douglass v. Rey- Newell v. Fowler, 23 Barb. (N. Y.) nolda, 32 U. S. (7 Pet.) 113, 8 L. 628. Ed. 626; Brown v. Curtis, 2 N. Y. 225. Miscellaneous Causes of Actiow. 779 hausting his remedy against the principal before he resorts to the guarantor, or showing satisfactorily that the affairs of the principal were in such a condition that any pursuit of him would have proved fruitless." Consequently, in the case of a contin- gency guaranty, as the statute begins to run when the right of action against the guarantor becomes complete, it follows that it only attaches in his favor when the necessary steps to fix his lia- bility have been taken and are fully completed. § 147. Money paid for another. Where money is paid for another under such circumstances that the law will imply a promise to repay it, and no time is fixed for its repayment, the right of action accrues at once ; but if payment is made in liquidation of a note or contract not matured, the right of action does not accrue until the debt has matured, and if any- thing remain to be done to effectuate the payment, a right of action does not accrue until that is done. Thus, where an administra- trix brought an action to recover money paid in liquidation, one of two notes secured by mortgage, it was held that the statute began to run from the date of the discharge of the mortgage, and not from the time when the payment was made.'^ § 148. Action under enabling acts. Where a statute gives a party the right to sue on an existing claim where such right did ^ot exist before, and is silent as to the time when the statute shall begin to run thereon, it attaches and begins to run from the day the act took effect, unless suit might have been brought in the name of another — as the assignor of a- lease — in which case it begins to run from the time the claim first accrued./' 77. Dyer v. Gibson, 16 Wis. 557; Cody v. Sheldon, 38 Barb. (N. Y.) Parker v. Culvertson, Wall. Jr. (U. 103; Stark v. Fuller, 43 Pa. 330; S.) 149; Benton v. Fletcher, 31 Vt. Thomas v. Woods, i Cow. (N. Y.) 418; Wheeler v. Lewis, 11 Vt. 365; 173. Dana-v. Conant, 30 Vt. 346; Sand- 78. Luce v. McLoon, 58 Me. 331. ford V. Allen, 55 Mass. (1 Cush.) 79. Cross v. United States, 4 Ct. of 473; McClurg v. Fryer, 15 Pa. 393; CI. (U. S.) 271. 780 Statutes of Limitation. § 149. Actions against stockholders of corporations. Where, by statute, the stockholders of a corporation are made liable for the debts of the corporation, their liability commences when the liability of the corporation commences, and ends at the same time that liability on the part of the corporation ends.^ 80. See Seattle Nat. Bank v. Pratt, 103 Fed. 62, aflf'd 111 Fed. 841, 49 C. C. A. 662; Santa Kosa Nat. Bank V. Barnett, 125 Cal. 407, 58 Pac. 85; Kyland v. Commercial & Sav. Bank, 127 Cal. 535, 59 Pac. 989; First Nat. Bank v. King, 60 Kansas, 733, 57 Pac. 952; Chase v. Horton Bank, 9 Kan. App. 186, 40 Central L. J. 310, 59 Pac. 39; Thompson v. Keno Sav- ings Bank, 19 Nev. 103, 7 Pac. 68, 3 Am. St. Kep. 797, 827, 873, n. The liability of a shareholder in a na- tional bank is often held to be con- tractual; in which case the statute of limitations does not commence to run against the enforcement of his entire liability or of any particular portion of it until the comptroller of the cur- rency has called the entire liability or the particular part of it in issue. Glenn v. Liggett, 135 U. S. 533, 10 Sup. Ct. 867, 34 L. Ed. 262; Aid- rich V. Campbell, 97 Fed. 663, 669, 38 C. C. A. 347; Deweese v. Smith, 106 Fed. 438, 441, 45 C. C. A. 408, 66 L. R. A. 971, aff'd 187 U. S. 637, 23 Sup. Ct. 845, 47 L. Ed. 344. As the national bank act fixes no limit of time for collecting such an asses- ment, the limitation is that of the statutes of the State where the action is Iirought. Aldrich v. Skinner, 98 Fed. 375. Where, as in Massachusetts, it is held that a foreign statute, like that of Kansas, making stockholders in one of its own corporations liable by assessment to judgment creditors of the corporation, such liability is transitory, and may be enforced in any State where personal service can be made upon the stockholder; if the statute of limitations of the judg- ment State, like that of Kansas, pro- vides that if a person is out of the State when a cause of action against him accrues, the period limited for the commencement of the action does not begin to run until he comes into the State, which provision is in Kan- sas held to apply to non-residents, and there is no statutory require- ment that the above right of action must be parte Striker, 71 N. Y. 603. Such assessments are treated as in the na- ture of judgments. City of New York V. Colgate, 13 N. Y. 140. But in New York this species of assessments is confirmed by the courts, and for that reason properly partake of the nature of judgments; but when they are not required to be so affirmed, they cannot in any sense be said to have any of the attributes of a judg- ment. 12. Pryor v. Wood, 31 Pa. 142. 806 Statutes of Limitation. presumption attaches to every species of specialty claim.^* But it must be borne in mind that, unless, the instrument or obliga- tion creates a present right of action, the presumption, like the statute, only attaches from the time when the right of action accrued. But being a common-law presumption, even though it is also made so by statute, it may be set up by a defendant, whether he is a resident of the State in which the action is brought or not ; " the distinction being, that where the statutory presumption is relied upon it should be pleaded, while the com- mon-law presumption is a mere matter of evidence, and may be urged at the trial without having been pleaded. There is still another distinction between a presumption raised by the law and one that is prescribed by the statute; and that is, that the latter is absolute, unless made otherwise in terms, while the former is dependent upon a variety of circumstances which (as we have seen) may entirely destroy its force. In E"ew York-'^ the pre- sumption may be repelled by proof of payment of some part, or by a written acknowledgment. In ISTorth Carolina,^'' the presump- tion is reduced to ten years, except as to mortgages, which is thirteen years, subject to the same rules as exist at common law. In Arkansas " similar provisions exist, except that payment of part, or a written acknowledgment, is necessary to remove the presumption ; so also in Missouri,^^ except that the period is twenty years. In England, by Stat. 3 & 4 Wm. IV., c. 42, specialties are brought within the statute, and are barred in ten years. • § 173. Covenants — Quiet enjoyment, etc. There is often a question as-to covenants of a more or less con- tinuous nature. Such as covenants for title and quiet enjoyment, as to how far in those States where the statute embraces specialties they are within the statute. In an English case,^^ arising under the 13. Higgg V. Stimmel, 3 P. & W. 16. See Appendix. (Pa.) 115. 17. See Appendix. 14. Sanderson v. Olmsted, 1 Chand. 18. See .Appendix. (Wis.) 190; 1 Pin. (Wis.) 234. 19. Spear v. Green, L. R. 9 Ex. 99. 15. See Appendix. Specialties. 807 statute 3 & 4 Wm. IV., Kelly, 0. B.,^'' said : " There Is a distinc- tion between the covenant for title and the covenant for quiet enjoyment. The covenant for title is broken by the existence of an adverse title in another, as in this case, by a lease, its mere existence rendering the land of less value.^^ The covenant for quiet enjoyment is broken only when the covenantee is disturbed, as in this case by the entry into the mine and the taking the frag- ments of coal in 1848.^ The deed of purchase having conveyed 20. Id. 116. The judgment of the majority of the court in the case was different from that of the Chief Baron but principally upon different grounds. The facts of the case suffi- ciently appear from the judgment. Banning on Limitations, 177-1S7. 21. If the grantor was not seised, the covenant of seisin is immediately broken. Greenby v. Wilcocks, 2 Johns. (N. Y.) 1, 3 Am. Dec. 379; Bingham V. Weiderwax, IN. Y. 509; Hamilton V. Wilson, 4 Johns. (N. Y.) 72, 4 Am. Dec. 253; Grannis v. Clark, 8 Cow. . & B. Eq.) 289. 399. 47. Wilson v. Wilson, 1 McMull. 49. Austin v. Moore, 48 Mass. (7 S. C.) Eq. 329. And see Smith v. Mete.) 116. iske, 31 Me. 512. 50. Yeary v. Cummins, 28 Tex. 91. 822 Statutes of Limitation. § 176. Effect of acknowledgment of payment on specialties. In those States where no provision is made by statute relative to specialties, the effect of acknowledgment is thus expressed by Mr. Banning in his work on Limitations : ^^ " The principle on which the courts acted previously to the statute we are now con- sidering was this : ^^ there was then no statute which prevented a bond creditor coming and claiming his debt at any time; but the courts of law, and the courts of equity following them, held the doctrine of presumption, that after a certain lapse of time pay- ment must be presumed, and when an action was brought on a bond or other specialty, what the courts of law did with respect to a defense founded on a lapse of time was, that after twenty years the judge would direct the jury to presume payment.^^ Of course that presumption, like any other, was capable of being rebutted by evidence, and the court held that evidence of an acknowledgment would be sufficient to rebut the presumption." 51. Page 185. See Blair v. Ormond, 17 Q. B. 433. 62. See Moodie v. Bannister, 4 Drew. 432. See Hart v. Nash, 3 C. M. & E. 337, and Hooper v. Stephens, 4 Ad. 6 El. 71; Worthington v. Grimsditch, 7 Q. B. 479 ; Callander v. Howard, 10 C. B. 655; Bealy v. Greenslade, 3 C. 740; and the note in 1 Smith's Lead. Cas. 331, on Whiteomb v. Whiting, 3 Dougl. 653; Lucas v. Jones, 5 Q. B. 949; Gillingham v. Waslcett, 13 Price 434; Sanders v. Coward, 15 M. & W. 48, 56; Tuckey v. Hawkins, 4 C. B. 655; Beady v. Greenslade, 3 C. & J. 61; Hollis V. Palmer, 3 Bing. New Cas. 713, and Savile v. Jackson, 13 Price 7^5. 53. In Jackson v. Pierce, 10 Johns. (N. Y. ) 414, where a mortgage had lain dormant from April, 1774, to March, 1802, it was held that, after deducting the period of the American Revolution, the lapse of time was suf- ficient to aflFord the presumption of payment. The presumption becomes absolute after the lapse of the period fixed by statute for prescription in analogous cases. If there is no entry or payment of interest, and being a presumption of law, it is in itself conclusive, unless encountered by dis- tinct proof. Whitney v. French, 35 Vt. 663. In Ware's Adm'rs v. Ben- nett, 18 Tex. 794, a negleet to fore- close a mortgage for four years after it falls due was held not conclusive ground for assuming, in favor of pur- chasers of the mortgagor's interest, that the mortgage had been paid. See also Appleton v. Edson, 8 Vt. 339. 54. But this presumption is ef- fectually repelled by a payment of in- terest within the statutory period be- fore action brought, Hughes v. Black- well, 69 N. C. (6 Jones Eq.) 73; and the admissions of a mortgagor that the mortgage debt is due are evidence Specialties. 823 In fact, it ,was impossible for a debtor against whom an action was broiigiit to ask the court to pronounce that the debt has been paid, when he had himself acknowledged the existence of the debt. It appears, therefore, to be a correct statement that, in the case of a specialty debt, the court could receive in evidence any acknowl- edgment of the alleged debtor in any shape, even when that ac- knowledgment was made to a third person, and that it was not necessary that such acknowledgment should amount to a new cause of action." ^^ Where specialties are brought within the statute, and no pro- vision is made for keeping them on foot by an acknowledgment, an acknowledgment can have no effect in suspending the opera- tion of the statute, because the action thereon is not founded upon a promise, but upon an obligation of a higher nature, and in order to keep it on foot the recognition of its validity and con- tinuance must be of as high a character as the instrument creating to rebut the presumption of payment, especially where it does not appear that the true tenant had an interest before the admissions were made. Frear v. Drinker, 8 Pa. 520. The presumption of payment, so far as mortgages are concerned, does not apply so long as the possession of the mortgaged premises is in the mort- gagee. Crooker v. Jewell, 31 Me. 306. 55. In New Hampshire, in Howard V. Hildreth, 18 N. H. 105, it was held that when a mortgagor has retained possession of mortgaged premises for more than twenty years after the ex- ecution of the mortgage, but has ac- knowledged the debt and paid inter- est upon it within twenty years there is no presumption that the debt is discharged; and the same has also been held in South Carolina. Wright V. Eaves, 10 Rich. (S. C.) Eq. 583. But in Gould v. White, 26 N. H. 178, it was held that unexplained possession of the mortgaged prem- ises for more than twenty years, may be left to the jury in connection with proof of partial payments and other evidence, as tending to show that the mortgage debt was fully paid. A pre- sumption of payment is not like an actual payment which satisfies the debt as to all the debtors; it oper- ates as a payment only in favor of the party entitled to the benefit of the presumption; and, in case of the lapse of over twenty years from the time when a bond secured by mort- gage becomes due, the presumption of payment of the mortgage will not, as to the purchaser and those claim- ing under him, be repelled by proof of a payment made by the mortgagor after he had conveyed the prmeisea to another person. New York L. Ins. & Trust Co. v. Covert, 39 Barb. (N. Y.) 433. 824; Statutes of Limitation. the oHIgation. Payments, however, afl will be seen, may have this effect.^ § 176a(l). Sealed instruments in general — Limitations appli- cable. A contract under seal is not governed, in New York, by the six-years statute of limitations.^'' The right to enforce specific performance of a contract under seal acted on by the parties up to within less than twenty years of the commencement of the suit for specific performance is not barred by limitations, in JN^orth Caro- lina.^' As a general rule, sealed instruments within the limita- tion statute include all sealed contracts regardless of their nature, and an action on a sealed contract, executed in 1898, to make monthly payments for rent due, is controlled by Wisconsin St. 1898 § 4220, permitting actions on sealed instruments VTithin twenty years after the action accrues.^' In Virginia, the three-year stat- ute of limitations is inapplicable to an obligation evidenced by a writing under seal.*" In South Dakota, the distinction between sealed and unsealed instruments is abolished, by statute, except with respect to the period of limitation.*^ § 176a (2). What constitutes instrument under seal in general. A recital in an unsealed instrument that it is under seal makes 56. See Chap. XVIII., Mortgages. 58. Parrott v. Atlantic & N. C. E. 57. City of New York v. Third Ave. Co., 165 N. C. 295, 81 S. E. 348. E. Co., 87 N. Y. Supp. 584, 42 Misc. 59. Mariner v. Wiens, 137 Wis. Eep. 599, aflf'd 101 N. Y. Supp. 1116, 637, 119 N. W. 340. 115 App. Div. 899. Under St. 1913, §§ 4220, 4221, an An action under Code Civ. Proc, § agreement under seal by a surety is 1843, to charge an heir at law with not barred until twenty years if the liability arising out of a sealed in- cause of action arose in the State or strument of his ancestor in title, is ten years if it arose without the not, because statutory, limited to six State. John A. Tolman & Co. v. years by § 382, but, founded on the Smith, 159 Wis. 361, 150 N. W. 419. original obligation of the ancestor, 60. Lurty's Curator v. Lurty, 107 is not barred by a less time than Va. 466, 59 S. E. 404. would have barred the ancestor. City 61. Gibson v. Allen, 19 S. D. 617, Equity Co. v. Bodine, 126 N. Y. Supp. 124 N. W. 275, under Eev. Civ. Code 439- S. D., §§ 58, 1243. Specialties. 825 the instrument a sealed one for the purpose of the statute of limi- tations.*^ The mere attaching of a seal after the signature does not raise the presumptoin that a note is a sealed instrument, unless there be a recognition of the seal in the body of the instrument by some such phrase as " Witness my hand and seal " or " Signed and sealed;" and, in the absence of such circumstances, the seal is regarded merely as surplusage, and the character of the note is not changed.^ A mortgage reciting, " In witness whereof, the said parties of the first part have hereunto set their hands and seals," and in which the word " seal " follows the name of each mortgagor, is a " sealed instrument " within South Dakota Code Civ. Proc, § 58, permitting an action on such an instrument any time within twenty years.®* An instrument in the form of a bond, reciting that it was sealed, is not within the Wisconsin six-year statute, but is a sealed instrument, though without scroll or flourish after the names of the signers.®' Rhode Island Gen. Laws 1896, c. 234, § 4, allowing twenty years for bringing an action on a specialty, and not chapter 288, § 8, allowing one year for bringing suits founded on any penal statute, is the statute of limitations applicable to an ac- tion authorized by chap. 180, § 22, to enforce the individual liabil- 62. Slade v. Bennett, 133 App. Div. but providing that no instrument 666, 118 N. Y. Supp. 278. shall be considered under seal unless 63. In re Pirie, 198 N. Y. 209, 91 so recited in its body. Anderson v. N. E. 587, judg. modified on rehear- Peteet, 6 Ga. App. 69, 64 S. E. 284. Ing 198 N. Y. 209, 91 N. E. 1144, aff'g 65. Oconto County v. MacAUister, order 117 N. Y. Supp. 753. 155 Wis. 286, 143 N. W. 702; Oconto 64. Green v. Frick, 25 S. D. 342, County v. Lindgren, 155 Wis. 303, 143 126 N. W. 579. N. W. 707. The words " Witness hand and Where a guaranty, not sealed, of seal," at the conclusion of an instru- the performance of a contract, was ment, followed by the signature of indorsed on the back of the contract, the maker, with the word " Seal " the guarantor did not thereby adopt in bracketts annexed to the signature, the seal to the contract, so as to are equivalent to " Witness my hand make his contract of guaranty a con- and seal," or " Signed and sealed," tract under seal, and subject to the and the instrument is an instrument twenty-year limitation prescribed by under seal, within Georgia Civ. Code Wis. Rev. St. 1898, § 4220. Spenser 1895, § 3765, limiting the time for an v. Holman, 113 Wis. 340, 89 N. W. action on an instrument under seal 132. 826 Statutes of Limitation. ity of stockholders for the debts of the corporation in case of non- performance of statutory duties, since the action, though of a penal character, is not an action to enforce a penalty, within the meaning of the words " penal statute," as used in chapter 288.*® § 176a (3). Mortgages. In ISTew York, where a life tenant paid a mortgage on the prop- erty for the protection of her life estate and became subrogated to the rights of the mortgagor, she had twenty years from the time of the final payment in which to foreclose the bond and mortgage, which were under seal.®^ In Arkansas, where a note and mortgage, both under seal, were executed after the act of 1889, the period of limitation is five years.''^ In South Carolina, a mortgage invalid as a legal mortgage through insuificient attestation, but enforce- able as an equitable mortgage, is governed by Code Civ. Proc. 1902, § 111, limiting the time to suits on sealed instruments, other than notes or bonds to pay money only to twenty years, and not by the six-year statute.®' An action to foreclose a mortgage on land in the state is a local proceeding, which cannot be maintained in the courts of any other state, and consequently accrues in the state, al- ■ though both plaintiff and defendant reside in another state, and the debt secured by the mortgage is made payable there; and such action is not within the Wisconsin statute, limiting to ten years actions upon sealed instruments, accruing without the state.™ 66. Kilton v. Providence Tool Co., Co., 77 Ark. 379, 91 S. W, 752. See 23 R. I. 605. 48 Atl. 1039. also Hance v. Holiman, 69 Axk. 57, 67. Bonhoflf \. Wiehorst, 57 Misc. 60 S. W. 730; New England Mortgage Rep. 456, 108 N. Y. Supp. 437. Security Co. v. Reding, 65 Ark. 489, 68. Simpson v. Brown-Desnoyers 47 S. W. 132. Slioe Co., 70 Ark. 598, 70 S. W. 305. 69. Stelts v. Martin, 90 S. C. 14, But wliere a mortgage executed in 72 S. E. 550. See also Jennings v. 1884 was under seal and contained Peay, 51 S. C. 327, 28 S. E. 949, un- an express covenant to pay the debt, der Code Proc. 1870, § 113, wliicli the period of limitation for foreclos- made the same limitation, ure was ten years from the accrual 70. Wells v. Scanlan, 124 Wis. 239, of the right of action. Livingston 102 N. W. 571, under Wis. Rev. St. V. New England Mortgage Security 1898, § 4221, suhd. 2. Specialties. 827 § 176a(4). Sealed note or indorsement thereon. While a negotiable note need not be under seal, if the parties attach a seal thereto, it becomes a contract under seal, within Massachusetts Eev. Laws, c. 202, § 1, providing that actions on con- tracts under seal are limited to twenty years next after the cause of action accrued.'^ Where the owner of a judgment note under eeal is wrongfully deprived of the possession thereof by the maker, and subsequently at a date more than six years from the act of dis- possession but within twenty years from the date of the note, the executor of the owner brings suit to recover the amount due on the note, he may show the unlawful dispossession and the amount due and his recovery cannot be defeated by a plea that the suit was not instituted until after six years from the date of the dispossession.'^ A note signed by two parties as makers, the signature of each being followed by the letters " L. S.," and which had the words " Given under the hand and seal of " each party in the body of the note, contained a sufficient recital that it was under seal to make it a sealed instrument, within Georgia Civ. Code, § 3765, authorizing action thereon within twenty years.'^ An instrument stating that a corporation has caused its corporate seal to be affixed and " this promissory note is to be signed by its president," signed " The P. Co., by F., President," with the corporate seal attached, is the bond of such company, but is not necessarily a sealed instrument 71. Clarke v. Pierce, 315 Mass. 552, thereof, under seal; and hence an ae- 103 N. E. 1094. tion against him was barred after 72. Smith v. Smith, 35 Pa. Super, the expiration of the period for bring- Ct. 323. ing action on simple contracts. Rid- 73. Barnes v. Walker, 115 Ga. 108, ley v. Hightower, 113 Ga. 476, 37 S. 41 S. E. 243. E.- 733. The statutory bar applicable Though the contract of the maker to the indorsement of a sealed note of a note was under seal, the contract by the payee thereof is twenty years, of one who wrote his name on the though no seal follows the signature back of such note merely for the pur- of the payee. Baldwin Fertilizer Co. pose of guarantying its payment, but v. Carmichael, 116 Ga. 763, 42 S. E. whose signature was not necessary to 1002. its negotiation, was not, by reason 828 Statxttes of Limitation. as to the stockholders, who signed their names on the back before delivery, to give credit thereto.^* § 176a (5). Coupons. In Pennsylvania, a suit on bond coupons is governed by the statute of limitations applicable to sealed instruments, and not that applicable to simple contract debts ; ''^ and, in ISTew York, intei^ est coupons of bonds therein described are not outlawed until the bonds are, though they are detached from the bonds.™ § 176a (6). Covenants in conveyance An action for breach of covenants of a deed is within the Colo- rado statute, prescribing a three yeai-s' limitation from date of accrual of cause of action for all personal actions, on any contract, not otherwise limited." In Georgia, when a grantee accepts a deed and becomes bound by the covenants therein, and the instrument is under seal, the period of limitation applicable to a suit brought for a breach of the coveiiants is twenty years.'* In E"ew York, where a grantee of land accepted a covenant obligating her to pay a sum of money to a third person, such a covenant is barred only by the twenty-year statute of limitations.'' Where a railroad mort- gage executed to a trustee contained no express covenant on the part of the trustee, one cannot be implied, unless clearly growing out of the language or the obvious intent of the parties ; and a suit by the bondholders secured, against the trustee, for its failure to properly protect their interests, is one for a breach of duty implied by law, and not for a breach of covenant, for the purposes of de- termining the statute of limitations applicable to such suit.'*' In 74. Somera v. Floria Pebble Phos- 77. Hayden v. Patterson, 39 Colo, phate Co., 50 Fla. 275, 39 So. 61. 15, 88 Pac. 437, under Mills' Ann. St 75. Prescott v. Williamsport & N. Colo., § 2905. B. E. Co., 159 Fed. 244 (U. S. C. C, 78. Kytle v. Kytle, 128 Ga. 387, 57 Pa.). S. E. 748. 76. Kelly v. Forty-Second St., etc., 79. Anguish v. Blair, 160 App. Diy. Ey. Co., 55 N. Y. Supp. 1096, 37 App. 52, 145 N. Y. Supp. 392. Div. 500. 80. Friahmuth v. Farmers' Loan & Specialties. 829 Missouri, where a grantee accepts a deed to himself, reciting that he assumes and agrees to pay the mortgage debt on the land, he becomes bound as a covenantor to discharge the mortgage, and the ten-year, and not the five-year, statute of limitations is appli- cable.^ A covenant against incumbrances is, in effect, that the premises are free from incumbrances at the time of the conveyance and, if any incumbrances exist, the covenant is broken, and a cause of action accrues which will be barred by limitation, under Neb- raska Code Civ. Proc, § 10, barring actions on specialties in five years.^^ In North Carolina, an action in contract for the breach of covenants of seisin and warranty in a deed, and not in tort for fraud is governed by Code, § 158, limiting the right to commence such an action to ten years after its accrual.*^ § 176a (7). Bonds in general. In Kentucky, an action on a bond taken by a court commis- sioner to secure the payment of the purchase money for lands of a decedent, together with an action to enforce a purchase-money lien reserved upon the land, is barred after the lapse of more than fifteen years from the maturity of the bond.** In Massachusetts, Trust Co., 107 Fed. 169, 46 C. C. A. 82. Bellamy v. Chambers, 50 Neb. 233 (U. S. C. C. A., N. Y.) . ;\l46, 69 N. W. 770. Where there was no positive cove- , 83. Shankle v. Ingram, 133 N. 0, nant by the trustee to carry out the t354, 45 S. E. 578, and § 155 (9), provisions of a mortgage executed by limiting the right to commence an a railroad to a trust company as action for fraud to three years after trustee for certain bondholders, an the discovery of the fraud, does not action against it for failure to so apply. comply is not an action on the mort- 84. French v. Bowling, 37 Ky. Law gage within the twenty years statute Rep. 639, 85 S. W. 1183, under Ky. of limitations relating to actions on St, 1903, § 2514, requiring actions sealed instruments. Ehinelaiider v. on bonds to be commenced within Farmers' Loan & Trust Co., 173 N. fifteen years. Y. 519, 65 N. E. 499, aff'g judgs. 58 See Pilcher v. McCowan, 8 Ky. App. Div. 473, 69 N. Y. Supp. 437; Law Eep. (abstract) 786, an action £8 App. Div. 619, 69 N. Y. Supp. on a replevin bond is barred after 1144. fifteen years. 81. Smith v. Davis, 90 Mo. App. «33. 830 Statutes of Limitation. where an action against executors on a bond executed by their tes- tator was supported by a previous demand, and was brought within twenty years from the execution of the bond, it was not barred by the general statute of limitations.^^ Under the Nebraska Code Civ. Proc, § 14, providing that an action on an official bond or under- taking of any officers, or on the bond or undertaking in attach- ment or in any case whatever required by statute, can be brought only in ten years, an action on an appeal bond is not barred until after ten years.^^ In Mississippi, where a trust fund was created for the payment of levee bonds, as the right to sue for trust funds is controlled by the ten-year statute of limitations, the holders of such bonds were barred from seeking to enforce them after ten years.*' Where a bond was not sued on for twelve years after it became due, and no evidence was introduced to take the case out of the statute of limitations, a plea of the statute of limitations was good, and will defeat a recovery on the bond.*^ In Washing- ton, an action on a public contractor's bond is barred when brought more than three years after the debt was contracted.*' § 176a(8). Official bonds. A state law prohibiting actions on testamentary bonds more than six years from their date does not affect a suit by a receiver of an insolvent national bank against executors and legatees of a deceased stockholder to enforce statutory liability.'" Although a city trea- surer was guilty of a breach of his official bond in failing to pay over interest derived from municipal funds, an action therefor by 85. Herbert v. Squire, 186 Mass. 189, 88. Galbreath v. City of Knoxville, 71 N. E. 534. 105 Tenn. 453, 59 S. W. 178. As to actions on bail bonds, see 89. Kepi v. Fidelity & Deposit Co. Lane v. Smith, 19 Mass. (2 Pickle) of Maryland, 81 Wash. 135, 142 Pac. 281; Fitch v. Burr, 1 Root (Conn.) 489, under Rem. & Bal. Code, § 1159. 365. See also Johnson Service Co. v. Aetna 86. Crum v. Johnson, 3 Neb. Indemnity Co., 46 Wash. 434, 90 Pac. (XJnof.) 826, 92 N. W. 1054. i590, under Pierce's Code, § 6121 (Ball- 87. Woodruff v. State, 77 Miss. 68, inger's Ann. Codes & St., § 5925). 25 So. 483. 90. Rankin v. Miller, 207 Fed. 60S (U. S. D. C). Specialties. 831, lie city was not founded upon the contract as evidenced by the )ond, and Montana Eev. Codes, § 6445, did not apply .^^ An action igainst a principal in an administrator's bond is barred under Kentucky St., § 2514, after fifteen years from the accrual of the sause of action, except in ease of trusts within section 2543.^^ \ix action on the official bond of a county judge is barred in ten rears after the cause of action accrued, in Nebraska.'^ In Penn- 91. City of Butte v. Goodwin, 47 tfont. 155, 134 Pac. 670. An action on a bond of a county reasurer, whose duties are defined by lev. Codes, § 2986, is on a "liability reated by statute," which is barred n two years by § 6449, subd. 1, and lot on a " liability on an instrument n writing," barred in eight years by 6445. Gallatin County v. United states Fidelity & Guaranty Co., 50 ilont. 55, 144 Pae. 1085. In Wisconsin, a county's right of .ction on defaults by its treasurer, ccurring in 1897 and 1899, in view f St. 1878, § 4976, is governed in oth cases by Laws 1893, c. 268 (St. 898, i 984), if it had notice of the efault, or, if not, by Rev. St. 1878, § 220, fixing a twenty-year limitation 3 to the default occurring prior to he Revision of 1898, which exempted uch actions from the purview of § 220. Oconto County v. MacAllister, 55 Wis. 286, 143 N. W. 702; Oconoto iounty V. Lindgren, 155 Wis. 303, 143 r. W. 707. 92. Baugh's Adm'x v. Baugh's Ldm'r, 159 Ky. 320, 167 S. W. 124; [argis V. Sewell's Adm'r, 87 Ky. 63, Ky. Law Rep. 920, 7 S. W. 557, the mitation of fifteen years applies to le obligor and that of five years to is surety. Ky. St., § 2514, allows fifteen years within which to commence an action on the official bond of a sheriff. Sec- tion 2515 allows five years within which to commence an action for torts. An action against a sheriif on his bond for his official misconduct in attaching property under process against a third person is barred in fifteen years; the misconduct not be- ing a tort, within § 2515. Hill v. Ragland, 114 Ky. 209, 24 Ky. Law Rep. 1053, 70 S. W. 634. A surety on a sheriff's official bond is dis- charged, by Ky. St., § 2551, from lia- bility thereon for the sheriff's official misconduct, when seven years have elapsed without suit thereon. Id. The seven-year limitation statute releases the sureties on a special commission- er's bond executed in the course of a judicial proceeding. Isaacs v. Murphy, 1 Ky. Law Rep. (abstract) 409. An action on the official bond of a county judge is not barred until the lapse of fifteen years. Common- wealth V. Tilton, 111 Ky. 341, 23 Ky. Law Rep. 753, 63 S. W. 603. The fifteen-years statute applies to an ac- tion by a creditor for an accounting by an assignee. Richardson v. Whit- aker, 103 Ky. 425, 20 Ky. Law Rep. 121, 45 S. W. 774. 93. Chicago, B. & Q. R. Co. v. Philpott, 56 Neb. 212, 76 N. W. 550. 832 Statutes of Limitatioit. sylvania, where a coimty treasurer has received money belonging to a city as the proceeds of liquor licenses, the fact that the money was not received by the treasurer within six years of the commence- ment of the suit is not a defense in an action on his official bond, since the obligation to pay is secured by a sealed instrument^ § 176b(l). Covenants and conditions in general— Accrual of right of action. Where a lease for three years provided for a percentage of the lessee's gross sales as rent, the amount to be determined weekly, the lessee turning all moneys over to the lessor, who agreed to pay the salaries of lessee's employes and return the balance after de- ducting rent and payments, there were facts sufficient to support an action of covenant under a claim against the lessor, as affecting the running of limitations.^^ While a cause of action on a covenant accrues on the occurrence of any breach thereof, the statute of limitations is not set in motion where such a breach is merely formal, so as to prevent recovery of substantial damages subse- quently resulting, but the statute begins to run as to those damages from the time they occur.'^ A warranty as to the kind and quality 94. Lehigh County v. Goasler, 24 of the landlord to re-enter in case Pa. Super. Ct. 406. of default, and for the erection by As to limitation of action on offi- the tenant of a building, and the cial bonds, see also: purchase thereof by the landlord at Ala. — Easco v. Jegerson, 142 Ala. the expiration of the leasf for two- 705, 38 So. 245, constable's bond. thirds of its then appraised valne, Ga. — GrifSn v. Collins, 132 Ga. and the landlord took possession of 102, 49 S. E. 827, guardian's bond. the premises in June, 1S98, for non- S. D. — Connor v. Corson, 13 S. D. payment of rent, an action on the 550, 83 N. W. 588, sheriflf's bond. covenant to pay for the building, con- Fa. — Jennings v. Taylor, 102 Va. strued as requiring payment on the 191, 45 S. E. 913, county treasurer's landlord taking possession, was bar- bond, red when brought more than six yeara 95. In re O'Gorman Co., 195 Fed. after the landlord took possession. 650 (U. S. D. C). Toellner v. McGinnis, 55 Wash. 430, Where a lease dated July 15, 1889, 104 Pao. 641. for fifteen years, stipulated for the 96. State ex rel. Patterson T. Titt- payment of rent subject to the right man, 134 Mo. 162, 35 S. W. 579. Specialties. 833 ( of goods sold, if breached at all, is generally breached when made, and limitations run from the date of the sale; but where a warranty of goods sold relates to a future event by which it will be ascertained whether the warranty will be breached or not, the war- ranty is not breached until the happening of the future event.^'' § 176b(2). Covenants in sale or conveyance. Where a covenant of seisin and warranty is broken at the time the deed is delivered limitations begin to run against an action on the covenant from the delivery of the deed.^* In Missouri, where any estate passes by a deed containing covenants of seisin, or the grantee takes actual possession, the estate or possession carries the covenants, and makes them run with the land, and the covenants are substantially breached only when the grantee is deprived of the estate conveyed, or when he has been ousted from actual pos- session by the holder of the paramount title, and limitations run only from that time.'' In Iowa, where a grantee takes possession of land under a deed with covenants of seisin and general warranty, though there may be a technical breach of the covenant of seisin if the grantor has no title, no substantial damage accrues until the 97. Ingalls v. Angell, 76 Wash. Mo. App. 394, 101 S. W. 696; Pine- €92, 137 Pac. 309. land Mfg. Co. v. Guardian Trust Co., 98. Shankle v. Ingram, 133 N. C. 139 Mo. App. 309, 122 S. W. 1133. 254, 45 S. E. 578; Pigeon Eiver Lum- Limitations do not begin to run on ber & Iron Co. v. Mims (Tenn. ), 48 a covenant of seisin until the cove- S. W. 385. nantee suflfers actual loss. Jones v. 99. Falk V. Organ, 160 Mo. App. Hazeltine, 124 Mo. App. 674, 102 218, 141 S. W. 1. S. W. 40. A covenant of seisin implied from Covenant of seisin is breached at the use of the statutory words "grant, the date of the deed, and the statute bargain and sell" in a deed, like a then commences to run; the covenan- covenant of warranty, is a covenant tor having then no estate, title, or of indemnity running with the land, possession, but merely a tax deed, so that an action for breach thereof void because based on a judgment so far as the recovery of substantial against one dead at time of its rendi- damages is concerned only accrues tion. Frank v. Organ, 167 Mo. App. from the date of eviction because of 493, 151 S. W. 504. a paramount title. Leet v. Gratz, 124 53 834 Statutes of Limitation, grantee is evicted, 'and the statute of limitations does not begin to run until such eviction ; but if no possession or right passes under the conveyance, the covenants are broken at once, the right of ac- tion immediately accrues and is barred if not prosecuted within the statutory period.^ In Minnesota, the statute of limitations does not begin to run against an action for breach of a covenant of seisin from the delivery of the deed, but from the time the covenantee is compelled to yield to a superior outstanding title.^ The same rule is maintained in Kentucky,' North Carolina,* Oregon,^ and Texas.^ In Kansas, the covenants of seisin and of the right to convey, and that the land is free from incumbrances, are broken as soon as the deed is executed, if the title be bad, and a cause of action accrues at once.' In Massachusetts and l^ebraska, if in- cumbrances exist at the time of the conveyance, the covenant against incumbrances is broken, and a cause of action accrues.* In New 1. Sturgis V. Slocum, 140 Iowa S5, 116 N. W. 128 ; Foshay v. Shaf er, 116 Iowa 302, 89 N. W. 1106. Although a technical right of ac- tion for breach of warranty against incumbrances arises at the time of the execution of the deed on which nom- inal damages might be recovered, the right to substantial damages does not arise until the incumbrances have been enforced against the land; and hence limitations against an action for breach of covenant commences to run from the latter date. Tukey v. Reinholdt (Iowa), 130 N. W. 737; McClure v. Dee, 115 Iowa 546, 88 N. W. 1093, 91 Am. St. Hep. 181. 2. Brooks v. Mohl, 104 Minn. 404, 116 N. W. 931. 3. Chenault v. Thomas, 119 Ky. 130, 26 Ky. Law Rep. 1029, 83 S. W. 109. 4. Wiggins v. Pender, 132 N. C 628, 44 S. E. 362, 61 L. R. A. 772. 5. Northern Pac. R. Co. v. Mont- gomery, 86 Fed. 251, 30 C. C. A. 17 (U. S. C. C. A., Or.). 6. Hays v. Talley (Tex. Civ. App,), 161 S. W. 439; Coleman v. Luetckc (Tex. Civ. App.), 164 S. W. 1117; Sievert v. Underwood (Tex. Civ. App.), 124 S. W. 731; Huff v. Reilly, 26 Tex. Civ. App. 101, 64 S. W. 387; Herr v. Rodriguez (Tex. Civ. App.), 50 S. W. 487; Seibert v. Bergman, 91 Tex. 411, 44 S. W. 63, 873. 7. Jewett V. Fisher, 9 Kan. App. 630, 58 Pac. 1033. In an action by the grantee on a covenant against taxes, limitations commence to run from the time he paid the taxes, and not from the time it was assessed. Greer v. McCarter, 5 Kan. 17. 8. Kramer v. Carter, 136 Mass. 504; Bellamy v. Chambers, 50 Neb. 146, 69 N. W. 770. See also Watson v. Heyn, 63 Neb. 191, 86 N. W. 1064, as to limitation against action on covenant of warranty. Where a minor Specialties. 835 York, the assertion and exercise of an easement created by a lane partly on each of two adjoining lots by one adjoining owner is a sufficient eviction to entitle the other to sue for a breach of a cove- nant against incumbrances, and hence to start the running of limi- tations against an action for such breach.^ In West Virginia, if land conveyed by general warranty is in adverse possession under paramount title at the execution of a deed, the grantee's eviction dates, and the statute of limitations against an action for breach of warranty runs, from that date.^* § 176b(3). Bond or contract of suretyship in general. Limitations do not begin to run against a cause of action on an administrator's bond until there is a final judgment in probate court which is violated by the administrator.-^^ Where an admin- istrator was removed for failure to file a new report and pay into court the money in his hands, limitations did not begin to run against a suit on his bond until he was removed for failure to com- ply with the order.^^ Where the judgment approving an adminis- trator's final report including a fraudulent credit was set aside, and he was ordered to account therefor, his refusal to do so was a breach of his bond, and limitations began to run from the date of his refusal to comply with the order. ■'^ Since no action accrues conveys realty and subsequently dis- grantee therein constructive posses- affirms the deed, covenants in deeds sion of the land and amounting to an granted by persons holding under con- eviction. Bray v. Fletcher, 132 Mich, veyance from such minor were not 273, 9 JJetroit Leg. N. 610, 93 N. W. broken until the disaffirmance, and 624. hence limitations did not begin to In Arkansas, a cause of action for run against the action of covenant breach of warranty of title accrues until that time. Pritchett v. Eedick, at the time of the conveyance, and 62 Neb. 296, 86 N. W. 1091. not when the contract to convey is 9. Ladue v. Cooper, 32 Misc. Rep. made. Crawford County Bank v. 544, 67 N. Y. Supp. 319. Baker, 95 Ark. 438, 130 'S. W. 556. 10. Ilsley V. Wilson, 42 W. Va. 757, 11. Hall v. Cole, 71 Ark. 601, 76 26 S. E. 551. S. W. 1076. In Wisconsin, limitations begin to 12. Craven v. State, 50 Ind. App. run against an action for breach of 30, 97 N. E. 1031. warranty from the date of recording 13. Tucker v. Stewart, 147 Iowa a tax deed, the statute giving the 294, 136 N. W. 183. S36 Statutes of Limitation. against the sureties on an administrator's bond until there has been some breach of the conditions thereof, the statute of limi- tations does not begin to run until such breach has occurred." In Kentucky, an administrator and his surety may be sued by the heir for a settlement and distribution at any time after nine months after administration; and limitation runs from the time when he might first be sued.^^ In Missouri, a right of action ac- crues to the distributees on the bond for the failure of an executor to account and distribute the assets, when their right to those assets have become fixed by law, and limitation begins to run when the right of action accrues.^^ In ISTebraska, limitations do not As to an attachment bond, see "Val- ley Bank of Clarlnda v. Shenandoah Nat. Bank, 109 Iowa 43, 79 N. W. 391. 14. Carr v. Catlin, 13 Kan. 393. An action to recover damages on an attachment bond should be commenced within five years from the final de- termination of the court that the or- der was wrongfully obtained. Baker V. Skinner, 63 Kan. 83, 64 Pac. 981; Cook V. Smith, 67 Kan. 53, 72 Pac. 524. As to limitation on action on bond of a contractor for the erection of a public building, see Hull v. Mass- achusetts Bonding & Ins. Co., 86 Kan. 342, 120 Pac. 544. 15. Donnelly v. Pepper, 11 Ky. Law Eep. (abstract) 365. The seven-year limitation is a bar to an action against a surety, with- out regard to the obligee's knowledge of the suretyship. Weller v. Ralston, 28 Ky. Law Eep. 572, 89 S. W. 698; Jeflferson's Adm'r v. Jefferson, 4 Ky. Law Rep. (abstract) 723; Nunn v. Pedigo, 6 Ky. Law Rep. (abstract) 743. As to other actions against sure- ties barred in seven years, see : Dohn V. Bronger, 20 Ky. Law Rep. 823, 47 S. W. 619 ; Deposit Bank of Midway's Assignee v. Hearne, 20 Ky. Law Rep. 1019, 104 Ky. 819, 48 S. W. 160; Du- gan V. Champion Coal & Towboat Co., 105 Ky. 821, 20 Ky. Law Rep. 1641, 49 S. W. 958; Ryan v. Caldwell, 106 Ky. 543, SO Ky. Law Rep. 2030, 50 S. W. 966; Howard v. Lawrence, 23 Ky. Law Rep. 680, 63 S. W. 589. No cause of action could arise on a re- ceiver's bond until he had settled his accounts and made his report and until the court determined to whom the money was to be paid, and hence limitations would only run from such time. United States Fidelity &. Guar- anty Co. V. Shields, 157 Ky. 371, 163 S. W. 203. 16. State eoo rel. Fagan v. Grisby, 92 Mo. 419, 5 S. W. 39. The statute of limitations does not run in favor of an administrator on his bond until ten years after his final settlement. Nelson v. Barnett, 123 Mo. 564, 27 S. W. 530. As to limitation to an action on a sheriff's bond, see State, to the Use of Blacker V. O'Neill, 114 Mo App. 611, 90 S. W. 410; State, to the Use of Lindsay (Mo. App.), 90 S. W. 413. opEciALTiEs. aat begin to run against an action on a bond of an administrator for failure to pay over tbe money foimd due the estate on his final accounting until the decree directing payment is entered.-^^ In l^evf York, where an administrator was directed, on a judicial set- tlement, to retain fimds in his hands till further order of the court, and on a subsequent settlement he was discharged on the payment of the balance due, limitations run against an action to recover such balance from him and his bondsmen f rdm the date of the last order.^^ In Xorth Carolina, limitations do not run upon a cause of action against the surety for a wrongful attachment until the judgment in the suit is rendered for the defendant.^' In Texas, limitations begin to run against a bond given by an employe con- ditioned on his accounting for all moneys received by him. when the contract of employment is terminated.-" § 176b (4). Guardian's bond. In Arkansas, where a guardianship is closed, and the probate court adjusts the accounts, a cause of action to recover the amount due from the guardian against the guardian's sureties accrues at once, if there is some person capable of suing therefor.^ In Indiana, limitations run against an action on a guardian's bond from the time of the breach." In Iowa, when the ward becomes of age, the statute of limitations b^ns to run against a cause of action on the bond for failure to account, whether or not demand for an 17. Mortenson t. Bergthold, 64 Neb. 19. Smith r. American Bonding Co., 208, 89 X. W. 742. 160 X. C. 574, 76 S. E. 481, under As to limitations on other actions Eevisal X. C. 1905, § 763. for breach of bonds, see: Xorthern 20. Wharton v. Fidelity Mut. Life Assur. Co. V. Borgelt, 67 Xeb. 2S2, Ins. Co. of Philadelphia (Tex. Civ. 93 N. W. 226: Xewell v. Clark, 73 N. App.), 156 S. W. 539. H. 289, 61 Atl. 555: Jordan v. Meyer, 21. Wallace v. Swepston, 74 Ark. 90 Tex. 544, 39 S. W. 1081; Cookus 520, 86 S. W. 398, 109 Am. St. Rep. T. Peyton's Ex'r, 1 Grat. (Va.) 431; 94. See also State r. Buck, 63 Ark. Sharpe's Ex'r v. Rockwood, 78 Va. 218, 37 S. W. 881. 24; MeCormick's Ex'rs v. Wright's 22. State v. Parsons, 147 Ind. 579, Ex'rs, 79 Va. 524. 47 X. E. 17, 63 Am. St. Rep. 430, 18. Betts V. Avery, 46 App. Div. action is barred after three years from 342, 61 X. Y. Supp. 525. the final settlement. 838 Stattttes of Limitation. accounting be made, and whether or not the guardian be ordered to account by the court.^^ In Kentucky, where no suit was brought against sureties on a guardian's bond for his defalcation until more than five years had elapsed after the ward became of age, the sureties were discharged from liability.^* In Maryland, limi- tations in favor of a guardian's bondsman do not begin to run until the guardian fails to turn over the ward's estate on his be- coming of age, where such failure is the only breach of the bond.^^ In Minnesota, the allowance of a guardian's account and the es- tablishment of a claim against him arising out of his guardian- ship do not set in motion the limitations prescribed in Gen. St 1894, § 5927, providing that no action shall be maintained unless commenced within one year from the time the claim is allowed or established in favor of legatee or heir of the surety on his bond.^* 23. Ackerman v. Hilpert, 108 Iowa Ky. Law Rep. 640, 47 S. W. 271, re- 247, 79 N. W. 90. hearing denied 104 Ky. 393, 47 S. W. 24. Bybee'a Ex'r v. Poynter, 117 877. Ky. 109, 25 Ky. Law Rep. 1251, 77 25. State v. Reilly, 89 Md. 162, 43 S. W. 698. Atl. 58. See Blake v. Wolfe, 105 Ky. 380, 26. Holden v. Turrell, 86 Minn. S14, 20 Ky. Law Rep. 1212, 49 S. W. 19; 90 N. W. 395. Brooks V. Troutman, 104 Ky. 392, 20 ,ToETs Quasi b Conteaottt. 839 CHAPTEE XVin. ToETS Quasi e Coitteactu. ^wnoif 177. Time runs from date of tort. 178. Consequential injury. 179. N^ligence. 180. Nuisances. 181. Action must be brought before prescriptive right has been ac- quired. 182. What requisite to establish prescriptive right. 183. Trover. 184. Trespass, Assault, etc. 185. Criminal conversation, 186. Seduction. 187. Failure to perform duty imposed by statute. 187a. Torts in general. Limitations applicable. 187b. Injuries to the person. 187c Injuries to property. 187d ( 1 ) . Torts in general. Accrual of right of action. 187d (2). Negligence. lS7d ( 3 ) . Negligence in performance of professional services. 187d (4). Injuries to person. 187d (5). Injuries to property in general. 187d (6). Continuing injury in general. 187d (7). Injuries to property by flowage, diversion or obetruction &f waters. 187d (8). Wrongful seizure of property. § 177. Time runs from date of tort. In the case of torts arising quasi e contractu, the statute usuallj commences to run from the date of the tort, not from the occurrence of actual damage.'^ And ignorance of the facts on the part of the plaintiff will make no exception to the rule, though he discovers his injury too late to have a remedy.^ This will be the case too, even 1. See Winters v. Dc Turk, 133 Pa. 2. See 34 Am. L. Eeg. (N. S.) 461; 359, 19 Atl. 354, 7 L. K. A. 658, and Alabama & Vicksburg Ey. Co. v. Bote. Jones, 73 Miss. 110, 19 So. 105, 55 Am. St. Rep. 488, 515, n. 840 Statutes of Limitation. where the defendant has betrayed the plaintiff into permitting the time to elapse in fruitless inquiries and negotiations.^ There may be eases where the injured party may bring trespass or trover, or may waive both, and bring assumpsit for the pro- ceeds of the property when it has been converted into money, and in the last case the tortfeasor cannot allege his own wrong so as to bring time back to the day of the tort.* And where a party has his election between trover and assumpsit, the fact that one remedy is barred will not defeat the other if the statute has not run upon that.^ Thus, where the maker of a note which was outlawed asked the holder to see it, and upon its being shown, destroyed it, it was held that trover lay for the note, and that the measure of damages was the face of the note with interest, notwithstanding the fact that the statute might have been suc- cessfully interposed against an action upon the note itself.® The ground upon which this ruling rests is, that it cannot be pre- sumed that, in an action ' upon a note or other obligation, so unlawfully destroyed by the maker, he would, although entitled to do so, have set up the statute to defeat it.^ § 178. Consequential injury. Although, as has been seen, time commences usually to run in defendant's favor from the time of his wrongdoing, and not from the time of the occurrence to the plaintiff of any consequential damage, yet in order to produce this result it is necessary that the wrongdoing should be such that nominal damages may be immed- iately recovered. Every breach of duty does not create an indi- vidual right of action ; and the distinction drawn by moralists be- 3. East India Co. v. Paul, 7 Moo. Eaym. 1316; Hitehin v. Campbell, 3 P. C. 85. See as to directors of in- W. Bl. 837; Hambly v. Trott, Comp. solvent bank, Hinsdale v. Larned, 16 371. •^^^^- ^^- 5. Ivey V. Owens, 38 Ala. 641. 4. Lamb v. Clark, 32 Mass. (5 6. Outhouse v. Outhouse, 13 Hun Pick.) 193. But there must be an ac- (N. Y.) 130. tual conversion. Jones v. Hoar, id. 7. Ibid.; Booth v. Powers, 56 N. Y. 385. See Lamine v. Dorrell, 2 Ld. 32. ToETS Quasi e Conteacttt. 841 tween duties of perfect and imperfect obligation may be observed in duties arising from the law. Thus a breach of public duty may not inflict any direct immediate wrong on an individual; but neither his right to a remedy nor his liability to be precluded by time from its prosecution, will commence till he has suffered some actual inconvenience.^ But it is otherwise where there is a private relation between the parties, where the wrongdoing of one at once creates a right of action in the other ; and it may be stated as an invariable rule that when the injury, however slight, is complete at the time of the act, the statutory period then commences, but, when the act is not legally injurious until certain conse- quences occur, the time commences to run from the consequen- tial damage, whether the party injured is ignorant of the circum- stance from which the injury results or not.* In a case where 8. Hurst V. Parker, 1 B. & Aid. 93 ; Tanner v. Smart, 6 B. & C. 603. 9. In Bank of Hartford Co. v. Wat- erman, 36 Conn. 334, where an offi- cer who had undertaken to attach real estate on mesne process made return that he had attached a cer- tain piece of land belonging to the defendant, and had left with the town clerk, as in such cases he was required by the statute to do, a true and at- tested copy of the writ and of his return thereon, but in fact he had left a copy of the writ and his re- turn in the town clerk's office, de- scribing another and different piece of the defendant's land from that de- scribed in his return on the original writ, Storrs, J., said: "Ignorance of his rights, on the part of the per- son against whom the statute has be- gun to run will not suspend its opera- tion. He may discover his rights too late to take advantage of the appro- priate remedy. Such is one of the occasional hardships necessarily in- cident to a law arbitrarily making legal remedies contingent on mere lapse of time. Brown v. Howard, 3 B. & B. 73; Sims v. Britton, 5 Exch. 803; Short v. McCarthy, 3 B. & Aid. 636; Blair v. Bromley, 5 Hare 543; Battley v. Faulkner, 3 B. & Aid. 388. When the injury, however slight, is complete at the time of the act, the statute period commences, Words- worth V. Harley, 1 B. & Aid. 391; but when the act is not legally in- jurious until certain consequences oc- cur, the statute begins to run from the consequential injury, Roberts v. Read, 16 East 315. In Gillon v. Bod- dington, 1 Car. & P. 541, it is agreed that the language of the English stat- ute was even somewhat strained to make its construction comport with' "this very just principle, the limita- tion by that enactment taking date from the 'fact committed,' and the court extending the meaning of this term so as to make consequential dam- age an essential part of the fact re- ferred to. "It only remains, therefore, to de- 842 Statutes of Limitation. the plaintiff had been damaged by the cutting away of certain pillars of coal which supported the surface, and which ultimately injured in consequence, it was considered that time commenced to run against the plaintiff on the occurrence of the damage, and not from the date of the removal of the pillars.^* So where termine whether a neglect to serve mesne process, or a false return of such process, is actionable in itself, or whether it becomes so only when a real injury follows from it. No dis- tinction can be drawn between a neglect to serve and a false return in decid- ing the point presented. Lord Den- man, in Wyne v. Birch, 4 Q. B. 566. See Planck v. Anderson, 5 T. E. 37; Barker v. Green, 3 Bing. 317; Brown V. Jarvis, 1 M. & W. 708; Williams v. Moyston, 4 M. & W. 145. If we suppose a direct relation between the plaintiff and the officer — a legal re- ciprocity of right and duty between them, and concede that damages are to be presumed where the former is invaded or the latter violated, it is clear that neither of these incidents occurs until something more than a neglect to attach or an incorrect re- turn is imputable to the officer. The doctrine to which our course of rea- soning has brought us is not novel as a general proposition. Lord Tenter- den, in Lewis v. Morland, 2 B. &. Aid. 64, previous to the decision of Barker V. Green, supra, used this language: ' Supposing the sheriff to be guilty of a breach of duty in letting the party out of custody, it does not thence fol- low that any action can be maintained against him for such breach of duty.' The opinion of Lord Denman, in the case of Eandell v. Wheble, 10 Ad. & El. 719, contains this passage: 'We agree with the case of Brown v. Jarvis, that it is the duty of the sheriff to arrest the party on the first oppor- tunity that he can; but we also agree with the court in that case, that some actual damage must be shown in or- der to make the negligence of the sheriff in that respect a cause of ac- tion.' In a later case, the same judge says : ' When the clear right of a party is invaded in consequence of another's breach of duty, he must be entitled to an action against that party for some amount.' Clifton y. Hooper, 6 Aid. & El. 468." The court held that the statute of limitations took date from the time of the con- sequential injury, and not from the misfeasance or nonfeasance of the of- ficer, and gave judgment for the plain- tiff. See also Roberts v. Read, 16 East 215, and Gillon v. Boddington, 1 C. & P. 541; and see Whitehouae V. Fellowes, 10 C. B. N. S. 765; and Denys v. Shuckburgh, 4 Y. & C. 42. 10. Bonomi v. Backhouse, 5 Jur. 9 H. L. Gas. 503. A cause of action does not arise for so mining coal as to cause, years afterwards, a subsidence of the soil above, until such subsidence occurs, whether it happens by fits and starts, or goes on gradually aiid continuously. See Darnley Main Colliery Co. v. Mitchell, 11 A. C. 127; Crumble t. Wallsend Local Board ( 1891 ) , 1 Q. B. 503. See Hall v. Norfolk (1900), 2 Ch. 493 ; Lewey v. H. C. Frieke Coke Co., 166 Pa. 536, 31 Atl. 261, 28 L. ToETS Quasi e Contractu. 843 the trustees of a turnpike company negligently made and con- tinued in their road improper eatchpits for water, sO that on some occasions the water flowed over and injured the plaintiff's land, it was held that the continuance of the eatchpits aiforded a new cause of action every time such damage was caused, and that the statute only ran on each cause of action from the time it arose.- In an action for maliciously opposing the discharge of an in- solvent debtor, time was considered to run from the date of the opposition, and not from the cessation of imprisonment.^^ But in an action for false imprisonment the statute does not begin to run until the imprisonment ends.-'^ But in an action for malicious prosecution or arrest, the statute begins to run as soon as the process is served or the arrest is made.-^* An important distinction exists between actions arising from R. A. 383, 45 Am. St. Rep. 684; Scranton Gas & Water Co. v. Lacka- wanna Iron & Coal Co., 167 Pa. 136, 31 Atl. 484; 9 Harvard L. Eev. 147. See infra, § 275, n. (o) 11. Whitehouse v. Fellows, 10 C. B. N. S. 765. 12. See Nicklin v. Williams, 10 Ex. 259; Violett v. Sympson, 8 El. & Bl. 344. 13. Dusenbury v. Keiley, 8 Daly (N. Y.) 537. In Eggington v. Lich- field, 1 Jut. N. S. 908, the plaintiff was imprisoned upon an illegal war- rant, and upon an application to court an order was made for his discharge. Previously to the making of the order another warrant had been given to the jailer by the parties who obtained- the first warrant, and the jailer de- tained the plaintiff upon this warrant after the granting of the order. The last was subsequently adjudged illegal. Held, that the imprisonment under the first warrant was terminated by the order, and that the statute of limitations began to run from that period. 14. Pratt V. Page, 18 Wis. 337. In Nicklin v. Williams, supra, Parke, B., referring to the above cases as to consequential damage, said : " It re- mains to consider some cases cited and much relied on, showing that the limitation of actions under parti- cular statutes directed to be brought within a certain time ' from the fact committed,' dated from the period when consequential damage was oc- casioned, and therefore it was said that the damage was the cause of ac- tion. These statutes mean no doubt the limitation to run from the act, that is the cause of action. But on examining these cases they do not appear to be for injuries to rights, which this is, but solely for conse- quential damages, where the original act itself was no wrong and only be- came so by reason of those damages." 844 Statutes or Limitation. torts and upon assumpsit, in that the right to the former cannot be revived by acknov^ledgment.^^ § 179. Negligence. In actions from injuries resulting from the negligence or un- skilfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained.-'^ The gist of the action is the negligence or breach 15. Galligher v. Holingsworth, 3 H. & M. (Md.) 133; Goodwyn v. Good- wyn, 16 Ga. 114. 16. Crawford v. Gaulden, 33 Ga. 173; Wilcox v. Plummer, 29 U. S. (4 Pet.) 173, 7 L. Ed. 821; The Gov- ernor V. Gordon, 15 Ala. 73; Bank of Utica V. Childs, 6 Cow. (N. Y.) 338; Morgan v. Plumb, 9 Wend. (N. Y.) 387; Mardis v. Shackleford, 4 Ala. 493; Brown v. Howard, 2 B. & B. 73; Thurston v. Blackiston, 36 Md. 501. In Bank of Utica v. Childs, 6 Cow. (N. Y.) 338, a notary neglected to charge a prior indorser by giving the requisite notice of non-payment, etc., and the bank was compelled to pay damages. The action in favor of the bank not having been commenced until more than six years after the negligent act was done, was held bar- red by the statute, because its right of action against the notary accrued immediately on the omission, and was not dependent upon the payment of damages by it. In Wilcox v. Plum- mer, supra, where a note was placed in the hands of an attorney for col- lection, and he neglected to join an indorser in the action, and subse- quently he sued the indorser, but, be- cause of a mistake in the process, it finally failed, and the statute having then run as against the indorser, and by reason thereof his liability upon the note ceased, the question being whether the cause of action arose against the attorney when the mis- take was made, or from the time when the damage was finally developed, the court held that it arose and became complete when the mistake was made, and as, dating from that period, the statute had run in his favor, he had judgment in his favor in the action. In Dickinson v. Mayor, etc., 93 N. Y. 584, where the plaintiff's com- plaint alleged that the defendant "im- properly, carelessly, negligently, and unlawfully suffered ice and snow to be and remain upon the crosswalks," at the intersection of two streets in the city of New York; t^at in con- sequence thereof the plaintiff, while passing over said crosswalk, was thrown to the ground and injured, and plaintiff asked to recover the damages sustained, it was held that the action was " to recover damages for a personal injury resulting from negligence " within the meaning of the provision of the Code, limiting the time for the commencement of such action to three years; citing Irvine V. Wood, 51 N. Y. 338; Clifford v. Dam, 81 N. Y. 56; Sexton v. Zett, ToETS Quasi e Conteacttt. 845 of duty, and not the consequent injury resulting therefrom." Eut where a person or corporation is primarily liable for the negligence or misfeasance or malfeasance of another, the statute does not begin to run upon the remedy of such person or cor- poration against the person guilty of such negligence or breach of duty until the liability of such person or corporation has been finally fixed and ascertained ; ^^ because in the latter case, the gist of the action is the damage, while in the former it is the negli- gence or breach of duty. In actions for negligence, the jury are not restricted to damages accrued up to the time of action brought, but may include all which have accrued up to the time when the verdict is rendered, as well as such as are likely to result in the future.^' There seems generally to be no distinction as to the time when the statute applies between actions for mis- feasance or malfeasance and any ordinary action on the case.^" 44 N. Y. 430; Creed v. Hartmann, 29 N. Y. 591; Congreve v. Smith, 18 N. Y. 79; Fisher v. Mayor, etc., 67 N. Y. 76. In Watson v. Forty-second Street F. R. R. Co., 93 N. Y. 522, where the plaintiff was injured by reason of the defendant's negligence in April, 1877, and she commenced this action to recover damages in January, 1880, it was held that the statute of limi- tations was not a bar, as the case was governed by the three years' limi- tation prescribed by the Code, not by the one year's rule previously ex- isting; that the case was not within the exception in the provision of the Code, making the rule of limitations therein prescribed the only one there- after applicable to civil actions, ex- cept where a person was entitled, when the Code took effect, to com- mence an action, and did so within two years thereafter. See Acker v. Acker, 81 N. Y. 143. 17. Thurston v. Blackiston, supra; Gustin V. Jefferson County, 15 Iowa 158; ISTorthrop v. Hill, 57 N. Y. 351, 15 Am. Rep. 501, aff'g 61 Barb. (N. Y.) 136; Lathrop v. Snellbaker, 6 Ohio N. S. 276; Argall v. Kelso, 1 Sandf. (N. Y.) 98; Ellis v. Kelso, 57 Ky. (18 B. Mon.) 296; Sinclair v. Bank, 3 Strobh. (S. C.) 344; Cook v. Rives, 13 S. & M. (Miss.) 328; Battley v. Faulkner, 3 B. & Aid. 288 ; Howell V. Young, 5 B. & C. 259. 18. Veazie v. Penobscot R. Co., 49 Me. 126. 19. Wilcox V. Plummer, supra. 20. Baker v. Atlas Bank, 50 Mass. (9 Mete.) 182; Hinsdale v. Larned, 16 Mass. 65; Mather v. Green, 17 Mass. 60; Fisher v. Pond, 1 Hill (N. Y.) 672. See Robinson v. Moore, 76 Miss. 89, 23 So. 631; Moores v. Winter, 67 Ark. 189, 53 S. W. 1057; Ott v. Great Northern Ry. Co., 70 Minn. 50, 72 N. W. 833. A general provision of stat- 846 Statutes of Limitatioit. But in actions of this class a question may arise as to the exact time when the default arose, and, as a right of action does not exist until default, this question is material. Questions of this character most frequently arise in actions against public ofEcers.*^ Where a statute provides that, unless a claim for damages done by reason of the negligence or wrongful act of a person or cor- poration, is made within a certain time, as, within thirty days, three months, etc., if a claim is made within that time, the action is not barred, if brought before the statute of limitations has rua upon the class of actions to which it belongs.^^ § 180. Nuisances. The rule in reference to acts amounting to a nuisance is, that every continuance is a new nuisance for which a fresh action will lie, so that, although an action for the damage from the original nuisance may be barred, damages are recoverable for the six years preceding the bringing of the action, provided such a period of time has not elapsed that the person maintaining it has ac- quired a presumptive right to do so.^ Thus,^* in an action ute limiting actions on contracts not 779, 72 Am. St. Eep. 308, 319, n.; expressly mentioned, depends upon the infra, § 289 note 3. In actions for per- nature of the action, and not upon sonal injuries resulting in death, limi- its form. Hence it does not apply tation begins to run at the time of to trespass on the case in assumpsit the death and not of the injury. Louis- for negligence causing personal in- ville, Evansville & St. Louis E. Co. juries; and generally, in that form v. Clarke, 153 U. S. 230, M Sup. Ct. of action, when the cause of action 579, 38 L. Ed. 432; Nestelle v. North- is injury to the person, the limitation em Pac. K. Co., 56 Fed. 261 ; Hanna in assumpsit is the same as if the v. Jeffersonville R. Co., 32 Ind. 113. action were ecc delicto in form. See See Epperson v. Hostetter, 95 Ind. Anderson v. Hygeia Hotel Co., 92 Va. 583. 687, 24 S. E. 269; Brimingham v. 21. Supra, § 154. Chesapeake & Ohio Ey. Co., 98 Va. 22. East Tenn. E. Co. v. Bayliss, 74 548, 2 Va. Sup. Ct. Eep. 465, 37 S. E. Ala. 150 . Such actions belong to the I'''. class called at the common law " ac- As to the effect of the statute in tions on the case." Newton v. N. Y. relation to negligence in the examina- & N. E. E. Co., 56 Conn. 31. tion of titles to land, see Brown v. 23. Staple v. Spring, 10 Mass. 72; Sims, 22 Ind. App. 317, 53 N. E. Holmes v. Wilson, 10 Ad. & El. 503; ToHTs Quasi e Conteaotu. 847 brought to recover damages for injuries sustained by rep-son of the erection of a dam, which set back the water of a stream and overflowed the plaintiff's land, it was held that while the plain- tiff was barred from r«;overing damages arising from the erection of the dam, he might recover for its continuance. The same rule was adopted in an English case,^^ where the defendants, as trustees of a turnpike-road, who had erected buttresses to support it, on the plaintiff's land, were held liable for its continuance there, although they had already been sued, and responded in damages for its erection.^^ But while this is the rule as to nui- sances of a transient rather than of a permanent character, yet, when the original nuisance is of a permanent character so that the damage inflicted thereby is of a permanent character, and goes to the entire destruction of the estate affected thereby, or will be likely to continue for an indefinite period, and during its existence deprive the landowner of any beneficial us© of that por- tion of his estate, a recovery not only may but must be had for the entire damage in one action, as the damage is deemed to be original ; ^'' and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the stat- ute of limitations begins to run from the time of its erection against the ovwier of the estate or estates affected thereby.^ Bowyer v. Cook, 5 De G. & S. 236; recover, as the continuance of the McConnell v. Kibbe, 29 111. 483. See original nuisance amounted to a new Silaby Manuf. Co. v. State of New nuisance each day it was continued. York, 104 N. Y. 562, 11 N. E. 264. 27. Troy v. Cheshire R. R. Co., 23 24. Staple v. Spring, supra. N. H. 101; Anon., 4 Dall. (U. S.) 25. Hobnes v. Wilson, 10 Ad. & 147. See also Kansas R. R. Co. v. El. 503. Mihlman, 17 Kan. 224. 26. McConnell v. Kibbe, 29 111. 483. 28. In Powers v. Council Bluffs, In Bowyer v. Clarke, 4 C. B. 236, 45 Iowa, 652 (See Wood on Nuis- the defendant pla/Ced stumps and ances, 889), the plaintiff was the stakes in a ditch on the plaintiff's owner of- certain lota in Council land, and the plaintiff, having recov- Bluffs. In 1859, the lots were ered against him for placing the crossed by a meandering stream stumps and stakes there, brought a called Indian Creek. In order to re- second action for continuing them move the stream from one of the there, and it was held that he could streets of the city, the city deter- 848 Statutes of Limitatioit. § 181. Action must be brought before prescriptive right has been acquired. While, as we have stated, each continuance of a nuisance is treated as a new nuisance, and furnishes a new ground of action which affords a good ground of recovery, although the statute mined to and did cut a ditch along the side of the street and across the end of the plaintiflf's lots. The stream was turned into the ditch. This was done in 1859 and 1860. The ditch was extended to a county ditch, but was not cut as deep as the coun- ty ditch, into three feet; in conse- quence of which, owing to the nature of the soil, a cavity was created at the point where the city ditch fell into the county ditch, which cut back up the stream. It reached the plaintiflf's lots in 1866, when he be- gan to sustain damages from the ac- tion of the water. Prior to the commencement of the action against the city for damages, the ditch had become fifty feet wide and twelve feet deep; and to arrest the action of the water and confine it within its proper channel the plaintiff built a wall, which accomplished the desired result. The statute of limitations being pleaded, the court below di- rected the jury to find a verdict for the defendant, which was sustained upon appeal. Without question- ing the general doctrine announced by the court, that, when the damage is complete by the origi- nal act creating the nuisance, the statute begins to run from that time; yet, in the particular case under the facts stated, we can- not assent to the ruling of the court, that the plaintiff's remedy was full and complete where damage first in- tervened from the defendant's acts. According to the statement of the court, the damages resulted from day to day by the widening of the ditch, until, from a ditch of a few feet in width, it extended to a width of fifty feet, and might, except for the act of the plaintiff by the erec- tion of the wall, have extended in- definitely. To say that the plaintiff was bound to know from the first In- jury to the estate that this result, in the very nature of things, would en- sue, is neither logical nor natural; and it is not within the reason of the case of Troy v. CJheshire E. R. Co., supra, upon which the court relied. In that case the damage was com- plete when the act creating the nuis- ance was completed; but in the Iowa case the damage was progressing from day to day, and could not have been foreseen. A. is the owner of a house, and B. is the owner of a mine und^ it, and, in working the mine, B. leaves insuf- ficient support to the house. The 'house was not damaged until some time after the workings have ceased. Held, that A. could bring an action at any time within six years after the mischief happened, and was not bound to bring it within six years after the work was done which origi- nally led to the mischief. Back- house v. Bonomi, 9 H. L. Cas. 503, 1 El. B. & E. 622. The defendants were the trustees ToETS Quasi e Conteacttj. 849 may Lave run upon former injuries from the same nuisance, yet this proposition only holds good when the action is brought of a turnpike road, and the plaintiff alleged that they so negligently made and maintained certain catchpits for carrying oil the water from the road that large quantities of water ran into his land and collieries, whereby he was greatly damaged. The plain- tiff first complained in July, 1859, and the defendants made some alter- ations; he was again damaged, and complained in December of the same year, and eventually brought this ac- tion. On behalf of the defendants, it was contended that the action was not brought in time, inasmuch as it was not brought within three months after the act complained of was com- mitted, as enacted by sec. 147 of the Turnpike Eoad Act, 3 Geo. IV., c. 126. Held, that the action was in time; as no cause of action arose to the plaintiff so long as the works of the defendants caused him no dam- age, and that the cause of action first accrued when the plaintiff received actual damage. Whitehouse v. Fel- lowes, 9C. B. N. S. 901; Same v. Same, 10 id. 765. See Plumer v. Harper, 3 N. H. 38; Hamer v. Knowles, 6 H. & N. 454. In Polly v. McCall, 37 Ala. SO, an action was brought for injuries resulting to the plaintiff's land from the diversion of the Wa- ter of a brook by means of a ditch and levee, which when first con- structed did not injure the plaintiff's laud, except at times of great floods. Subsequently, the ditch became filled with sand, , and the plaintiff's land was injured by the overflow of water from it. The court held that, as no action could accrue to the plaintiff 54 until his lands were injured from the maintenance of the ditch, the defend- ant could acquire no title by pre- sumption except from that period. We think that is the Iowa case the court failed to make a proper dis- tinction between a wrongful act amounting to a nuisance which of it- self creates a complete and perman- ent injury, and a nuisance, which is permanent, but the injury from which is not only continuous but also constantly increasing. In the former case, there can be no doubt but that the statute would run from the completion of the thing creating the nuisance; but in the latter case successive actions would lie until the nuisance is abated. See Whitehouse V. Fellowes, supra. In Colriek v. Swinburne, 105 N. Y. 503, 12 N. E. 427, it was held that the diversion by the owner of land on which is a spring, of the water of the spring from its natural channel, whereby an owner below is deprived of the use of the water on his premises, is a legal injury for which the party injured is entitled to compensation in damages. Whether the use made by the owner of the spring is a rea- sonable exercise of his right, is a question of fact for a jury. Where the injury complained of was the di- version of the waters of a spring from the plaintiff's tannery, it was held that the diminished rental value during the period of diversion was the proper measure of damages. The general rule is that no private right can be acquired by lapse of time to maintain a public nuisaace 850 Statutes of Limitatioit. before the person erecting or maintaining the nuisance has ac- quired a prescriptive right to do so, by the lapse of such a period as bars an entry upon lands adversely held by another,^' that being the period universally adopted in this country for the ac- or to interfere with the established rights of the government or of the public; but this rule is subject to some exceptions, especially as to rights in the seashore, in fisheries, and in great ponds. See West Rox- bury V. Stoddard, 89 Mass. (7 Al- len), 158; Hittinger v. Eames, 121 Mass. 539; Atty.-Gen. v. Revere Cop" per Co., 152 Mass. 444, 25 N. E. 605, 9 L. R. A. 510; Kellogg v. Thomp- son, 66 N. Y. 88; Kelley v. New York, 27 N. Y. 164; Dyer v. Curtis, 72 Me. 181; Cedar Lake Hotel Co. v. Cedar Lake Hydraulic Co., 79 Wis. 297, 48 N. W. 371; State v. Holman, 104 N. C. 861, 10 S. E. 758; Olive v. State, 86 Ala. 88, 5 So. 653, 4 L. R. A. 33; Williams v. Harter, 121 Cal. 47, 63 Pae. 405. In cases of continuing nuisances or trespasses, usually their continuance, if accompanied by fresh damage to the plaintiff, constitutes a fresh cause of action. See Whitehouse v. Fel- lowes, 10 C. B. N. S. 705, 781 ; Lamb V. Walker, 3 Q. B. D. 389; Peden v. Chicago, etc., Ry. Co., 78 Iowa, 131, 42 N. W. 625, 4 L. R. A. 401; Hemp- sted V. Cargill, 46 Minn. 118, 48 jST. W. 558; Murray v. Scribner, 74 Wis. 602, 43 N. W. 549; Smith v. Sedalia, 152 Mo. 283, 53 S. W. 907, 48 L. R. A. 711; Doran v. Seattle, 24 Wash. 182, 64 Pae. 230, 54 L. R. A. 532, 85 Am. St. Rep. 948. So in actions for flowing land, limitation begins only when actual damage is sustained therefrom, and not when the defend- ant's dam or other cause of the in- jury is erected; and the fact that tha first flowage is already barred does not defeat a suit for such continu- ance of the wrong as occurs within the time limited by the statute. Burleigh v. Lumbert, 34 Me. 322; Vickery v. Providence, 17 R. I. 651; Stanchfield v. Newton, 142 Mass. 110, 7 N. E. 703; Miller v. Keokuk, etc., Ry. Co., 63 Iowa 680, 16 N. W. 567; St. Louis, etc., Ry. Co. v. Biggs (53 Ark. 240), 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174, and n.; Daneri v. Southern Cal. Ry. Co., 122 Cal. 507, 55 Pae. 243; Hocutt v. Wil- mington & W. R. Co., 124 N. C. 314, 32 S. E. 681; Miller v. Hayden, 91 Ky. 215, 15 S. W. 243, 667, 12 Ky. Law Rep. 805; Alabama Gt. So. B. Co. V. Shahan, 116 Ala. 302, 32 S». 509; Chattanooga v. Bowling, 101 Tenn. 343, 47 S. W. 700; Eastman v. St. Anthony Falls Water Power Co., 12 Minn. 137. In North Carolina it is held that the unlawful diversion of water from a stream, though not strictly an easement, is so nearly in the nature of an easement as to require a con- tinuous and adverse use for twenty years in order to raise the presump- tion of a grant, and that such diver- sion is not a " continuing trespass " under the statute requiring actions therefor to be brought within three years. Geer v. Durham Water Co., 127 N. C. 349, 37 S. E. 474. 29. Wood on Nuisances, 717 et seq. ToETS Quasi e Conteacttt. 851 quisition of prescriptive rights.^ It has been doubted, in at least one case,^^ whether a prescriptive right could be acquired to main- tain a nuisance that merely polluted the atmosphere with offensive smells, or smoke and noxious or destructive vapors; but, regard- less of this case, it may be said that according to the authori- ties such a right can be acquired.^^ The burden of establishing, the right by user is upon him who asserts it; and, applying the rules applicable to the acquisition of such rights there are very few cases in which it can be clearly established.^^ § 182. What requisite to establish prescriptive right. The fact that a noxious trade has been exercised for twenty years in a particular locality does not by any means establish a prescriptive right to exercise it there. It is, however, evidence from which, in connection with other proof, the right may be established. But, in order to establish the right as against any party complaining, the burden is imposed upon the defendant. 80. Marr v. Gilliam, 41 Tenn. (1 Cold.) 488; Sibley v. Ellis, 77 Mass. (11 Gray) 417. 31. Campbell v. Seaman, 2 T. & C. (N. Y.) 331, aff'd 63 N. Y. 568, 20 Am. Eep. 567. 32. Duncan v. Earl of Moray, 15 F. C. (Scotch) 303. See Dana v. Valentine, 46 Mass., 5 Met. 8. When a party's right of property is in- vaded he may maintain an action for an invasion of his right, without proof of actual damage. Grant v. Lyman, 45 Mass. (4 Met.) 470, 477; Atkins V. Bordman, 2 id. 457; Boli- var Manuf. Co. v. Neponset Manuf. Co., 33 Mass. (16 Pick,) 247. In Charity v. Riddle, 14 F. C. (Scotch) 303, the defendants had erected or carried on in the suburbs of Glas- gow for more than twenty years an establishment for the manufacture of glue, which emitted nauseous and of- fensive stenches. Upon a hearing upon a petition for an interdict to prevent the defendant from enlarging his works, the court held that, by an unmolested, uninterrupted exercise of his trade there for more than twenty years, the defendant had ac- quired a prescriptive right, as against the plaintiff, to continue it, but that he could not increase the nuisance by increasing the capacity of his works, and prohibited him from enlarging them. Colville v. Middleton, 19 F. C. (Scotch) 339; Miller v. Marshall, 5 Mur. (Scotch) 33; Tipping v. St. Helen Smelting Co., 11 H. L. Cas. 643; Biss v. Hall, 6 Scott, 500; EUiotson v. Feetham, 2 Bing. N. C. 134; Roberts v. Clark, 18 L. T. N. S. 48; Flight v. Thomas, 10 Ad. & El. 590. 33. Bradley's Fish Co. v. Dudley, 37 Conn. 136. 852 Statutes of Limitation, who sets up the right as a defense, of proving that for the period of twenty years he has sent over the premises in question from his works an atmosphere equally as polluted and offensive as that complained of .^* Proof that he has polluted the air is not enough : he must show that for the requisite period he has sent over the land an atmosphere so impure and polluted as to operate as an actual invasion of the rights of those owning the premises af- fected thereby, and in such a maniier that the owner of the prem- ises might have maintained an action thetrefor.^^ Less than that 34. Flight V. Thomas, 10 Ad. & El. 590. 35. Roberts v. Clarke, 18 L. T. N. S. 49; Luther v. Winnissimmet Co., 63 Mass. (9 Cuah.) 171. It is not enough to show that a noxious trade has been exercised in a particular lo- cality for twenty years, and a plea setting up a prescriptive right in that way would be bad, and a verdict for the defendant upon such a plea would be set aside. In Flight v. Thomas, 10 Ad. & El. 590, where the plaintiff brought an action against the defend- ant for sending offensive smells over his premises. Lord Denman, C. J., said : " There is no claim of an ease- ment, unless you make it appear that the offensive smell has been used for twenty years to go over to the plain- tiff's land. The plea may be complete- ly proved without proving that the nuisance ever has passed beyond the limits of the defendant's own land." .Littledale, J., said : " The plea only shows that the defendant has enjoyed as of right, and without interrup- tion for twenty years, the benefit of something that occasioned a smell in his own land." The judgment was reversed and judgment rendered for the plaintiff non obstante veredicto. The right being only to the extent of the use, and it being incumbent upon the defendant to establish the right by proving a use as extensive as that complained of, Ballard v. Dyson, 1 Taunt. 179; Richardson v. Pond, 81 Mass. (15 Gray) 3.87; Atwater v. Bodfish, 77 Mass. (11 Gray) 150; and in addition thereto, to prove that for the requisite period the noxious smells have passed over the plaintiff's premises, to such an extent as to be a nusiance, and actionable as such. Flight V. Thomas, 10 Ad. & El. 590; and the presumption being that he who does an act upon his own prem- ises confines all its ill effects there, the difficulty of establishing a prescrip- tive right in such a case is obvious. Flight V. Thomas, supra. The burden assumed by the plaintiff in such cases is, of showing that during the whole prescriptive period the user has been unlawful. Monks v. Butler, 1 Roll. 83 ; Powell V. Millbank, 2 H. Bl. 851; Branch v. Doane, 17 Conn. 402; Cas- per V. Smith, 9 S. & R. (Pa.) 33; Cooper V. Barber, 3 Taunt. 99; Polly V. McCall, 37 Ala. 20; Murgatroyd v. Robinson, 7 El. & B. 391. The rule is that " a prescription is entire and cannot be split " by either the party setting it up or the party opposing it. In Rogers v. Allen, 1 Camp. 308, the ToETS Qtjasi e Conteagttj. 853 is insufficient. He must also show that his user at the time when the action is brought is not substantially in excess of that which he has exercised during the period requisite to acquire- the right.^^ The right is restricted to and measured by the use.'^ For plaintiff brought an action of tres- pass against the defendant for break- ing and entering a several fishery. The plaintiff alleged in his declara- tion a prescriptive right of fishing over four places in a navigable river. Upon trial, he failed to prove a right in but three; and the court held that when an action is brought to recover for an injury to a prescriptive right, the prescription must be proved as laid, and that if the right is only shown to exist in three of the places named in the declaration, the vari- ance is fatal, and no recovery can be had even though it is also shown that the trespasses were committed in one of the three places over which the right existed. The party does not fail because he shows the right to be more ample than he has laid it, John- son V. Thoroughgood, Hob. 64; Bush- wood V. Bond, Cro. Eliz. 723; but he must prove it to exist to the full extent claimed. Kotheram v. Green, Noy 67 ; Congers v. Jackson, Clay. 19 ; Corbett's Case, 7 Coke 5; Hickman V. Thorny, Freem. 211; Kingsmill v. Bull, 9 East 185; Morewood v. Jones, 4 T. R. 157. The effect of this rule is this: where a person sets up a prescriptive right to do an act with which he is charged in an action on the case, as for the pollution of the atmosphere over the plaintiff's prem- ises, by carrying on a particular trade, he is bound to set up a right to do all that he is charged with doing, in the declaration that forms the basis of an action for damages. He cannot de- fend by setting up a prescriptive right to do less; and if he sets up a prescriptive right to do all that he is charged with doing, his plea fails if he does not show a right as ex- tensive as the one exercised by and charged against him in the declara- tion. Therefore he does not sustain his plea by proof of a right to pollute the air, unless he also shows that he had a right to pollute it to the extent and with the results charged and proved against him. This was held as early as Rotheram v. Green, Noy 67, and has not been materially varied since. The soundness of the doctrine is apparent, and is well sus- tained by authority. Tapling v. Jones, 11 H. L. Cas. 290; Weld v. Hornby, 7 East 195; Bailey v. Appleyard, 3 Nev. & P. 172; Welcome v. Upton, 6 M. & W. 536. 36. Weld V. Hornby, 7 East 195; Topling V. Jones, 11 H. L. Cas. 265; Goldsmith v. Tunbridge Wells Imp. Co., L. R. 1 Eq. 353; Baxendale v. Murray, L. R. 3 Ch. 790; Ball v. Ray, 8 id. 467; Crossly v. Lightowler, L. R. 3 Eq. 279; Stein v. Burden, 24 Ala. 130. 37. Ballard v. Dyson, 1 Taunt. 279 ; Jackson v. Stacey, 1 Holt 455; Cowl- ing V. Higginson, 4 M. & W. 245; Peardon v. Underbill, 16 Q. B. 123; Davies v. Williams, id. 547; Bower V. Hill, 3 Bing. N. C. 339 ; De Rutzen V. Lloyd, 5 Ad. & El. 456; Allan v. Gomme, 11 id. 759 ; Higham v. Rabett, 854 Statutes of Limitatioit. all excess of user an action lies. The enjoyment of a limited right cannot lawfully be enlarged, and any excess of use over that cdvered by the actual user under which the right was gained will be actionable.^* In order to establish a right by prescription, the acts by which it is sought to establish it must operate as an invasion of the par- ticular right which it is sought to quiet, to such an extent that during the whole period of use the party whose estate is sought to be charged with the servitude could have maintained an action therefor. The rule is, that a prescription can only operate against one who is capable of making a grant. Therefore, if the estate was in the possession of a tenant for life,^' or for a term,^" or if the owner of the fee was a minor, ^^ a married woman,*^ or an insane person,*^ no right can be acquired during the term, or while the disability exists. In order to acquire the right, the person owning the estate affected thereby must be in a condition to resist it. But where the adverse use has begun before the owner of the servient estate lets it, the letting of the estate does not prevent the acquisition of the right. He having been in a posi- 5 Bing. N. C. 632; Henning v. Bar- 39. McGregor v. Wait, 76 Mass. (10 nett, 8 Exoh. 187; Brooks v. Curtis, Gray) 73; Barker v. Eichardson, 4 4 Lans. (N. Y. S. C.) 283; Wright v. B. & Aid. 579; Wood v. Veal, 5 B. Moore, 39 Ala. 593; Atwater v. Bod- & Aid. 454; Harper v. Charlesworth, fish, 77 Mass. (11 Gray) 150; Rex- 4 B. & 0. 574. ford V. Marquis, 7 Lans. (N. Y.) 40. Wood v. Veal, supra. In Bright 257; Simpson v. Coe, 4 N. H. 301; v. Walker, 1 C. M. & R. til, it was Horner v. Stillwell, 35 N. J. L. 307; held that the user must be such as Noyesv. Morrill, 108 Mass. 396; Stiles to give a right against all persona V. Hooker, 7 Cow. (N. Y.) 266; having estates in the lands affected Burrell v. Scott, 9 id. 279; Dyer v. thereby. See Winship v. Hudspeth, Dupey, 5 Whart. (Pa.) 584; Rogers 10 Exch. 5, Alderson, B. V. Allen, 1 Camp. 309; Martin v. 41. Watkins v. Peck, 13 N. H. 360; Goble, id. 320; Bealey v. Shaw, 6 Mebane v. Patrick, 46 N. C. (IJones) East 208. 26. 38. Chandler v. Thompson, 3 Camp. 42. McGregor v. Waite, supra. 80; Weld v. Hornby, 7 East 195; 43. Edson v. Munsell, 92 Mass. (18 Tapling v. Jones, 11 H. L. Cas. 390; Allen) 557. Staight V. Burn, L. R. 5 Ch. 163. ToETs Quasi e 'CoNTEACTtr. 855 tion to resist the adverse use, cannot, by voluntarily putting him- self in a position where he cannot resist it, prevent the perfection of the right while the estate is in possession of the tenant.** itfeither does the fact that the premises are in the possession of a tenant prevent the perfection of the right, if the injury is of such a char- acter, and is known to the landlord, that he could maintain an action for an injury to the reversion.*^ It is only as against such rights as operate an injury to the reversion, so that an action can be maintained by the reversioner therefor, that a prescriptive right can be acquired while the prem- ises are in the possession of a tenant; and then, in order to ac- quire the right, the user must be open, and of such a character that the reversioner may fairly be presumed to have knowledge of it, or actual knowledge must be shown. Indeed, the user must be such that it can fairly be said to be with the acqui- escence of the reversioner, and an acquiescence by the tenant does not bind him.*^ The user must also be shown to have been peace- able and uninterrupted, so that it can be said to have been acqui- esced in by the owner of the estate affected by it.*'' The pre- scription begins to run from the time when a legal right is actually invaded by the nuisance, so that the law will imply damage there- from, and must continue for the period requisite under the stat- ute for acquiring a title to land by adverse enjoyment.*^ ' 44. Mebane V. Patrick, s«pra; Cross 77 Mass. (11 Gray) 145; Tracy T. T. Lewis, 3 B. & C. G86; Tracy v. Atherton, 36 Vt. 514; Powell v. Bagg, Atherton, 36 Vt. 503; Tyler v. Wilk- 74 Mass. (8 Gray) 441; Bailey ▼. inson, 4 Mason (U. S.) 403. Appleyard, 3 N. & P. 157. 45. Wallace v. Fletcher, 30 N. H. 48. Pollard v. Barnes, 56 Mass. (3 434; Shadwell v. Hutchinson, 4 C. Gush.) 191; Parks v. Mitchell, 11 &, P. 333; Tucker v. Newman, 11 Ad. Exch. 788. But as to what is such & El. 40. a continuous user as will perfect the 46. Bradbury v. Grinsell, 2 Wm. right, is a question to be determined Saunders 516. from the circumstances of each parti- 47. Bealey v. Shaw, supra; Still- cular case, and is to be determined man v. White Eock Co., 3 W. & M. with reference to the nature and char- (U. S.) 549; Nichols v. Aylor, 7 acter of the right claimed. It is Leigh (Va.) 546; Smith v. Miller, not to be understood that the right 856 Statutes of Limitation. § 183. Trover. The statute begins to run in an action of trover from the time of conversion.^^ Thus, in the Pennsylvania case cited in tlie last note, an action of trover was brought for a United States certifi- must be exercised continuously, in the strict sense of the word, v^ithout cessation or interruption, but that it is to be exercised as continuously and uninterruptedly as the nature of the right claimed requires, in order to satisfy a jury that the right claim- ed is commensurate with the user. Thus, in order to acquire a right across another's land, it is not es- sential that the person asserting the right should have passed over the way every day in the year, or even every month in the year. It is sufBcient if he has used the way as his con- venience and necessity required, and that his user be such as to leave no room to doubt his intention to main- tain his use of the way as of right. Pollard v. Barnes, 56 Mass. {2, Cush.) 191; Bodfish v. Bodfish, 105 Mass. 317; Lowe v. Carpenter, 6 Exch. 630; Parks V. Mitchell, 11 Exch. 788, Hogg v. Gill, 1 McMullan (S. C.) 329; Nash V. Peden, 1 Speers (S. C.) 17. But he must not suflfer unreasonable periods to elapse between his acts of user. Thus it has been held that where a party claiming a right of way over another's land to get the hay from an adjoining lot once each year, the exercise of this right once a year, as of right, will sustain a prescrip- tive right for such a use. Carr v. Foster, 3 Q. B. 581. But such a user would not confer a right of way for any purpose and at any time that the party might see fit to exercise it. The continuity must not be broken, and whether or not it has been de- pends upon the nature of the easement claimed, and non-user in reference thereto. In Coke's Litt. 1136, the doctrine as borrowed from Bracton is laid down as follows: "The pos- session must be long, continuous, and peaceable. Long, that is, during the time required by law; continuous, that is, uninterrupted by any lawful impediment; and peaceable, because if it be contentious, and the opposi- tion be on good grounds, the party will be in the same condition as at the beginning of his enjoyment. There must be long use, without force, with- out secrecy, as of right, and without interruption." Here all the requisite elements to acquire a prescriptive right are concisely stated; and whether or not they exist in a given case is a question of fact to be de- termined by the jury, in view of the right claimed, the manner in which it has been used, and the purpose of its use. The burden of establishing the existence of all these elements, and consequently of establishing the right, is always upon him who asserts it. Pollard v. Barnes, 56 Mass. {Z Cush.) 191; Watt v. Trapp, 2 Rich. (S. C.) 136; Gerenger v. Summers, 24 N. C. (2 Ired.) 229; Winnipiseogee Lake Co. v. Young, 40 N. H. 420, 436. 49. Horsefield v. Cost, Add. (Pa.) 152; Outhouse v. Outhouse, 13 Hun (N. Y.) 130; Montague v. Sandwich, 7 Mod. 99; Fishwick v. Sewall, 4 H. ToBTS Quasi e Conteactu. 857 cate levied upon and sold on an execution, and it was held that the statute began to run from the date of sale. But, if there had been a demand upon the officer for the certificate before the sale, the statute would have run from the time of demand and refusal, because a refusal to deliver up property which the defendant has & J. (Md.) 393. In this view it be- comes important to ascertain what amounts to a conversion; and it may be said that any illegal act of do- minion over the property of another which amounts to the assertion of a title therein, and in defiance of the real owner's title, is a conversion, Beckley v. Howard, 2 Brev. (S. C.) 94; Webber v. Davis, 44 Me. 147; whether th-e person knew of the plain- tiff's title thereto or not, Harris v. Saunders, 3 Strobh. Eq. (S. C.) 370; and even though a person does not claim title in the goods, yet if he exercises dominion over them, as if he threatens to sue the owner if he en- ters upon his premises to take them away, he is chargeable with their conversion. Hare v. Pearson, 26 N. C. (4 Ired.) 76. Where the original taking is wrongful, a right of action accrues immediately without a de- mand, and of course the statute be- gins to run from that time, Farring- ton V. Payne, 15 Johns. (N. Y.) 431; Woodbury v. Long, 25 Mass. (8 Pick.) 543; Davis v. Duncan, 1 McCord (S. C.) 213; nor is a demand necessary where there has been an actual con- version, Durell V. Mosher, 8 Johns. (N. Y.) 445; Tompkins v. Haile, 3 Wend. (N. Y.) 406; Hincs v. Mc- Kinney, 3 Mo. 382; Jewett v. Part- ridge, 12 Me. 243. But when goods are rightfully obtained, and there has been no actual conversion, a demand is necessary before an action can be brought, and in such a case the stat- ute begins to run from the time of demand. Montague v. Sandwich, supra; Thorogood v. Robinson, 6 Q. B. 722; Baldwin v. Cole, 6 Mod. 213. Trover and replevin were early held to be included in the words " actions on the case " in § 3 of the statute of James. Swayn v. Stevens, Cro. Car. 345; 3 Wm. Saund. 395. In this country limitation begins to run as to trover from the time of the con- version, and, in the absence of proof as to the date, it is presumed to have occurred when the property was taken into possession. Parker v. Harden, 121 N. C. 57, 28 S. E. 20. See as to trover under the statute, Struthers v. Peckham, 23 R. I. 8, 45 Atl. 742; Hawkins v. State Loan & Trust Co., 79 Fed. 50; Hine v. Commercial Bank, 119 Mich. 448, 78 N. W. 471; Britt V. Pitts, 111 Ala. 401, 20 So. 484; Morris v. Lowe 97 Tenn. 243, 36 S. W. 1098 ; Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795; Mutual L. Ins. Co. v. Garland, 23 (Tex. Civ. App.) 380, 56 S. W. 551; People V. Kendall, 14 Colo. App. 175, 59 Pac. 409; Fry v. Clow, 3 N. Y. Supp. 393, 50 Hun 574, 20 N. Y. St. Rep. 847; Bowman v. Huffman, 47 N. Y. St. Rep. 487, 30 N. Y. Supp. 415, 23 Civ. Proc. 371. Amendment of the complaint in an action for conversion, by adding a charge of trespass, does not cause the statute of limitations to run to the 858 Statutes of Limitation. no right to keep on demand amounts to a conversion of itself.^ Where an actual conversion is shown to have been made, althotigh not known to the owner, the statute runs from the date of the eon- version, unless the defendant has fraudulently concealed the fact. date of the amendment, if it states the same cause of action, since the al- legation of trespass may be treated as surplusage. Woodham v. Cline, 130 Cal. 497, 63 Pac. 823. The statute applies only to a wrong- ful act done by the defendant himself ; if one person is guilty of a conversion, and afterwards another person is guilty of a conversion of the same thing, the application of the statute to the first of them in no way affects the other. Miller v. Dell (1891), 1 Q. B. 468, 471. 50. Read v. Markle, 3 Johns. (N. Y.) 533; Montague v. Smith, supra. In Compton v. Chandless, 4 Esp. 18, Lord Kenyon said, as to the plea of the statute of limitations, that the inclination of his mind was that the plea was insufficient. That in the case of an action for trover, if the goods are left with another the stat- ute of limitations does not begin to run from the time of delivery; but from the time of demand and re- fusal. According to Lord Holt, the very assuming to one's self the prop- erty and right of disposing of another man's goods is a conversion of them. " And certainly," observes Lord El- lenborpugh, " a man is guilty of a conversion who takes my property by assignment from another, who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into ef- fect?" M'Combie v. Davies, 6 East 540. And if such person acts as agent for another who subsequently, al- though without knowledge that the sale was illegal, adopts it, the latter will also be liable. Hilbery v. Hat- ton, 33 Law J. Exch. 190; Fowler v. Hollins, L. E. 7 Q. B. 616. When the chattels of the plaintiff have been wrongfully taken posses- sion of by the defendant, but have come into his hands in a lawful man- ner, he cannot be made responsible for a conversion of them until they have been demanded of him by the owner or the person entitled to the possession of them, and he has re- fused to deliver them up. Whenever, therefore, the goods of one man have lawfully come into the hands of another, the owner, or person entitled to the possession of them, should go himself, or send some one with a proper authority to demand and re- ceive them; and if the holder of the goods then refuses to deliver them up, or permit them to be removed, there will be evidence of a conver- sion. Thorogood v. Robinson, 6 Q. B. 773; for "whoever," observes Holt, C. J., " takes upon himself to de- tain another man's goods from him without cause, takes upon himself the right of disposing of them," and is guilty of a conversion. Baldwin v. Cole, 6 Mod. 313. The demand and refusal do not in themselves con- stitute the conversion. They are evi- dence of a conversion at some pre- vious period. Wilton v. Oirdlestone, 5 B. & Aid. 847. ToETS Quasi e Oonteaottt. 859 or been guilty of fraud to prevent the owner from obtaining knowl- edge of it within the statutory period.^^ So where the original taking is unlawful, as no demand is necessary, or proof of actual conversion, a right of action accrues from the time of the taking.^' The question as to how far the title to personal property is affected by its retention by a person until the statute has barred an action for its recovery is one of considerable importance; and it may be said that, within the jurisdiction where the statute has run upon the claim, there seems to be no question but that the effect of the statute is to transfer the legal title to the person in posses- sion, so that he may maintain an action even against the former owner for any interference therewith.^^ Thus, where a tenant erects buildings upon leased premises and permits them to remain there for more than six years after his time has expired, the statute of limitations bars all claim for their recovery by him, and transfers the title thereto to the owner of the land.^* But, in order to defeat the title of the true owner to the property, the possession must be adverse, the same rule obtaining in this re- spect as obtains relative to lands ; ^^ but the possession must be 51. Granger v. George, 5 B. & C. any case. Fears v. Sykes, 35 Miss. 149; Johnson v. White, 21 Miss. 584; 633; Clarke v. Reeder, 1 Speera (S. Smith V. Newby, 13 Mo. 159; Short C.) 398; Simons v. Fox, 12 Rich. T. McCarthy, 3 B. & C. 626; Melville (S. C.) L. 392. V. Brown, 15 Mass. 82; Ward v. Du- 52. Davis v. Duncan, 1 McCord (S. laney, 23 Miss. 410; Clarke v. Mar- C.) 213; Woodbury v. Long, 25 Mass. riott, 9 Gill (Md.) 331; Brown v. (8 Pick.) 543. Howard, 2 B. & B. 73; Jordan v. 53. Mercein v. Burton, 17 Tex. 206; Thornton, 7 Ga. 517; Denoh V.Walker, Winburn v. Cochran, 9 Tex. 123 14 Mass. 500; Ashmead v. Kellogg, Cockfield v. Hudson, 1 Brev. (S. C.) 23 Conn. 70. That a fraudulent con- 311 ; McArthur v. Carrie, 32 Ala. 75 ; cealment of the fact of conversion Howell v. Hair, 15 Ala. 194; Bohan- will defeat the operation of the stat- non v. Chapman, 17 Ala. 696; Ewell ute, except from the time when the v. Tedwell, 20 Ark. 136; Vandever facts were or ought to have been dis- v. Vandever, 60 Ky. (3 Met.) 137; covered, has been held in South Caro- Clark v. Slaughter, 34 Miss. 65; Hna and Mississippi, and doubtless Divine v. Bullock, 60 Ky. (3 Met.) would be held in all the States where 418. fraud is regarded as sufficient to sus- 64. Preston v. Briggs, 16 Vt. 124. pend the operation of the statute in 65. Baker v. Chase, 55 N. H. 61. 860 Statutes of Limitatioit. continuous in the person seeking to avail himself thereof, and he cannot tack it to the possession of another, and thus acquire title under the statute.^^ If the property is held as bailee under a contract, or in recognition of the owner's title, the statute does not run against the owner until the person so holding it has done some decisive act evincing a determination to deny the owner's title. Thus, where bonds wer^ pledged to a person as security for a loan, and held by him for several years, it was held that the statute did not begin to run against the owner until he had repaid the loan and demanded the bonds; and then, upon the refusal or neglect of the pledgee to return them, the statute began to run, and not before.^^ In such a case., the owner has his choice of remedies, either in trover for the conversion or in assumpsit for the value, of the property, upon the implied con- tract to return the property on payment of the loan ; consequently, ^.Ithough an action of trover may be barred, a remedy may still remain upon the implied contract.^* § 184. Trespass, Assault, etc. In an action for seizing personal property under an execution against a stranger, the statute begins to run from the date of seiz- ure, and the fact that a claim to the property is interposed and litigated in the same case will not suspend the operation of the stat- ute,^' and in all cases of trespass, either to the person or property, 56. Beadle v. Hunter, 3 Strobh. (S. wards sold them, limitation com- C.) 31; Hobbs v. Ballard, 37 Tenn. mencea to run when the defendant (5 Sneed) 395; Moffatt v. Buchan- acquired possession, and not from the nan, 30 Tenn. (11 Humph.) 369; time of his subsequent sale of the Wells V. Ragland, 31 Tenn. (1 Swan) goods. Harpending v. Meyer, 55 Cal. 501. 555; Kiukead v. Holmes & B. F. Co., 57. Roberts v. Berdell, 61 Barb. (N. 64 Pac. 157, 24 Wash. 216. See Hen- Y.) 37, 52 N. Y. 644; Jones v. Jones, nessey v. Stempel, 52 La. Ann. 449, 18 Ala. 248. 26 So. 1004. If the defendant has in good faith, 58. Kirkmau v. Philips, 54 Tenn. ( 7 and without notice of the plaintiff's Heisk.) 222. rights, received in pledge the latter'a 59. Baker v. Boozer, 58 Ga. 195. goods from his bailee, and has after- ToETS Quasi e Conteactt:. 861 the statute runs from the time it was committed,^" and not from the time when the full extent of the injury was ascertained. This is also the rule as to trespass quare clausum fregit for mesne profits.^^ In equity as well as at law, in the absence of any special circum- stances to the contrary, a trespasser in possession of the estate of another must account for the mesne profits for the whole time he has been in possession, so far as the account is not barred by any express statute. But such circumstances are readily assumed ; and where the defendants have been in justifiable ignorance of plain- tiff's title, the account will usually be taken only from the date of the filing of the bill.^^ In an adverse suit in the nature of an eject- ment bill, the account is directed only from the filing of the bill ; but in a suit against a person in a fiduciary character the account is taken either from the original period, or if the court thinks fit, on account of the plaintiff's laches, for the six years only previ- ous to the filing of the bill.^^ But this is so only in cases where there is " no fraud, no suppression, no infamy." ^* § 185. Criminal convers.ation. An action for crim. con. is treated as an action on the case rather than in the nature of trespass, as the injury is consequential rather than direct, and consequently the life of the remedy depends upon the statutory period provided for actions on the case.^^ Of course the statute begins to run from the time when the offence was committed.^^ GO. Kerns v .Schoonmaker, 4 Ohio 64. Hicka v. Sallitt, 3 De G. M. & 331. G- 783- 61. Hill V. Myers, 46 Pa. 15; Lynch 65. Cook v. Sayer, 2 Wils. 85; San- V. Oox, 23 Pa. 265. born v. Neilson, 5 N. H. 314; Mac- 62. Dormer v. Fortescue, 3 Atk. 124 ; fadzen v. Olivant, 6 Easb 387. Pettiward v. Prescott, 7 Ves. 541; 66. Tidd's Practice, 5. Bowes V. East London Waterworks, 3 In Illinois, where a wife can sue Madd. 375-383; Atty-Gen. v. Exeter, for enticing away her husband, her 2 Euss. 45 ; Clarke v. Yonge, 5 Beav. cause of action is not " for an injury 523. to the person," limited to two years, 63. Per Wood, V. C, in Thomas v. but is one not specially provided for, Thomas, 2 K. & J. 79. and so within the five years' limita- 862 Statutes of Limitation. § 186. Seduction. In an action for seduction, the statute begins to run from the date of the seduction ; but in an action by a parent for the loss of ser- vice resulting from such seduction, the statute does not begin to run until the birth of the child and the mother's recovery there- from,^ or in other words, until the loss of service has accrued. § 187. Failure to perform duty imposed by statute. Where the statute imposes a duty, and specifies a time within which it shall be performed, and gives to certain parties a remedy if it is not performed, the statute begins to nan immediately 'upon the failure to perform within the time specified. Thus, where the statute requires the officers of a corporation to file an annual report in a certain office, on or before a certain day, and pro- vides certain remedies upon a failure to make such report, the statute begins to run immediately upon a failure to perform by the day named.^^ In all such cases, the decisive question is, When did the plaintiff's right of action first accrue? and from that date the statute runs. § 187a. Torts in general — Limitations applicable. The Alabama statute, limiting actions for any injury to the person or rights of another, not arising from contract and not otherwise specially enumerated, to one year, applies to an action for injuries to a lower riparian proprietor for pollution of a water course.^^ An action against a carrier for wrongful ejection of a tion. Bassett v. Bassett, 20 111. App. for the fraud, and is not an action 543, 548. for a penalty given by statute. Ameri- 67. Wilhoit V. Hancock, 68 Ky. (5 can Credit Indemnity Co. v. Ellis, Bush) 567. 156 Ind. 313, 59 N. E. 679. See Louis- 68. Duckworth v. Roach, 8 Daily ville & N. R. Co. v. Pittman, 21 Ky. (N. Y.) 159. Law Rep. 1037, 53 S. W. 1040. The modern action provided by 69. Tutwiler Coal, Coke & Iron Co. statute for indemnity, from the of- v. Nichols, 145 Ala. 666, 39 So. 76S, iicers of a corporation who make 146 Ala,. 364, 119 Am. St. Rep. 34. false reports, is for indemnity only ToETs Quasi e CoiTTEACTtr. 863 passenger by trainmen is not within Kirby's Dig. Ark., § 5065(1), providing that actions for criminal conversation, assault and bat- tery, and false imprisonment shall be commenced within one year after accrual of cause of action, but is within section 5064, pre- scribing a three years' limitation for all actions founded on any contract or liability, expressed or implied, not in writing.'"* An action for conversion is governed by Cal. Code Civ. Proc, § 338, subd. 3, requiring an action for taking, detaining, or injuring any goods or chattels to be brought within three years.''^ In Georgia, an action by a father to recover damages for the seduc- tion of his daughter is barred by the statute of limitations, unless brought within two years from the time the right of action ac- crued.'^ The Kansas tort statute of limitations has no application to an action on quasi contract to recover money paid by mistake.'^ The right of action by a city, sued for injuries in collision with an obstruction in the street, against one responsible for the obstruc- tion, is subject to Ky. St., § 2515, requiring actions for injuries not arising on contract to be commenced within five years.''^ The one-year prescription under La. Civ. Code, art. 3536, for damages from offenses and quasi offenses, applies to damages from the in- 70. St. Louis, etc., Ey. Co. v. My- An employe's action for injuries nott, 83 Ark. 6, 102 S. W. 380. from the master's failure to comply See, as to application of Arkansas with the Factory Act Laws 1903, statute of limitations to other ac- c. 366, Gen. St. 1909, §§ 4676, tions, Cockrill v. Cooper, 86 Fed. 4683), is not barred by Code Civ. 7, 29 C. C. A. 539, rev'g Cockrill v. Proc, § 17, subd. 4 (Gen. St. 1909, Butler, 78 Fed. 679; Emrich v. § 5610), providing that an action Little Rock Traction & Electric Co., upon a statute for a penalty or for- 71 Ark. 71, 70 S. W. 1035. feiture shall be barred within one 71. Allsopp V. Joshua Hendy Mach. year, but is an action for injury to Works, 5 Cal. App. 228, 90 Pac. 39; the rights of another not arising on Lowe V. Ozmun, 137 Cal. 257, 70 Pac. contract, which carries a two-years' 87. limitation. Slater v. Atchison, etc., 72. Hutcherson v. Burden, 113 Ga. Ey. Co., 91 Kan. 226, 137 Pac. 943. 987, 54 L. E. A. 811, 39 S. E. 495. 74. City Of Louisville v. O'Donag- 73. Kansas City v. E. J. & W. M. hue, 157 Ky. 243, 162 S. W. 1110. Boyd Const. Co., 86 Kan. 213, 120 An action against a railroad for Pac. 347. V damages for depreciation in the value 864 Statutes of Limitation. f ringement of some right personal to the individual, or the viola- tion of some duty imposed by lavr.'^ An action for fraud, being an action of tort, is barred by Mass. Eev. Laws 1902, c. 202, §§ 2, 10, after six years, and no better standing can be acquired by bringing a suit in equity.''^ In Missouri, the five-year statute of limitations is applicable to an action by the receiver of a bank against the directors for negligence in managing the bank." In New Jersey, an action for alienating a wife's affections, for entic- ing her away, and for criminal conversation is an action on the case and barred only after six years.'^^ In an action for nuisance, a defense that the cause of action did not accrue within three years is insufficient, under JST. Y. Code Civ. Proc, §^ 382, subd. 3.^' In Oregon, an action by plaintiff for interfering with his rights, of the use of plaintiff's residence, as well as for personal inconvenience by reason of unwholesome odors from a stagnant pool maintained by the road along its right of way, must be brought within five years. Cum- berland E. Co. V. Bays, 153 Ky. 159, 154 S. W. 929. 75. Sims V. New Orleans Ey. & Light Co., 134 La. 897, 64 So. 833. For actions barred by the prescrip- tion of one year, see: J. A. Bel Lumber Co. v. Stout, 134 La. 987, 64 So. 881, action for recovery of logs, or for damages; Thomas v. Whitting- ton, 127 La. 551, 53 So. 860, action for fraud of a notary public in caus- ing one to sign a deed; Goodwin v'. Bodcaw Lumber Co., 109 La. 1050, 34 So. 74; Levert v. Sharpe, 53 La. Ann. 599, a claim for punitive damages for trespass; Dobbins v. Lyons, Man. Unrep. Cas. 215. For actions not barred by the pre- scription of one year, see: Gordon V. Stanley, 108 La. 183, 33 So. 531, action for breach of official bond; Vaudry v. New Orleans Cotton Ex- change, 3 McGloin 154; Fairex v. New Orleans City E. Co., 36 La. Ann. 60, action to recover from a corpora- tion dividends wrongfully paid; Loeb V. Decuir, Man. Unrep. Cas. 403, ac- tion to enforce a lease; Illinois Cent. E. Co. v. S. Segari & Co., 305 Fed. 998. The plea of three years' prescrip- tion applies only to cases arising from contract, but the plea of one year prescription is the proper one to be applied in actions for torts. Standard Chemical Co. v. Illinois Cent. E. Co., 130 La. 148, 57 So. 783. 76. Marvel v. Cobb, 300 Mass. 393, 86 N. E. 360. 77. Stone v. Eottman, 183- Mo. 553, 83 S. W. 76. 78. Crane v. Ketcham, 83 N. J. 337, 84 Atl. 1053, and is not an action for " injury to the person," barred af- ter two years under Statute of Limi- tations, § 3, as amended in 1896 (3 Comp. St. 1910, p. 3164). 79. McClusky v. Wile, 70 Misc. Eep. 135, 138 N. Y. Supp. 190, judg. rev'd 139 N. Y. Supp. 455. ToETS Quasi e Conteactu. 865 under an agreement made with defendant to settle and establish the respective rights of the parties to the water and ditches therein mentioned, in that defendant entered upon the ditch upon his own land and diverted water so that it failed to reach the lands of the plaintiff, but did not enter upon the plaintiff's land, is an action on the case, and is barred in two years.*" An action against a judgment creditor for directing the levy and sale under execution of exempt personal property is within Utah Comp. Laws 1907, § 2877, providing that an action for taking personalty must be com- menced within three years.*^ An action by the creditor of a cor- poration against the purchaser of its assets based on the conversion of the property is barred by the Texas two-year statute of limita- tions.^ Where a city misappropriated moneys belonging to a special fund, a mandamus brought by the holder of a warrant drawn on such fund to compel its payment is barred in three years under the Washington statute of limitations.^ § 187b. Injuries to the person. The Connecticut Eevision of 1902 (Gen. St. 1902, § 1119), which provides that no action against a municipal or other corpora- tion for injury to the person shall be brought but within one year from the date of the injury, applies to actions against any corpora- tion, public or private, for an injury to the person.** Whether an ac- Where an action for the conversion 8, and is not an action on the con- of bonds was brought within six tract or for trespass, which are bar- years after their conversion, and with- red in six years by L. O. L., § 6, in two years and seven months after subd. 1. plaintiff's discovery of the conversion, 81. Snow v. West, 35 Utah 206, 99 the six-year limitation was not a de- Pac. 674. fense. MacDonnell v. Buffalo Loan, 82. Clevenger v. Galloway & Garri- Trust & Safe Deposit Co., 193 N. Y. son (Tex. Civ. App.), 104 S. W. 914. 92, 85 N. E. 801, aff'g judg. Medina 83. Quaker City JSTat. Bank v. City Gas & Electric Light Co. v. Buffalo of Tacoma, 27 Wash. 259, 67 Pac. Loan, Trust & Safe Deposit Co., 119 710, under Ballinger's Ann. Code & App. Div. 245, 104 N. Y. Supp. 625. St. Wash., § 4800, subd. 2. 80. Dalton v. Kelsey, 58 Or. 244, 84. Fitzgerald v. Scovil Mfg. Co. 77 114 Pac. 464, under Or. L. O. L., § Conn. 528, 60 Atl. 133. 55 866 Statutes of Limitation. tion against a carrier for a personal injury is in form ex contraciu or ex delicto, it is governed by Cal. Code Civ. Proc, § 340, subd. 3, relating to limitation on actions for personal injuries.*^ An action by a husband for damages for loss of the services of his wife occasioned by her personal injuries is barred by the two-year limi- tation fixed by Burns' Ann. St., Ind. 1908, § 295.^^ In Georgia, an action for injuries to the person must be brought within two years after the cause of action accrues.*^ In Illinois, an action over by an employer against an amploye on a judgment for dam- ages for injuries caused by the employe's negligence need not be brought within two years, the time limited for bringing actions for personal injuries.^* The one-year limitation prescribed in Ky. St., § 2516, and not that in section 2515, applies to an action by a widow, under section 4, to recover damages for the wanton shooting of her husband.*^ In 'Sew Jersey, the two-year limita- tion applies to actions for personal injuries caused outside the state.*" In Florida, an action against a physician for damages An action to recover for injuries to the limitation of actions. Donk caused by negligence is barred when Bros. Coal & Coke Co. v. Sapp, 133 not brought within one year by Gen. 111. App. 92. St. 1902, § 1119, as amended by Laws 89. Irwin v. Smith, 150 Ky. 147, 1893, c. 149. Sharkey v. Skilton, 83 150 S. W. 22. Conn. 503, 77 Atl. 950. The damages for failure to deliver 85. Easier v. Sacramento Electric, a telegram, or delay in delivering it. Gas & Ey. Co., 166 Cal. 33, 134 Pac. are not "injuries to the person," 993. within the meaning of Ky. St. 1903, 86. Mullen v. Town of New Castle, § 2515, prescribing limitatione of one 180 Ind. 386, 103 N. E. 1. year in actions against corporations 87. Brown v. Emerson Brick Co., 15 for injuries to the person. Western Ga. App. 332, 83 S. E. 160, under Civ. Union Telegraph Co. v. Witt, 33 Ky. Code Ga. 1910, § 4497. Law Kep. 685, 110 S. W. 889. 88. Sherman House Hotel Co. v. 90. Mooney v. Camden Iron Works, Butler Street Foundry & Iron Co., 168 83 N. J. Sup. 32, 83 Atl. 770, supple- Ill. App. 549. ment of March 24, 1896, to the statute The right of action given by the of limitations (P. L. p. 119). mines and miners act to the widow. This applies only to actions for per- etc, of a person killed through the sonal injuries, and hence not to an willful violation of such act, is gov- action to recover for injury to a ves- erned by the general law in regard sel caused by a negligent collision^ ToKTS Quasi e Conteactit. 867 3r negligent treatment causing injury is a cause of action upon Q obligation or liability not founded upon an instrument in writ- ig, and is barred in three years.'-^ Tbe limitation prescribed by tatute in Kansas in actions for trespass to person is one year.'' a Louisiana, actions for damages for personal injuries resulting rom offenses or quasi offenses are prescribed by one year.'' In [ebraska, a civil action for assault and battery with circum- tances of aggravation must be begun within one year.'* In Michi- an, an action for seduction is an action for personal injuries, arred in three years.'^ The complaint against a street surface ailroad for personal injury from a hole in the part of a street rhich, by Eaiload Law (Consol. Laws, e. 49), § 178, it is required > keep in a good and safe condition, alleging the injury was due 3 defendant " suffering " said hole to be and remain, states a ause of action for negligence, vpithin the three-year limitation rescribed by ~S. Y. Code Civ. Proc, § 383 ; though, if the railroad reated the hole, it would be liable for the injury as the creator of nuisance, and the six-year limitation of section 382 would apply.'^ Ln action against a city for injuries to an employe is governed by be six-year limitation prescribed by Minn. Kev. Laws 1905, § 076, subd. 5, and not by the two-year limitations prescribed by action 4078, subd. 1.'^ In Maryland, an action for personal in- lailey v. Kieman, 75 N. J. Law, 275, 94. Borchert v. Bash, 97 Neb. 593, 7 Atl. 1037. 150 N. W. 830, under Neb. Civ. Code, 91. Palmer v. Jackson, 62 Fla. 249, § 13. 7 So. 240, under Fla. Gen. St. 1906, 95. May v. Wilson, 17 Detroit Leg. 1725, subd. 5. N. 1023, 128 N. W. 1084, under Pub. 92. Smith v. Cline, 3 Kan. 506, un- Acta 1899, No. 155, a " personal " er Code of 1858. wrong or injury being an invasion of 93. Warner v. New Orleans & C. personal right and pertaining to the ,. Co., 104 La. 536, 29 So. 226. person. A street car passenger's action for 96. Hayes v. Brooklyn Heights K. ijuries while she was attempting to Co., 200 N. Y. 183, 93 N. E. 469, light is barred by prescription under rev'g judg. 134 App. Div. 912, 118 N. iv. Code, art. 3536, when not brought Y. Supp. 810. ithin one year. Sims v. New Or- 97. Quackenbush v. Village of Slay- ans Ry. & Light Co., 134 La. 897, 64 ton, 120 Minn. 373, 139 N. W. 716. 0. 823. Section 5138, Gen. St. 1894, subsec. 868 Statutes of Limitation. juries resulting from negligence merely is not within the one-year statute of limitation.'^ In Ohio, an action for injuries resulting from malpractice must be brought within one year.'' In an action for malicious prosecution, the six-year limitation under the Penn- sylvania Act of 1713 (1 Smith's Laws, p. 76), which provides that actions on the case other than for slander shall be commenced within six years, governs.^ In Rhode Island, whatever the form, actions for personal injuries, whether by breach of contract or duty, such as malpractice, or by force, must be brought within two years.^ 1, as amended by Laws 1895, c. 30, providing that the following actions may be brought within two years: "Libel, slander, assault, battery, false imprisonment, or other tort resulting in personal injury," — 'includes an ac- tion for malicious prosecution. Bry- ant V. American Surety Co., 69 Minn. 30, 71 N. W. 826. " Personal injury " actions, the re- sult of negligence, are not within Gen. St. 1878, c. 66, § 8, aubd. 1, making two years the limit for the action for battery, nor are they with- in the rule of ejusdem generis, as ap- plied to an action for battery. Ott V. Great Northern Ry. Co., 70 Minn. 50, 73 N. W. 833. 98. Baltimore City Passenger Ry. Co. V. Tanner, 90 Md. 315, 45 Atl. 188, under Md. Code Pub. Gen. Laws, art. 57, § 1, prescribing a one-year limitation for actions " of assault, battery, and wounding, ot any of them." 99. Tucker v. Gillette, 13 0. C. D. 401, 32 Ohio Cir. Ct R. 664, under Rev. St., § 4983, prescribing limi- tations of one year for an action of libel, slander, and malpractice. See also Shuman v. Drayton, 8 0. C. T). 13, 14 Ohio Cir. Ct. R. 338. 1. Boyd V. Snyder, ^07 Pa. 330, 56 Atl. 924, Act June 34, 1895 (P. L. 236), applying only to injuries to the person not resulting in death, and not to a suit for malicious pro- secution. And see Rodenbaugh v. Philadelphia Traction Co., 190 Pa. 358, 43 Atl. 953, 34 Wkly. Notes Caa. 105. 2. Griffin v. Woodhead, 30 R. I. 204, 74 Atl. 417, the period allowed by Court and Practice Act 1905, § 348 ; such actions being excepted from §§ 249 and 350, relating to actions of trespass, case, and debt on contract. As to actions for personal injuries in other jurisdictions, see: Term. — Blackwell v. Merofhis St. Ry. Co., 134 Tenn. 516, 137 S. W. 486, one year limitation prescribed by Code 1858, § 3773 (Shannan's Code, § 4469). Tem. — Texas Cent. R. Co. v. Haw- kins (Tex. Civ. App.), 163 S. W. 133, two-year limitation; Kelly v. West- ern Union Tel. Co., 17 Tex. Civ. App. 344, 43 S. W. 533, one year in action for injuries resulting from non-de- livery of a telegram. Va. — Birmingham v. Chesapeake & 0. Ry. Co., 98 Va. 548, 37 S. E. 17, 3 Va. Sup. Ct. Rep. 465, one year, i» ToETs Quasi e Contractu. 869 § 187c. Injuries to property. In Alabama, an action by a riparian proprietor for pollution of a water course is within the statute of limitations of one year.^ In Arkansas, the three years limitations applies to an action for injury to land by the obstruction by a railroad right of way em- bankment of the surface water so as to divert it upon the land.* In Connecticut, an action by a tenant against his landlord for damages to a stock of merchandise from the collapse and fall of the leased building because of defendant's alleged negligence is an action " for an injury to personal property." ^ In California, a discharge of sewage so as to render impassable the street in front of premises of others, and so as to wash away the soil of such premises, is not a trespass, subject to the limitation of three years.^ In Colorado, an action for the wrongful conversion of money is not action for trespass on the case in assumpsit to recover damages for per- sonal injuries resulting from negli- gence, as the limitation is determined by the object of the action, and not by its form. W. Ta. — Curry v. Town of Man- nington, 23 W. Va. 14, one year; Kuhn V. Brownfield, 34 W. Va. 253, 12 S. E. 519, 11 L. E. A. 700, one year, in action for malpractice. Wis. — Donner v. Graap, 134 Wis. 523, 115 N. W. 125, one year, under St. 1898, § 4222, subd. 5, in an action to recover for injuries sustained by being accidentally struck with a beer glass. 3. Tutwiler Coal, Coke & Iron Co. V. Nichols, 145 Ala. 666, 39 So. 762, 146 Ala. 364, 119 Am. St. Kep. 34; Parsons v. Tennessee Coal, Iron & R. Co., 186 Ala. 84, 64 So. 591. See Western Ey. of Alabama v. Hart, 160 Ala. 599, 49 So. 371, as to action against a carrier as a warehouse- man. 4. Kelly v. Kansas City Southern Ey. Co., 92 Ark. 465, 123 S. W. 664, under Kirby's Dig., § 5064. 5. Miner, Read &, Garrette v. Mc- Namara, 82 Conn. 578, 74 Atl. 933, within Gen. St. 1902, § 1119, as amended by Laws 1903, p. 114, c. 149, barring such action in one year. An action by a riparian owner against a city for pollution of a water course by the discharge of sewage is within the six-year limitation for ac- tions founded on a tort unaccom- panied by force. Piatt Bros. & Co. v. City of Waterbury, 80 Conn. 179, 67 Atl. 508. 6. Crim v. City & County of San Francisco, 152 Cal. 279, 92 Pac. 640, under Code Civ. Proc, § 338, subd. 2. An action for conversion is within Code Civ. Proc, § 338. Lowe v. Oz- mun, 137 Cal. 257, 70 Pac. 87. An action by the owner of a lot to abate an obstruction of the street opposite his lot is not barred by § 318, Code Civ. Proc. within five years. McLean V. Llewellyn Iron Works, 3 Cal. App. 870 Statutes of Limitation. one for relief against fraud, to be commenced within three years, but may be commenced within six years.'' An action to recover damages to land which was washed away by reason of structures built in a river by defendant is one for a " trespass." * In Georgia, a suit to recover damages to realty must be brought within four years.' In Illinois, the five-year period applies as to real property damaged, but not actually taken by a company having the right of eminent domain.-*^" In Iowa, where a landowner, claiming the right to repel surface water coming from an adjacent tract, erects a barrier on the partition line and maintains the same with the knowledge, or express or implied consent, of the owner of the ad- jacent tract for ten years, the right of the latter to an injunction against the maintenance of the obstruction is barred.-^^ An action for trespass through the permanent obstruction of the channel of a stream so as to divert its natural flow against the opposite bank, and thereby destroy a portion of plaintiff's land, is barred by the Kansas two-year statute of limitations.^^ In Kentucky, an action for the wrongful diversion of a natural stream across lands is barred by a period of five years.-*^^ In Louisiana, a claim for dam- 346, 83 Pac. 1082, rehearing denied 11. Thiessen v. Clauasen, 135 Iowa 2 Cal. App. 346, 83 Pao. 1085. See 187, 113 N. W.-545. also Scrivner v. Woodward, 139 Cal. 12. Taylor v. Newman, 91 Kan. 834, 314, 73 Pac. 863, as to action for 139 Pac. 369. conversion of bonds. An action for wrongfully recording 7. Colorado Fuel & Iron Co. v. an instrument conveying lands is Chappell, 12 Colo. App. 385, 55 Pac. within the two-year limitation. ' Hat- 606. field V. Malin, 6 Ka. App. 855, 50 Pac. 8. Cartwright v. Southern Pac. Co., 108. Where the complaint alleges the 206 Fed. 234 (U. S. D. C). conversion of personalty in 1903, the 9. Adams v. Macon, D. & S. R. Co., action therefor in 1910 is barred, 141 Ga. 701, 81 S. E. 1110, under Civ. though there is a prayer for an ac- Code 1910, § 4495. See also Taylor counting. Blackwell v. Blackwell, 88 V. James, 109 Ga. 327, 34 S. E. 674; Kan. 495, 129 Pac. 173. Burns v. Horkan, 126 Ga. 161, 54 S. 13. Chicago, etc., R. Co. v. Hoover, E. 946; Crawford v. Crawford, 134 147 Ky. 33, 143 S. W. 770; Moore Ga. 114, 67 S. E. 673. v. Lawrence County, 143 Ky. 448, 136 10. Bell V. Mattoon Waterworks & S. W. 1031; King v. Board of Council Reservoir Co., 163 111. App. 615. of City of Danville, 32 Ky. Law Rep. Torts Quasi e Coxteactu. 871 ages for unauthorized establishment of a right of way by a rail- road company is barred by the ten-year statute of limitations." In North Carolina, the unlawful diversion of water in a stream is not a trespass on realty, within Code, § 155, as amended by Laws 1895, c. 165, requiring actions for a continuing trespass to be brought within three years, but is an action for permanent damages within the five-year statute.-'^ In Missouri, the injury for pollut- ing a stream by the construction of a sewer entering into the stream is permanent, and an action therefor is barred in ten years.^^ In Ohio, an action against a street railway company for injury to a city pavement, requiring repairs by the paving contractor under its contract with the city, is barred in four years.^^ The New Jersey statute of limitations of six years does not apply to recovery of 1188, 107 S. W. 1189. See, as to other limitations, Kichardson v. Louisville * N. K. Co., 33 Ky. Law Eep. 916, 111 S. W. 343, rehearing denied 112 S. W. 583; City of Louisville v. Seibert, 21 Ky. Law Eep. 328, 51 S. W. 310. 14. Brewer v. Yazoo & M. V. E. Co., 128 La. 544, 54 So. 987; McCutchen T. Texas & P. Ky. Co., 118 La. 436, 42 So. 42. Action for damages for alleged tak- ing of right of way in street is an action ex delicto, barred by prescrip- tion of one year. Standard Chemical Co. V. Illinois Cent. K. Co., 130 La. 148, 57 So. 783. One year also bars fin action by a co-owner of lands against the owner in possession for damages for cutting timber. Davis T. Ruddock Orleans Cypress Co., 132 La. 985, 62 So. 114. See also Gil- more V. Schenck, 115 La. 386, 39 So. 40; Shields v. Whitlock & Brown, 110 La. 714, 34 So. 747. 15. Owenby v. Louisville & N. R. Co., 165 N. C. 641, 81 S. E. 997; Gear V. Durham Water Co., 127 N. C. 349, 37 S. E. 474; Roberts v. Baldwin, 151 N. C. 407, 66 S. E. 346. 16. Luckey v. City of Brookfield, 167 Mo. App. 161, 151 S. W. 201. An action for the building of solid railway embankments causing a per- manent backing up of surface water is barred in sixteen years. Gorman V. Chicago, B. & Q. R. Co., 166 Mo. App. 330, 148 S. W. 1009. 17. Barber Asphalt Paving Co. v. Northern Ohio Traction & Light Co., 202 Fed. 817, 121 C. C. A. 125, under Gen. Code Ohio, § 11224, barring torts. If an action is on "a liability created by sttute other than a for- feiture or penalty," for which Gen. Code Ohio, § 11332, provides a six- year limitation, it is controlled by such section. Hocking Valley R. Co. V. Ne^v York Coal Co., 317 Fed. 727. See City of Norwalk v. Blatz, 39 Ohio Cir. Ct. E. 306, action for flood- ing of land, four years. 872 Statutes of Limitatioit. award in condemnation proceedings or interest thereon.^* In Texas, in trespass to try title to land wrongfully appropriated by a railroad company for its right of way, action is barred by the two-years statute.^^ An unlawful change in the grade of a street is not a taking of the property of an adjoining owner or a con- tinuing nuisance, and a right of action to recover for damages thereby occasioned accrues at completion of the change and is barred within six years by New York Code Civ. Proc, §§ 381, 382.^" In Tennessee, an action in assumpsit for the value of standing timber wrongfully cut and removed is barred in six years.^^ An action of trespass, in Idaho, is limited to three years.^ In Pennsylvania, the reversioner under a 999-year lease can recover for coal unlawfully mined and converted only as to coal taken 18. Watson v. Jersey City, 84 N. J. 433, 86 Atl. 403. 19. Southern Kansas Ry. Co. of Texas v. Vance (Tex. Civ. App.), 155 S. W. 696. See also Chicago, etc., Ey. Co. V. Johnson (Tex. Civ. App.), 156 S. W. 353. An action against a carrier for nondelivery of goods without sufficient excuse, or for in- juries to freight, is barred in two years. Missouri, K. & T. Ey. Co. v. Harris (Tex. Civ. App.), 138 S. W. 1085; R. W. Williamson & Co. v. Texas & P. Ey. Co. (Tex. Civ. App.), 138 S. W. 807. An action for cut- ting timber on land belonging to in- tervenors is barred in two years. Kir- by V. Hayden (Tex. Civ. App.), 99 S. W. 746. Likewise an action for damages to property caused by the construction of an embankment and switch track. Houston & T. C. R. Co. V. Barr (Tex. Civ. App.), 99 S. W. 437. See Davies v. Texas Cent. E. Co. (Tex. Civ. App.), 133 S. W. 295, as to what acts the word "tres- pass" includes. An action for con- version must be brought within two years. Texa.rkana Water Co. t. Kizer (Tex. Civ. App.), 63 S. W. 913; Galveston, etc., Ry. Co. v. dem- ons, 19 Tex. Civ. App. 452, 47 S. W. 731. In West Virginia, the period of limitation for unlawful conversion of personal property, or its proceeds, is five years. Thompson v. Whitaker Iron Co., 41 W. Va. 574, 23 S. E. 795. 20. Kehrea v. City of New York, 147 N. Y. Supp. 825. Action to compel the removal of structures in a street appurtenant to abutting property, which were un- lawful and constituted an interfer- ference with relator's easement as lessee of adjoining property, is bar- red in twenty years. People v. Ahearn, 124 App. Div. 840, 109 If. Y. Supp. 249. 21. Whitaker v. Poston, 120 Tenn. 307, 110 S. W. 1019. 22. Hill V. Empire State-Idaho Mining & Developing Co., 158 Fed. 881 (U. S. C. C, Idaho). ToETS Quasi e Conteacttt. 873 -within six years before bringing the action.^* In Oklahoma, an ac- tion for wrongfully killing cattle must be brought within two years.^* In Maine, the right of action for trespass is barred in six years.^^ An action to recover damages for unauthorized regis- try of land in Porto Rico is barred in one year.^^ " Trespass on real property," as used in the Washington Code, does not apply to an action involving mere consequential injuries resulting from the raising of a street grade.^ S3. Trustees of Proprietors of Kingston v. Lehigh Valley Coal Co., 241 Pa. 469, 88 Atl. 763, unless the injury was not discovered until with- in the six-year period. An action against the city for damages from the giving of an er- roneous street grade is barred in six years. Moore v. City of Lancaster, (Pa.) 58 Atl. 890. 24. Missouri, K. & T. Ey. Co. v. Wilcox (Okl.), 121 Pac. 656, under Oomp. Laws 1909, § 5550, subd. 3. 25. Rollins v. Blackden, 112 Me. 459, 92 Atl. 521. 26. People of Porto Rico v. Em- manual, 35 Sup. Ct. 33, under Porto Rico Civil Code 1902, § 1869. 27. Denney v. City of Everett, 46 Wash. 342, 89 Pac. 934, under Ball- inger's Ann. Codes & St., § 4800, Bubd. 1. Action for taking or injuring prop- erty without compensation. ilrfc.— Memphis & L. R. R. Co. v. Organ, 67 Ark. 84, 55 S. W. 953. (Ml. — ^Robinson v. Southern Cali- fornia Ry. Co., 129 Cal. 8, 61 Pac. 947. III. — ^Dickson v. Epling, 170 111. 329, 48 N. E. 1001, rev'g judg. 61 111. App. 78. Ind. — Southern Indiana Ry. Co. v. Brown, 30 Ind. App. 684, 66 N. E. 915. K}/.' — Rowlstone V. Chesapeake & O. Ry. Co., 21 Ky. Law Rep. 1507, 54 S. W. 2; Trustees Common School Dist. No. 14 V. Nashville, etc., R. Co., 23 Ky. Law Rep. 343, 56 S. W. 990; Ferguson v. Civington, etc.. Bridge Co., 108 Ky. 662, 24 Ky. Law Rep. 1183, 1333, 71 S. W. 6; Klosterman V. Chesapeake & 0. Ry. Co., 114 Ky. 426, 34 Ky. Law Rep. 1183, 1233, 71 S. W. 6. N. C. — Cherry v. Lake Drummond Canal & Water Co., 140 N. C. 423, 53 S. E. 138, 111 Am. St. Rep. 850. Ohio. — Fries v. Wheeling & L. E. Ry. Co., 56 Ohio St. 135, 46 N. E. 516. S. D. — Johnson v. Hawthorne Ditch Co., 32 S. D. 499, 143 N. W. 959; Faulk v. Missouri River & N. W. Ry. Co., 28 S. D. 1, 133 N. W. 233. Tear.— Galveston & W. Ry. Co. v. Kinkead (Tex. Civ. App.), 60 S. W. 468; Tietze v. International & G. N. R. Co., 35 Tex. Civ. App. 136, 80 S. W. 124. Overflowing land. Cai.— Hicks v. Drew, 117 Cal. 305, 49 Pac. 189. Ky. — Leezer v. City of Louisville, 7 Ky. Law Rep. (abstract) 839. 2V. C— Ridley v. Seaboard & R. R. Co., 134 N. C. 34, 33 S. E. 335. 874: Statutes of Limitatioh". § 187d(l). Torts in general — Accrual of right of action. A right of action for tort accrues immediately upon the infliction of the injury.^* Where an injury is complete at the time of the act causing it, limitations run from that time.^' For the purpose of computing the running of limitations on an action to restrain the maintenance and operation of an elevated railroad in front of premises, the cause of action accrued when the road was completed and operations begun.^" The statute of limitations begins to run as against a cause of action sounding in tort of which fraud is the basis as soon as the fraud and consequent injury have occurred, and not when the fraud is discovered, unless there has been a fraudulent concealment of the cause of action.^^ The cause of actiort by the 28. Brown v. Emerson Brick Co., 15 Ga. App. 332, 83 S. E. 160; Ra- leigh & G. R. Co. V. Western & A. R. Co., 6 Ga. App. 616, 55 S. E. 586. Where the commission of a ■wrong is E.ttended immediately by re- sulting damage, the date at which the damage commenced is the point of the running of the prescription. Griffin v. Drainage Com. of New Or- leans, 110 La. 840, 34 So. 799. 29. Lyman v. Holmes (Vt.), 92 Atl. 829. An action for damages for abuse of legal process may be maintained before the action in which such pro- cess is used is terminated, and there- fore the statute begins to run from the time the acts complained of were committed. Montague v. Cummings, 119 Ga. 139, 45 S. E. 979. 30. Goggin V. Manhattan Ry. Co., 104 N. Y. Supp. 548, 54 Misc. Rep. 472. Where a railroad erected a water tank on its right of way, and such erection and use amounted to a nuis- ance to the occupant of a neighbor- ing dwelling, limitations did not be- gin to run against an action by him for damages until the tank was built and operated. Texas & Pac. Ry. Co. V. Edrington, 100 Tex. 496, 101 S. W. 441, 9 L. R. A. (N. S.) 988. 31. Nelson v. Petterson, 131 111. App. 443, judg. aff'd 229 111. 240, 82 N. E. 229. Where defendants fraudulently represented to plaintiff the value of certain shares of stock which they put up to secure the discount of notes, under an agreement that, " if said notes are not paid when due, then, in that event," the collateral might be sold, a cause of action for the fraud accrued so as to set limi- tations running at the time of the discount of the notes and the ac- ceptance of the stock in reliance on such representation. First Nat. Bank V. Steel, 146 Mich. 308, 13 Detroit Leg. N. 762, 109 N. W. 423. Limitations run against a cause of action for deceit by which stock subscription was induced from the date of the subscription, though part of the price was not paid until later. Ball V. Gerard, 160 App. Div. 619, ToETS Quasi e Contractu. 875 creditor of a corporation against the purchaser of its assets based on the conversion of the property arises on the day of the pur- chase, and limitations run from that date, though corporate prop- erty remains in the hands of a stockholder.^^ § 187d(2). Negligence. In actions for injuries resulting from the negligence of another, the statute begins to run from the time the injury was inflicted, and not from the time when the full extent of the damages sustained has been ascertained.^^ In an action for injuries claimed to be caused 146 N. Y. Supp. 81. See also Reus- ens V. Gerard, 160 App. Div. 625, 146 N. Y. Supp. 86. The right of minority stockholders of a corporation to compel defendant controlling it, to satisfy a judgment obtained against it, based on the fraudulent division by defendant of the surplus earnings of the corpora- tion, accrues when the corporation is compelled to pay the judgment, and not when the wrongful division of the earnings was made; a juncture of wrong and damage giving rise to a cause of action. Dodd v. Pittsburg, etc., R. Co., 33 Ky. Law Rep. 605, 106 S. W. 787. Where a purchaser, in buying stock of a national bank, relied on false statements as to the condition of the bank, which was in fact in- solvent, and soon went into the hands of the receiver, and under the national banking law the receiver made an assessment on tne stock, and obtained a judgment against the purchaser for the amount thereof, the purchaser's right of action for the amount of the assessment against those liable for the false statements did not accrue until pay- ment of the judgment. Houston v. Thornton, 133 N. C. 365, 39 S. E. 837, 65 Am. St. Rep. 699. Where the cashier of plaintiff bank embezzled its money by means of drafts either drawn to the order of or indorsed to defendant to cover losses in speculative transactions, the statute of limitations did not begin to run against the bank's right to recover the money from defendant until the drafts were collected. St. Charles Sav. Bank v. Orthwein Inv. Co., 160 Mo. App. 369, 140 S. W. 931. 32. Clevenger v. Galloway & Gar- rison (Tex. Civ. App.), 104 S. W. 914. Tlie rule that one who has taken part in the conversion of timber may be held as a joint wrongdoer with any one who thereafter does any- thing in pursuance of such conver- sion does not prevent the statute of limitations from running in favor of one who took such part without any knowledge that any wrong was in- tended, and did not participate in subsequent acts of conversion. Kni- sely V. Stein, 53 Mich. 380, 18 N. W. 115. 33. Calumet Electric St. Ry. Co. v. Mabie, 66 111. App. 235. Expenditures made on account of 8Y6 Statutes of Limitation. by the negligence of a city in respect to a waterway damages for injuries done six years before the suit was begun cannot be re- covered.^* Where the directors of an insolvent national bank by their negligent and wrongful acts caused the stockholders to lose their stock and subjected them to the payment of assessments which were levied upon them as stockholders, the right of action of the stockholders against the directors for damages sustained ac- crued at the time of the commission of the wrongful acts, and not at the time at which the assessments were levied or paid, or the damages actually sustained.^^ § 187d(3). Negligence in performance of professional services. A cause of action against an abstracter of titles for giving a wrong certificate of title accrues at the date of the delivery, and not at the time the negligence is discovered or consequential dam- ages arise.'* Where it is claimed that an attorney was negligent in passing upon the title to certain real estate, an action against him is barred in five years from the date of such negligence and not from the date of a decision of the Supreme Court holding that the client had no title. '^ Where a physician and surgeon operates on a patient for what he pronounces to be appendicitis, and neg- lects or carelessly forgets to remove a sponge which he has placed in the abdominal cavity, and closes the incision with the sponge remaining therein, and this condition continues during his entire professional relation to the case, and is present when he abandons the same, limitations do not commence to rim against the right to injuries received as the result of the 35. Brinekeroff v. Bostwick, 34 negligence of another does not pre- Hun 352, judg. rev'd 99 N. Y. 185, vent the statute of limitations from 1 N. E. 663. commencing to run from the time of 36. Provident Loan Trust Co. v. the original injury. Birmingham v. Walcott, 5 Kan. App. 473, 47 Pac. 8; Chesapeake & 0. Ey. Co. 98 Va. 548, Walker v. Bowman, 27 Okl. 172, 111 2 Va. Sup. Ct. Eep. 465, 37 S. E. 17. Pac. 319, rev'g judg. 105 Pac. 649. 34. Prime v. City of Yonkers, 131 37. Maloney v. Graham, 171 111. App. Div. 110, 115 N. Y. Supp. 305, App. 409. judg. aflf'd 199 N. Y. 542, 93 N. E. 1129. ToETS Quasi e Conteacttt. 877 sue on account of such want of , skill and attention until the case has been so abandoned or the professional relation otherwise ter- minated.^* This decision is based on the theory that the injury to the patient and the negligence of the physician were continuous,' and that the statute does not run against an action therefor until the relationship is ended. To the contrary it has been held that a cause of action against a physician for malpractice in setting a broken arm, based on the improper setting of the bones and on the negligent omission to discover that fact, accrues when the negligent acts were committed by the physician, without reference to the time of his discharge.^' § 187d(4). Injuries to person. A cause of action under the Employers' Liability Act of April 22, 1908, and supplements thereto, for the death of an employe of a railroad company engaged in interstate commerce, accrues on the death of the employe.^ The cause of action for alienation of affections arises from the enticement of the spouse away, and where the spouse does not return, but remains with the enticer, and there is no new enticement, the cause of action is barred by limitations after six years from the enticement.*^ A father's cause 38. Gillette v. Tucker, 67 Ohio St- cause of action against a railroad 106, 65 N. E. 865, 93 Am. St. Rep. company for injuries to a servant, 639 (by divided court). See also brought by the servant's administra- Tucker v. Gillette, 12 0. C. D. 401, tor, accrued on the infliction of the 22 Ohio Cir. Ct. R. 664. injury. Louisville & N. R. Co. v. Under Ohio Rev. St. § 4983, in an Simrall's Adm'r, 31 Ky. Law Rep. action for malpractice it is the 1269, 104 S. W. 1011, 32 Ky. Law- breach of dutv that gives rise to the Rep. 240, 104 S. W. 1199. action and causes it to accrue, and 41. Hall v. Smith, 80 Misc. Rep. not knowledge of the fact evidenced 85, 140 N. Y. Supp. 796. by resulting injury. Fronce v. Nich- A husband's cause of action for the ols, 33 Ohio Cir. Ct. Rep. 539, 12 0. alienation of his wife's affections ac- C. D. 472. crucf! at the time when he discovers 39. Lotten v. O'Brien, 146 Wis. her in the act of adultery; and an 258, 131 N. W. 361. action therefor against her para- 40. Bixler v. Pennsylvania R. Co., mour, brought more than six years 201 Fed. 553 (U. S. D. C). A after such discovery, is barred by the 878 Statutes of Limitation. of action for the seduction of his daughter arises when the act of seduction is complete, and not when he discovers that his daugh- ter has been seduced.*^ Seduction is a continous act, and, so long as the illicit relations are kept up by continuous acts, promises, or artifices of the man, the statute of limitations will not run against an action by the woman for damages.^^ Limitations be- gin to run against an action for personal injury from the date of the injury, when the right of action accrues.^* Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends ; *^ and against an action for malicious prosecution when the prosecution is ended or abandoned.^^ The etatute of limitations (Pub. St. c. 197, § 1, cl. 4). Sanborn v. Gale, 163 Mass. 413, 38 N. E. 710, 26 L. R. A. 864. A complaint for alienating a wife's affections, stating thaj; four years be- fore, defendant began to poison the wife's mind, does not show that it is barred by the two-years' limitation, when it appears that the wife did not leave her husband, and declare she would no longer live with him, until two weeks before suit commenced. Bockman v. Ritter, 31 Ind. App. 250, 52 N. E. 100. The cause of action accrued at the time of the separa- tion. Farneman v. Farneman, 46 Ind. App. 453, 90 N. E. 775, rehear- ing denied 91 N. E. 968. 42. Davis v. Boyett, 130 Ga. 649, 48 S. E. 185, 66 L. R. A. 258, 102 Am. St. Rep. 118. An action by a father to recover damages for the seduction of his daughter is barred by limitations, unless brought within two years from the time the right of action accrued. Hutcherson v. Dur- den, 113 Ga. G87, 39 S. E. 495, 54 L. R. A. 811. Since successive acts of seduction constitute but one wrong, plaintiff's action for seduction was not barred by the two-years' statutory limit, where it was brought within two years of the final act of sexual inter- course, though the first act of seduc- tion had occurred more than four years before the bringing of the ac- tion. Gunder v. Tibbitts, 153 Ind. 591, 55 N. E. 763. 43. Ferguson v. Moore, 98 Tenn. 343, 39 S. W. 341. Ala. — Wiliams v.' Alabama Great Southern R. Co., 158 Ala. 396, 48 So. 485. 44. Ind. — Indianapolis St. Ry. Co. V. Fearnaught, 40 Ind. App. 333, 82 N. E. 102. Okl. — Waugh V. Guthrie Gas, etc., Co., 37 Okl. 239, 131 Pac. 174. 45. U. 8. — Alexander v. Thomp- son, 195 Fed. 31 (C. C. A., Mich.). Go.— Gordon v. West, 129 Ga. 532, 59 S. E. 332, 13 L. R. A. (N. S.) 549. 46. III. — McElroy v. Catholic Press Co., 254 111. 290, 98 N. E. 527. La. — Games v. Atkins Bros. Co., 123 La. 36, 48 So. 573. See King v. Erskins, 116 La. 480, 40 So. 844. ToETs Quasi e Conteactt:. 879 right of action for damages from the sale of intoxicating liquors to plaintiff's husband was not barred when brought within four years after defendant had ceased to supply the husband with in- toxicating liquor, causing him to become an habitual drunkard. '*'' § 187d(5). Injuries to property in general. The statute commences to run against an action for injury to land from negligence in maintaining a ditch at the time the in- jury occurs, whatever the time of the negligence.^* An action for damages, caused by the negligent construction of a building at- tached to a party wall, accrues at the time of the infliction of the damages.^' Where defendant railroad company constructed a rail- Tea;. — ^Von Koehring v. Witte, 15 Tex. Civ. App. 646, 40 S. W. 63. But see Ma-ka-ta-wah-qua-twa v. Eebok, 111 Fed. 13 (U. S. C. C, Iowa), wherein it was held that in an action for malicious prosecution limitation ran from the date of the arrest. See also Virtue v. Creamery Package Mfg. Co., 123 Minn. 17, 143 N. W. 930, 1136. 47. — Colman v. Loeper, 94 Neb. 270, 143 N. W. 295. See also, as to actions for injuries to the person: D. C. — Jackson v. Emmons, 19 App. D. C. 250. Oa. — Cooper v. P. P. Most Nur- sery Co., 10 Gm. App. 351, 73 S. E. 414. La. — ^D'Echaux v. D'Echaux, 133 La. 123, 63 So. 597, action for slan- der. Tex. — Texas Cent. E. Co. v. Haw- kins (Civ. App.), 162 S. W. 133. 48. City of Huntsville v. Ewing, 116 Ala. 576, 23 So. 984; Sloss-Shef- field Steel & Iron Co. v. Sampson, 158 Ala. 590, 48 So. 493. Though defendant was a party to the wrongful conversion of a saw- mill, if the owner afterwards en- gaged him for hire to keep posses- sion of the sawmill, the owner's pos- session was thereby restored, so that its subsequent conversion by de- fendant was a new conversion, as to which limitations did not begin to. run until it was committed. Plum- mer v. Hardison, 6 Ala. App. 535, 60 So. 502. 49. Evans v. Pettus, 113 Ark. 573, 166 S. W. 955. Where a railroad company con- structed an embankment along the side of a ditch, which was obstructed by the falling of dirt from the em- bankment, limitations run from the time of the obstruction. Chicago, R. I. & P. Ey. Co. V. McCutohen, 80 Ark. 335, 96 S. W. 1054. As against the mortgagee's action for conversion of mortgaged chattels by a subse- quent transferee, limitation begins to run from the date of purchase, the transferee being in possession of and using the chattels. Ozark Land Co. V. Lane-Bodley Co., 64 Ark. 301, 43 S. W. 281. 880 Statutes of Limitation'. road on plaintiff's land without commencing condemnation pro- ceedings, the injury was of a permanent nature, the entire cause of action for damages-accruing therefor when the trespass was com- mitted.^" A suit against an abutting owner for injuries caused by stepping into a hole in the top of a catch-basin unlawfully placed in a highway, commenced four years after the catch-basin was constructed, but within two years from the time of injury, was not barred by limitations.^^ Whenever a nuisance is of a per- manent character and its construction and continuance is neces- sarily injurious, the damage is original and may be at once fully compensated; and in such case limitation begins to run against an action for relief from the construction of the nuisance. ^^ An action against a railroad company for damages alleged to have been caused by the operation of the road is barred in five years, under the rule that an action by an adjoining property owner to recover damages in such cases for injuries to his property by reason of prudent operation of the railroad is barred in five years after the operation of the railroad was begun.^^ An action by an abut- 50. Williams v. Southern Pao. E. Co., 141 Ga. 701, 81 S. E. 1110, as to Co., 150 Cal. 634, 89 Pac. 599. See an action for trespass against a rail- also Cobb T. Wrightsville & T. E. Co., road for appropriating land for right 129 Ga. 377, 58 S. E. 862. of way. But where defendants constructed 52. Cubbins v. Mississippi Eiver ditches on their own land to Commission, 204 Fed. 399 (U. S. D. carry away surface water, no right of C). action accrued to plaintiflF, an ad- An action for a permanent nuisance joining owner, until actual injury. is barred by failure to bring an actios Meigs V. Pinkham, 159 Cal. 104, 112 within the period of limitation after Pac. 883. Where a railroad is a nuis- its existence and discovery. Gorman ance, it is a permanent one, and an v. Chicago, B. & Q. E. Co., 166 Mo. action for damages therefor will be App. 320, 148 S. W. 1009. barred, unless brought within the 53. Kilcoyn v. Chicago, etc., E. Co., Btatutory period. Southern Ey. Co. v. 141 Ky. 337, 132 S. W. 438. See also McMenamin, 113 Va. 121, 73 S. E. Louisville Ey. Co. v. Wiggington, 156 980. Ky. 400, 161 S. W. 209. 51. Georgia Eailway & Electric Co. Where a sewer was adequate at the V. Tompkins, 138 Ga. 596, 75 S. E. time of its original construction, but ^S*- became inadequate, owing to the con- See Adams v. Macon, D. & S. E. nection of other sewers with it, a ToETS Quasi e Contbacttt. 881 ting owner for damages for the negligent construction of a street improvement by municipal authorities accrues at the time the work is negligently done and the abutting property is thereby sensibly impaired.^* Where a nuisance is of a permanent charac- ter, inflicting damages of a permanent nature, a cause of action therefor accrues at the time of the creation of the nuisance, and limitations begin to run from that time.^^ A cause of action against a carrier for the conversion of goods delivered to it for shipment, but which were never delivered to the consignee, ac- crues, so that limitations begin to run, at the time of the delivery of the goods to the carrier.^ An action against a railroad com- cause of action for injuries arising after such connection accrued at the time the injury waa inflicted, and not at the time the sewer was originally constructed. City of Louisville v. Kramer's Adm'x, 151 Ky. 117, 151 S. W. 379, judg. rev'd on rehearing 151 Ky. 577, 152 S. W. 544. And see Cumberland K. Co. v. Bays, 153 Ky. 159, 154 S. W. 939, action for nuis- ance; City of Louisville v. Coleburne, 108 Ky. 430, 23 Ky. Law Rep. 34, ac- tion by life tenant to recover damages for injury to the use or rental value of the property. 54. Earnhardt v. Board of Com'rs of Town of Lexington, 157 N. C. 234, 72 S. E. 864; Smith v. City of Seattle, 18 Wash. 484, 51 Pac. 1057, 63 Am. St. Rep. 910. See Campbell v. Ra- leigh & C. R. Co., 159 N. C. 586, 75 S. E. 1105, as to action for damages to land caused by a railroad embank- ment. 65. Uvalde Electric Light Co. v. Parsons (Tex. Civ. App.), 138 S. W. 163 ; Parsons v. Missouri, K. & T. Ry. Co. of Texas (T«x. Civ. App.), 137 S. W. 475. Where defendant's lessor laid its 56 track in the street in front of plain- tiff's residence, but plaintiff was not damaged until the track was leased by defendant, limitations did not be- gin to run until the beginning of the damage. Houston Belt & Terminal Ry. Co. V. Ashe (Tex. Civ. App.), 158 S. W. 205. And see Trinity & B. V. Ry. Co. V. Jobe (Tex. Civ. App.), 126 S. W. 32; International & G. N. R. Co. V. Doeppenschmidt (Tex. Civ. App.), 120 S. W. 928. An action for damages, in that a railroad by failure to construct open- ings in its fence and a crossing over its roadbed entirely tut off a field and deprived the owner of its use, accrues when the fence is built, so as to start the statute of limitations running. Sutherland v. Galveston, etc., Ry. Co. (Tex. Civ. App.), 108 S. W. 969. 56. Hooks V. Gulf, etc., Ry. Co. (Tex. Civ. App.), 97 S. W. 516. A cause of .action in favor of a chattel mortgagee for conversion of the property accrued when the prop- erty was applied to claims other than the mortgage in repudiation of the mortgage unless he was excusably ignorant of the cause of action. 882 Statutes of Limitatioit. pany for the value of land wrongfully appropriated ty it for quasi puUic purposes would accrue when the land was wrongfully ap- propriated." Where an elevated railroad was completed January 15, 1880, though not opened to the public until March 1, 1880, it was in operation from the former date, so that an action first brought by the plaintiff or his predecessors on February 28, 1900, to restrain its operation and maintenance, was barred by the statu- tory period of twenty years.^^ When the cause of injury to realty is not permanent, the statute of limitations does not begin to run until the injury is suffered.^' The placing by railroad companies upon streets of permanent structures that prevent the public use Beaumont Rice Mills v. Port Arthur Eice Milling Co. (Tex. Civ. App.), 141 S. W. 349, Judg. rev'd Port Ar- thur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S. W. 936. Where a buyer in a conditional contract did not consent to the sell- er's assumption of control over the goods, and renting them to third per- sons before the maturity of any in- stallment of the price, the cause of action for the seller's conversion ac- crued at that time. Roberon v. With- ers (Tex Civ. App.), 152 S. W. 1160. An action against shippers of grain for conversion by reason of the ap- propriation of the proceeds of grain delivered to them for shipment, the money to be held until rent was satis- fled, accrued at the time of the ap- propriation of the money. Hopper v. Hays, 82 Mo. App. 494. See also Nashville, etc., Ry. v. Dale & N. Mill- ing Co., 68 Kan. 108, 74 Pac. 596. 57. Eivard v. Missouri Pac. Ey. Co., 157 Mo. 135, 165 S. W. 763. 58. Rothmann v. Interborough Rapid Transit Co., 155 App. Div. 193, 139 N. Y. Supp. 1031, rev'g judg. 121 N. Y. Supp. 200, 66 Misc. Rep. 378. 59. Waugh V. Guthrie Gas, Light, etc., Co., 37 Okl. 239, 131 Pac. 174. ' Limitations do not begin to run in favor of an electric light company trimming trees of owners of property abutting on the street until it trims the trees. Slabaugh v. Omaha Elec- tric Light & Power Co., 87 Neb. 805, 128 N. W. 505. Where crops are de- stroyed by the negligence of a rail- way company in permitting a water- way to become obstructed, the cause of action accrues when the crops are destroyed. Gray v. Chicago, etc., K. Co., 90 Neb. 795, 134 N. W. 961. Limitations begin to run against an action for damages to property grow- ing out of the erection of a standpipe from the erection and completion of such pipe. Doyle v. City of Syca- more, 81 111. App. 589, aff'd 193 111. 501, 61 N. E. 1117. See also, as to injuries to property in general: Ariz. — Henshaw v. Salt River Canal Co., 9 Ariz. 418, 84 Pac. 908, action for wrongful appropriation of water rights. /md.— Pickett v. Toledo, etc., E. Co., 131 Ind. 562, 31 N. E. 200, action for Torts Quasi e Coi^teactu. 883 of such streets is a public nuisance, in favor of which limita- tions do not run ; especially if such structures when so placed were claimed by such railroads to be subservient to the public use to which the premises had been dedicated as a street, and pursuant to a lawful agreement with such city to that end.^" § 187d(6). Continuing injury in general. The fact that damages for a portion of the acts complained of tortious entry upon lands. Seig- mund V. Tyner, 53 Ind. App. 581, 101 N. E. 20. La. — Louisiana Stave Co. v. South Arkansas Lumber Co., 135 La. 232, 65 So. 226; Jones v. Texas & P. Ry. Co., 125 La. 542, 51 So. 582, action for damages for death of a mule struck by a train. Mich. — Jenks v. Hart Cedar & Lumber Co., 143 Mich. 449, 13 De- troit Leg. N. 44, 106 N. W. 1119, 114 Am. St. Eep. 673. Minn. — Preston v. Cloquet Tie & Post Co., 114 Minn. 398, 131 N. W. 474, an action for the conversion of timber. Ohio. — Duff V. United States Gyp- sum Co., 189 Fed. 234 (C. C, Ohio), action for injury to a gypsum mine from water percolating from an ad- joining mine accrued at the date of the flooding. N. J. — Rector, etc., of Church of Holy Communion v. Paterson Exten- sion R. Co., 66 N. J. Law, 218, 49 Atl. 1030, 55 L. K. A. 81. Iowa. — Valentine v. Widman, 156 Iowa, 172, 135 N. W. 599, action for damage to land by extension of drains accrued at time of extension; Soderburg v. Chicago, etc., R. Co. (Iowa), 149 N. W. 82, action for con- tinuing nuisance from soot and smoke of a railroad may be maintained at any time. Or. — Bergman v. Inman, Poulsen & Co., 43 Or. 456, 72 Pac. 1086, 99 Am. St. Rep. 771, 73 Pac. 341. Pa. — ^Noonan v. Pardee, 200 Pa. 474, 50 Atl. 355, 55 L. R. A. 410, 86 Am. St. Rep. 722, action for the cav- ing in of the surface from failure of the operator of a coal mine to leave proper support accrues when the coal is removed without leaving proper support. Patterson v. Williams, 52 Pa. Super. Ct. 299, action for con- version of a horse. Tex. — City of Houston v. Parr (Civ App.), 47 S. W. 393, action for damages for construction of a ditch by a city; Kruegel v. Trinity Ceme- tery Co. (Civ. App.), 63 S. W. 352, action for burial of corpses of person not connected with him on plaintiff's lot. TF. Va. — Day v. Louisville Coal & Coke Co., 60 W. Va. 27, 53 S. E. 776, 10 L. R. A. (N. S.) 167. Wis. — Grunert v. Brown, 119 Wis. 136, 95 N. W. 959, action for conver- sion of timber accrued at the time of the original trespass. 60. Cleveland & P. Ry. Co. v. City of Clerveland, 33 Ohio Cir. Ct. R. 482. 884 Statutes of Limitation. are barred by the statute of limitations does not preclude com- plainant from recovering damages for acts done within the time limited, where it appears that the nuisance was a continuing one.^' Altough a suit for the creation of a nuisance may be barred by the statute of limitations, yet if the nuisance be of a continuing charac- ter, which can and should be abated, suit may be brought for dam- ages arising from its maintenance.^^ Where a permanent structure legally authorized, such as a railroad embankment, is built and there is no improper or negligent construction, all damages, past, present and future are sustained when the structure is erected and its operation begun, and the statute of limitations begins to run on the completion of the structure. In case of negligent or im- proper construction, the injured party may, at his election, either treat the structure as permanent and sue for all damages, or he may treat it as temporary and transient and sue and recover for each recurring injury.®^ When a nuisance continues, and creates 61. Whaley v. Wilson, 112 Ala. 627, 20 So. 922. Where the obstruction of a water course was of a continuing character and caused damages at each heavy rainfall, plaintiff was entitled to recover all damages sustainea within one year before the commence- ment of his action, regardless of when the obstruction was placed there. Black V. Hankins, 6 Ala. App. 525, 60 So. 502. 62. Gabbett v. City of Atlanta, 137 Ga. 180, 73 S. E. 372; City Council of Augusta V. Marks, 124 6a. 365, 52 S. B. 539; Southern Ry. Co. v. Morris, 119 Ga. 234, 46 S. E. 85. If a structure is not necessarily and of itself a permanent and continuing nuisance, but only becomes such in consequence of some supervening cause, which produces special injury at different periods, a separate action lies for each injury thus occasioned, and the statute of limitations begins to run against such cause of action only from the time of its accrual. City Council of Augusta v. Lombard, 101 Ga. 724, 28 S. E. 994. 63. Horner v. Baltimore, etc., E. Co., 165 111. App. 370. Where action is for damages to real' estate from extension of railroad and operation of the extension, length of time the other part has been con- structed does not affect the question of limitation. Illinois Cent. E. Co. v. Turner, 194 111. 575, 62 N. E. 798, aff'g judg. 97 111. App. 219. See also Calumet & C. Canal & Dock Co. v. Morawetz, 195 111. 398, 63 N. E. 165. Where an injury to property is caused by the construction of a rail- way for proper railway uses, the statutes of limitations begin to run from the date of the existence of the causes which produced the injury. Illinois Cent. R. Co. v. Ferrell, 108 111. App. 659. ToETs Quasi e Contea<3tu. 885 a fresh injury daily, there may be a right of action, although the original right of action has been lost by lapse of time/* For in- jury to an abutting property owner for the failure of a railroad company to place in proper repair a street on which it has built its railroad, successive actions may be maintained until the injury has been abated by placing the street in a proper condition, and the fact that the actions for the earlier injuries are barred by limitations will not affect the bringing of actions for later injuries.^^ A con- tinuing nuisance arising from the operation of a railroad in an improper manner is not barred until the statutory period has run from the last repetition.^^ In the case of a continuous injury or trespass without fresh violence, and of constantly accruing dam- ages, the statut-e of limitations can cut off only back of six years from suit brought." Where a nuisance is a continuing one, the party complaining thereof cannot recover on the original cause of action after the expiration of the statutory period, bulj may for its continuance for any time within such period.''* Limitations do 64. Peck V. Michigan City, 149 Ind. 670, 49 N. E. 800. And see May V. George, 53 Ind. App. 259, 101 N. E. 393. 65. Stein v. Chesapeake & O. Ey. Co., 132 Ky. 322, 116 S. W. 733. Where a sewer becomes increasingly inadequate by the increasing demands on its capacity, due to the growth of the city, each recurrence of injury at- tributable to the changed condition is a separate cause of action, and limitations do not begin to run until the accrual of such a cause of action. City of Louisville v. Leezer, 143 Ky. 244, 136 S. W. 223. 66. Willson v. New York Cent. & H. R. E. Co., 146 N. Y. Supp. 208. 67. Wheeler v. Town of St. Johns- bury, 87 Vt. 46, 87 Atl. 349. 68. Cohen v. Bellenot (Va.), 32 S. E. 455. Continuous trespass. — See Graf v. City of St. Louis, 8 Mo. App. 552, memorandum. " Continuing trespass," within the statute of limitations, refers to tres- pass by structures of a permanent nature, and not to separate and dis- tinct acts of wrongfully cutting tim- ber. Sample v. Eoper Lumber Co., 150 N. C. 161, 63 S. E. 731. For continuing injury in general. see also Conn. — ^Knapp & Cowles Mfg. Co., iSTew York, etc., E. Co., 76 Conn. 311, 56 Atl. 512, 100 Am. St. Eep. 994. Fla. — Savannah, etc., Ey. Co. v. Davis, 25 Fla. 917, 7 So. 29. CoJo.— Wright v. Ulrich, 40 Colo. 437, 91 Pae. 43, the nuisance caused by the operation of a slaughter house is a continuing one against which limitations do not commence to run at the inception thereof. S86 Statutes of Limitatioit. not begin to run, because of a nuisance, from the time of the erec- tion of an electric plant, but only from the time its operation constitutes a nuisance and causes an injury to plaintifPs health.^ § 187d(7). Injuries to property by flowage, diversion or obstruc- tion of waters. A cause of action resulting from the negligent construction of a railway embankment, which arrested and held upon lands the flood waters of a natural stream, accrues at the date of the injury, and not of the construction of the improvement™ When a perman- Ga. — ^Monroe v. McCranie & Vick- ers, 117 Ga. 890, 45 S. E. 346. Iowa. — Pettit v. Incorporated Town of Grand Junction, Greene County, 119 Iowa, 352, 93 N. W. 381; J. K. & W. H. Gilcrest Co. v. City of Des Moines, 128 Iowa, 49, 102 N. W. 831, the custom of a railroad company of causing trains to stand at the inter- section of certain streets constitutes a continuing nuisance. Xj/.— -Illinois Cent. E. Co. v. Hodge, 21 Ky. Law Rep. 1479, 55 S. W. 688 ; Klosterman v. Chesapeake 0. Ey. Co., 22 Ky. Law Kep. 193, 56 S. W. 820. La. — ^Egan v. Hotel Grunewald Co., 134 La. 740, 64 So. 698; Barrow v. Gaillardanne, 122 La. 558, 47 So. 891, the prescription of one year is not pleadable in bar of a demand for an injunction against a present continu- ing nuisance; Drews v. Williams, 50 La. Ann. 579, 23 So. 897; GriflSn v. Drainage Commission of New Or- leans, 110 La. 840, 34 So. 799. Mich. — ^Hoffman v. Flint & P. M. E. Co., 114 Mich. 316, 72 N. W. 167, 4 Detroit Leg. N. 790; Phelps v. City of Detroit, 120 Mich. 447, 79 N. W. 640, 6 Detroit Leg. N. 199. . Mo. — De Geofroy v. Merchants' Bridge Terminal Ry. Co., 179 Mo. 698, 79 S. W. 386, 64 L. E. A. 959, 101 Am. St. Eep. 534. v. C. — Hodges V. Western Union Tel. Co., 133 N. C. 235, 45 S. E. 573. Tea;.— Missouri, K. & T. Ey. Co. v. Harris (Tex. Civ. App.), 138 S. W. 1085, continuous shipment of freight; City of Houston v. Merkel (Civ. App.), 153 S. W. 385; Brown v. Texas Cent. E. Co., 43 Tex. Civ. App. 393, 94 S. W. 134. To. — ^Virginia Ey. & Power Co. v. Ferebee, 115 Va. 289, 78 S. E. 556. Wash. — Doran v. City of Seattle, 34 Wash. 183, 64 Pac. 230, 54 L. E. A. 532, 85 Am. St. Eep. 948 ; Stei;rett v. Northport Mining & Smelting Co., 30 Wash. 164, 70 Pac. 366. W. Ya. — ^Pickens v. Coal Eiver Boom & Timber Co., 58 W. Va. 11, 50 S. E. 873. 69. Parsons v. Uvalde Electric Light Co. (Tex.), 163 S. W. 1, rev'g judg. Uvalde Electric Light Co. v. Parsons (Civ. App.), 138 S. W. 163. 70. Arh. — St. Louis, etc., Ey. Co. V. Stephens, 72 Ark. 137, 78 S. W. 766. Ind. — Xew York, etc., E. Co. v. ToETs Quasi e Contsactu. 887 ent structure causes an overflow and resulting damage to another, limitations run against his claim from the time the obstruction is completed, if the nature and extent of the damage can be reasonably ascertain; if not, there may be as many successive recoveries as there are successive injuries developed.'^ Limitations against an action for flooding plaintiff's land from waters of a stream does not begin to run from the time defendant filled in low land beside the stream, causing the overflow, but only from the time when, during high water, it was actually overflowed.'^ The right of action Hamlet Hay Co., 149 Ind. 344, 47 N. E. 1060; Kelly v. Pittsburgh, etc., Ry. Co., 38 Ind. App. 457, 63 N. E. 233, 91 Am. St. Rep. 134. ffe5.— Chicago, B. & Q. E. Co. v. Emmert, 53 Neb. 337, 73 N. W. 540, 68 Am. St. Eep. 603; Chicago, K. I. & P. Co. V. Andreesen, 62 Neb. 456, 87 N. W. 167; Missouri Pac. Ky. Co. V. Hemingway, 63 Neb. 610, 88 N. W. 673; Chicago, B. & Q. E. Co. v. Mit- chell, 74 Neb. 563, 104 N. W. 1144. 8. C. — Lawton v. Seaboard Air Line Ey., 75 S. C. 82, 55 S. E. 128. See also St. Liouis, etc., Ey. Co. v. Hosh- all, 83 Ark. 387, 102 S. W. 307; St Louis, etc., Ey. Co. v. Eus- sell (Ark.), 171 S. W. 891; St. Louis Southwestern Ey. Co. v. Mor- ris, 76 Ark. 542, 89 S. W. 846; McClure v. City of Broken Bow, 81 Neb. 384, 115 N. W. 1081; Eeed v. Chicago, B. & Q. E. Co., 86 Neb. 54, 124 N. W. 917; Christensen v. Omaha Ice & Cold Storage Co., 92 Neb. 345, 138 N. W. 141, 41 L. E. A. (N. S.) 1221; Atchison, etc., Ey, Co. v. El- dridge, 41 Okl. 463, 139 Pac. 354; Texas & P. Ey. Co. v. Ford (Tex. Civ. App.) 117 S. W. 201; Gulf, etc., Ey. Co. V. Caldwell (Tex. Civ. App.), 102 S. W. 461; St. Louis Southwest- ern Ey. Co. of Texas v. Beck (Tex. Civ. App.), 80 S. W. 538. 71. Chicago, E. I. & P. Ey. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127. See also Board of Directors of St. Francis Levee Dist. v. Barton, 93 Ark. 406; Kelly v. Kansas City Southern Ey. Co., 93 Ark. 465, 123 S. W. 664; Turner v. Overton, 86 Ark. 406, 111 S. W. 270; Perry v. Chicago, etc., Ey. Co. (Tex. Civ. App.), 162 S. W. 1185; Bigham Bros. v. Port Ar- thur Canal & Dock Co, (Tex. Civ. App.), 126 S. W. 324; Adilene Light & Water Co. v. Clack (Tex. Civ. App.), 134 S. W. 301; International & G. N. E. Co. V. Kyle (Tex. Civ. App.), 101 S. W. 373. 72. Sloss-Sheffield Steel & Iron Co. V. Mitchell, 167 Ala. 336, 53 So. 69. See also Sloss-Sheffield Steel & Iron Co. V. Dorman, 159 Ala. 321, 49 So. 242; McCalla v. Louisville & N. E. Co., 163 Ala. 107, 50 So. 971. The statute of limitations will not begin to run, in an action for injuries to the soil by mining operations, causing a failure of support, until some ac- tual damage has been done. West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849. 888 Statutes of Limitatioit. against a city for injury from the flooding of property by the negligent construction of a sewer accrues when the property is flooded, and limitation runs only from that dateJ^ Limitations barring an action for damages caused by an overflow resulting from the digging of a ditch begin to run from the date of the in- jury, and not from that of the digging of the ditch.'* Where the grantee of a right of way for a flume across an irrigation ditch under a grant providing that the crossing should be made so as not to impede the flow of the water constructed the flume so as to obstruct such flow, the right of action for the obstruction ac- crued when the flume was built, and limitations then began.'^ A cause of action for flooding land by the erection of a dam accrues when the land is flooded, and not when the dam is erected.™ Where defendants construct an embankment so defectively that it causes plaintiff's land to be overflowed, each overflow causing damages creates a new cause of action, and the statute of limitations runs from the date of the injury, and not from the time the embank- ment was improperly constructed.'' A tile drain, taking water 73. Kansas City v. King, 65 Kan. The injuries to land from water 64, 68 Pac. 1093; City of Louisville seeping from a properly constructed V. Norris, 111 Ky. 903, 23 Ky. Law irrigation ditch which is intended to Eep. 1195, 64 S. W. 958, 98 Am. St. be permanent constitutes a single Eep. 437. cause of action, and as affected by the See Massengale v. City of Atlanta, statute of limitations accrues at the 113 Ga. 966, 39 S. E. 578 ; City of beginning of the injury. Middelkamp Houston V. Houston, etc., R. Co., 26 v. Bessemer Irrigating Ditch Co., 46 Tex. Civ. App. 228, 63 S. W. 1056. Colo. 102, 103 Pac. 280; Barnum t. 74. Fremont, etc., R. Co. v. Har- Bessemer Irrigating Ditch Co., 46 lin, 50 Neb. 698, 70 N. W. 263, 36 L. Colo.' 125, 103 Pac. 287. R. A. 417, 61 Am. St. Rep. 578; Ho- 76. Greeley Irr. Co. v. Von Trotha, cutt V. Wilmington & W. E. Co., 124 48 Colo. 13, 108 Pac. 985; Irvine v. N. C. 214, 32 S. E. 681; St. Louis City of Oelwein (Iowa), 160 N. W. Southwestern Ry. Co. of Texas v. 674. Clayton (Tex. Civ. App.), 118 S. W. 77. Fincher v. Baltimore, etc., K. 248; Simon v. Nance (Tex. Civ. Co., 179 111. App. 622. See also Jones App.), 100 S. W. 1038. V. Sanitary Dist. of Chicago, 252 111. 75. Centerville & Kingsburg Irr. 591, 97 N. E. 210. Ditch Co. V. Sanger Lumber Co., 140 Cal. 385, 73 Pac. 1079. ToETs Quasi e Contkacttt. 889 onto the land of another, is not a permanent nuisance, so that all the damages accrue when it is first put in ; hut recovery may he had for the damages suffered therefrom during the five years preceding action.'^ Limitations commence to run against an action against a city for damages for flooding of land owing to the negligence of the city in the paving and guttering of a street at the time of the flooding, and not at the time of the improvement causing the same.'^ Where the flooding of a hathing heach was caused by the raising during each season of a bear trap upon the top of a law- fully constructed dam, the injury is a recurring one, and the statute of limitations as to each injury runs from the time of that flooding.^ "Where injury to real property results from the con- struction of a permanent structure, the cause of action accrues on %he completion of the structure ; *^ but where the waters of a stream 78. Jones v. Stover, 131 Iowa 119, 108 N. W. 113, 6 L. E. A. (N. S.) 154. The fact that a system of sewers, by means of which sewage was dis- charged into a stream, was of per- manent construction, did not render the nuisance occasioned by such dis- charge a permanent one. Vogt v. City of Grinnell, 123 Iowa 333, 98 N. W. 782. See also Geneser v. Healy 124 Iowa, 310, 100 N. W. 63. 79. City of Kansas City v. Froh- werk, 10 Kan. App. 116, 63 Pac. 353. Under Civ. Code, § 18, subd. 3, an action against a city for injuries by the change of the channel of a stream by a permanent improvement must be brought within two years after such change. Parker v. City of Atchison, 58 Kan. 29, 48 Pac. 631. An owner's right of action for permanent dam- ages from the pollution of a stream by operation of a sewer system and oil refinery is barred in two years after the sewer system and refinery are in operation. McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899. 80. DeflFenbaugh v. Washington Water Power Co., 24 Idaho, 514, 135 Pac. 247. See also Hill v. Empire State-Idaho Mining & Developing Co., 158 Fed. 881 (U. S. C. C, Idaho). Dikes built by a railroad company along the bank of a river to prevent the current from washing away its roadbed are permanent structures, and damages for injuries to adjoin- ing land by the deflection of the cur- rent of the river, both present and prospective, are recoverable in a single action, the right to bring which accrued at once when the dikes were completed and the injury com- menced. Gulf, etc., Ey. Co. v. Mose- ley, 161 Fed. 72 (C. C. A., Ind. T.). 81. King V. Board of Council of City of Danville, 33 Ky. Law Eep. 1188, 107 S. W. 1189. See also Madi- sonville, H. & E. E. Co. v. Graham, 147 Ky. 604, 144 S. W. 737; Hay v. 890 Statutes or Limitatioh". were diverted by means of a culvert, and thereafter the culvert filled up, throwing the water over and injuring plaintiff's lands, limitations run against an action for the injury from the occur- rence thereof, and not from the time of the diversion.*^ An action for damages sustained within six years by the wrongful continuance of a dam is not barred by the statute of limitations, although the dam was erected without right more than six years before the date of the writ.^^ Where a drain is obstructed, and a destructive flood results, limitations then begin to run against the right of action for the obstruction.** The right of action for the negligent con- struction of a levee, in that it was built as a solid bank of earth across an outlet of a lake, instead of having a flood gate for drain- age purposes, whereby water which would have drained off was caused to overflow lands, does not accrue when the levee is built, but when the overflowing actually occurs.*^ Damages from pond- ing or diverting water on land accruing within three years before City of Lexington, 144 Ky. 665, 24 Ky. Law Rep. 1495, 71 S. W. 867; Tietze v. International & G. N. E. Co., 35 Tex. Civ. App. 136, 80 S. W. 124; Cape V. Thompson, 31 Tex. Civ. App. 681, 53 S. W. 368. 82. Illinois Cent. E. Co. v. Taylor, 28 Ky. Law Rep. 139, 89 S. W. 121. See also Illinois Cent. E. Co. v. Haynes (Ky.), 132 S. W. 310; Ire- land V. Bowman & Crockrell, 130 Ky. 153, 114 S. W. 338, rehearing 113 S. W. 56, denied; Town of Cen- tral Covington v. Beiser, 122 Ky. 715, 29 Ky. Law Eep. 261, 92 S. W. 973; Crabtree Coal Min. Co. v. Hamby's Adm'r, 28 Ky. Law Eep. 687, 90 S. W. 326; Finley v. City of Williams- burgh, 34 Ky. Law Eep. 1336; Louis- ville & N. R. Co. V. Cornelius, 111 Ky. 752, 23 Ky. Law Rep. 1069, 64 S. W. 732. A cause of action against a county |or injury resulting from casting more than the natural flow of water upon plaintiff's land accrues when the injury becomes reasonably appar- ent. Moore v. Lawrence County, 143 Ky. 448, 136 S. W. 1031; Chesapeake & O. Ry. Co. V. Robbins, 154 Ky. 387, 581, 157 S. W. 903. 83. Prentiss v. Wood, 132 Mass. 486. And see Stanchfield v. City of New- ton, 142 Mass. 110, 7 N. E. 703. 84. Erwin v. Erie R. Co., 98 App. Div. 402, 90 N. Y. Supp. 315, aff'd 186 N. Y. 550, 79 N. E. 1104. 85. Barnett v. St. Francis Levee Dist., 125 Mo. App. 61, 102 S. W. 583. See also Kellogg v. City of Kirks- ville, 149 Mo. App. 1, 139 S. W. 57; Powers V. St. Louis, etc., Ry. Co., 158 Mo. 87, 57 S. W. 1090, 71 Mo. App. 570. ToETS Quasi e Conteactit. 891 action brought may be recovered, although the injury arose at a more remote period; the injury being regarded as a renewing trespass.*^ Filling certain streets in such a manner as to cause established drains to become worthless, and to cause water to set back on adjacent property, constitutes a continuing nuisance, upon which suit may be brought from time to time, and in which the a boom causes deposit of sand in a stream injuring the capacity statute of limitations may be pleaded.*^ Where the operation of of a mill, limitations begin to run, not from the construction of the boom, but when the damage occurs.^ § 187d(8). Wrongful seizure of property. The statute begins to run against an action for wrongful attach- ment from the time of attachment, or at latest from the time the property was sold in the attachment suit ; and not from the time of final judgment in said suit against the plaintiff therein, though the owner intervened therein, and though, after the o\vner's in- tervention, he was made a defendant in the suit.^ 86. Duval V. Atlantic Coast Line v. Albemarle Soapstone Co., 185 Fed. E. Co., 161 N. C. 448, 77 S. E. 311. 15, 107 C. C. A. 119 (Va.) ; Brisky And see Barclifl v. Norfolk Soutli- v. Leavenworth Logging, Boom & ern R. Co., 168 N. C. 368, 84 S. E. 290; Water Co., 68 Wash. 386, 123 Pae. Savage v. Norfolk Southern R. Co., 519. 16S N. C. 341, 84 S. E. 392 ; Pickett v. 89. Smyth v. Peters Shoe Co., Ill Atlantic Coast Line R. Co., 153 N. Iowa 388, 83 N. W. 898. C. 148, 69 S. E. 8; Harrell v. Nor- Where, during a dispute between a folk & C. R. Co., 122 N. C. 823, 39 landlord and tenant as to the right S. E. 56; Ridley v. Seaboard & R. R. of possession under an oil lease, the Co., 124 N. C. 34, 32 S. E. 325. landlord told the lessee to remove his 87. City of Toledo v. Lewis, 17 Ohio personal property from the premises, Cir. Ct. R. 588, 9 O. C. D. 451. and thereafter the landlord, having And see Detwiler v. City of Toledo, secured a judgment in attachment, 13 Ohio Cir. Ct. R. 579, 6 O. C. D. took possession of the personal prop- 30O. erty, limitations did not begin to 88. Pickens v. Coal River Boom & run against an action by the lessee Timber Co., 66 W. Va. 10, 65 S. E. for conversion of the property at the 865. See also Eells v. Chesapeake & time of the notice to remove the 0. Ry. Co., 49 W. Va. 65, 38 S. E. same. Sattler v. Opperman, 14" Pa. 479, 87 Am. St. Rep. 787; Skipwith Super. Ct. 43. 892 Statutes of Limitation. ^ CHAPTEE XIX. ExECUTOES ABTD AdMIITISTEATOES. Section 188. Executor may pay barred debts or not, in his discretion. 189. Effect of statute when creditor is executor or administrator; when debtor is executor, etc. 190. Acknowledgment by an executor. 191. What acknowledgment by an executor is suflBcient. 192. Where executor is also devisee in trust. 193. Where statute has run against debt before testator's death. 194. When statute has begun to run during the life of testator.' 195. Executors de son tort. 196. Statutory provisions relative to suits in favor of decedents' estates. 197. When parties in interest may set up the statute. 198. Eight of executor to set-off debt barred. 199. Rule in equity as to claims against decedent's estate. 199a. Death of person entitled to sue. 199b. Accrual of cause of action before issuance of letters testa- mentary or of administration. 199c ( 1 ) . Death of person liable in general. 199e (2). Effect of administration of estate of decedent or want thereof. 199c (3). Death of person jointly liable. 199c (4). Death after commencement of action. § 188. Executor may pay barred debts or not, in his discretion. When the remedy for a debt is barred by lapse of time, an executor or administrator is nevertheless not obliged to t&ke ad- vantage of the statute, but may at his discretion satisfy the debt.'' 1. In re Huger, 100 Fed. 805 ; Woods son, 61 N. J. Eq. 188, 48 Atl. 333, V. Irwin, 141 Pa. 378. In New Jersey, 339. the rule that a personal representa- In England an executor cannot, tive may waive the statute of limi- however, lawfully pay a barred debt tations applies both as to personalty of the testator after it is judicially and also as to realty when the latter declared that it is not recoverable is sold under a decree for sale which because barred by the statute, and does not direct that the land be sold probably also if such payment is free from the lien of debts due to against the testator's declared wish; creditors. First Nat. Bank v. Thomp- if he does so, he is guilty of a devas- ExECUTOES AWB AdMINISTEATOES. 893 " iN"© executor," said Lord Hardwicke, " is compellable either in law or equity to take advantage of the statute of limitations against a claim otherwise well founded." ^ In fact, it has been treated as almost a duty in some cases for an executor to satisfy in that way, in his representative character, the conscience of tavit, and a creditor who receives such payment with notice or knowledge, may be required to repay it to the estate. Midgley v. Midgley (1893), 3 Ch. 383. When an executor refuses to set up the bar of the statute, a residuary legatee may, it seems, raise this objection. J« re Wenham (1893), 3 Ch. 59. In New York it is held that an acknowledgment of a debt by an ex- ecutor does not, in the absence of an express promise to pay, take the case out of the statute. Schutz v. Morette, 146 N. Y. 137, 40 N. E. 780 ; Yates V. Wing, 59 N. Y. Supp. 78, 42 App. Div. 358. Also that an ex- ecutor can neither by him promise »or acknowledgment, oral or written, revive a debt against the estate of kjs testator which is already barred by the statute. Butler v. Johnson, 111 N. Y. 204, 18 N. E. 643; Adama ▼. Fassett, 149 N. Y. 61, 65, 43 N. E. 408. See also, Schouler on Wills, Execu- tors and Administrators, Vol. 2, § 1389, and cases there cited, as to dis- regarding the bar of limitations im- posed by general and special statutes. 2. Norton v. Frecker, 1 Atk. 524; Fairfax v. Fairfax, 3 Cranch (U. S. C. C.) 35; Walter v. Kadcliflfe, 2 Desau. (S. C.) 577; Jacson, J., in Scott v. Hancock, 13 Mass. 162; Woods V. Elliott, 49 Miss. 168; Kit- tcr'a Appeal, 23 Pa. 95; Biddle v. Moore, 3 Pa. 178; McFarland's Es- tate, 4 Pa. 149; Fritz v. Thomas, 1 Whart. (Pa.) 66; Hodgdon v. White, 11 N. H. 208; Pollard v. Scears, 28 Ala. 484; Amoskeag Mfg. Co. v. Barnes, 48 N. H. 25; Emerson v. Thompson, 16 Mass. 431; Tunstall v. Pollard, 11 Leigh (Va.) 1; Kennedy's Appeal, 4 Pa. 149; Smith's Estate, 1 Ashm. (Pa.) 352; Steel v. Steel, 12 Pa. 67; Miller v. Dorsey, 9 Md. 317; Batson v. Murrell, 29 Tenn. (10 Humph.) 301; Semmes v. Magruder, 10 Md. 343 ; Thayer y. Hollis, 44 Mass. (3 Met.) 369; Chambers v. Fenne- more, 4 Harr. (Del.) 368; Payne v. Pusey, 71 Ky. (8 Bush.) 564; Barn- wall V. Smith, 58 N. C. (5 Jones Eq.) 168. While an administrator may pay a debt barred by the statute, he cannot pay a debt that accrued under a contract void under the statute of frauds ; and if he does so, he is charge- able with devastavit. Baker v. Ful- ler, 69 Me. 153. The reason is that in the one case a legal liability at some time existed on the part of the deceased to pay the debt, while in the other case no such liability ever existed, and the executor has no power to render a void contract made by his testator valid. Under the statute in Florida, in a suit against an administrator or executor on an open account, the court should ex- punge therefrom every item due five years before the death of a testator or intestate. Patterson v. Cobb, 4 Fla. 481. 894 Statutes of Limitation. tis testator.^ And Lord Hatkerley, in overruling a case,^ re- marks as follows : " It certainly cannot be considered to be law at the present day, that executors paying a debt against the re- covery of which the statute of limitations might be pleaded as a legal bar, render themselves liable to those who are interested in the testator's property." ^ 3. Williamson v. Naylor, 3 Y. & C, 211 note (o) ; Stanhlschmidt v. Lett, 1 Sm. & G. 415; Byrd v. Wells, 40 Miss. 711. Parker, C. J., in Hodg- don V. White, 11 N. H. 208; Scott v. Hancock, 13 Mass. 162. In Mississippi, Byrd v. Wells, supra; Trotter v. Trot- ter, 40 Miss. 704. In Patterson v. Cobb, 4 Fla. 481, it is held that he cannot pay debts that were barred anterior to the granting of adminis- tration, but that he may pay those which became barred after he has qualified. Byrd v. Wells, supra. In Kennedy's Appeal, 4 Pa. 149, the court held that an executor may pay a just debt, though barred by the statute, and that such payment is valid as against the distributees. 4. McCulloeh v. Dawes, 9 D. & Ry. 40. 5. Hill v. Walker, 4 K. & J. 166. The rule is that an executor may, in the exercise of his discretion, pay a debt barred by the statute, although the personal estate of the testator is insuflScient, and that the effect of such payment by him is to throw the burden thereof upon devisees of real estate, upon which the other debts are in consequence thrown. Lowis V. Rumney, L. R. 4 Eq. 451, where Lord Romilly, M. R., remaks: " I think it is much to be regretted that the statute did not destroy the debt, instead of merely taking away the remedy for it. The result is that questions constantly arise, and amongst others, whether an execu- tor may not pay a debt barred by lapse of time. I am of opinion that in the exercise of his discretion he may do so, and that it does not make the slightest difference whether the personal estate is sufficient or insuf- ficient. If it be insufficient, the stat- ute gives the creditor a remedy against the real estate, but that does not interfere with the discretion of the executor." An executoi- may, therefore, at his discretion, pay debts due to others, the remedy for which is barred by lapse of time. Norton v. Frecker, 1 Atk. 533 ; Eao parte Dewdney, 15 Ves. 498; Williamson v. Naylor, 3 Y. & C. 211, note (a) ; Williams on Ex- ecutors (6th ed.), 1664. He may also retain assets of the testator suf- ficient to pay such debts when due to himself. Stahlschmidt v. ,Lett, 1 Sm. & G. 415; Coates v. Coates, 33 Beav. 249; Courtenay v. Williams, 3 Hare 539. This is so even when the debts were barred in the lifetime of the testator. Hill v. Walker, 4 E. & G. 166. And his right to pay- ment is not affected by payment of the testator's effects into court. In Woodyard v. Polsley, 14 W. Va. 211, it was held that when, in a creditor's suit in equity against an administra- tor and the heirs, the court takes into its own hands the administra- ExECUTOES AND AdMIWISTEATOES. 895 He may pay a debt due to himself upon which the statute has run with the same propriety that he may pay one so harred, due to any other person ; and neither the heirs or other distributees of the estate have any remedy against him therefor.® It has tion of the assets by referring the cause to a commissioner to take an account of the debts of the intestate, the statute ceases to run against the creditor, not a formal party to the bill, the bill not being in form a creditor's bill, from the date of such decree in the case; and that, if in such a case the statute has not been specially pleaded nor relied on be- fore the commissioner, and he failed to recognize the statute, and there- fore indorsed no exception upon the report, the appellate court will con- sider the limitation as out of the case, although the report upon its face shows that some of the claims allowed by the commissioner were barred by the statute. Where the testator in his will expressly directs the executor to disregard the stat- ute, there can be no question as to his right to pay all just debts with- out reference to whether they are barred or not, even though the stat- ute requires him to plead the statute of limitations. Campbell v. Shoat- well, 51 Tex. 27. 6. Payne v. Pusey, 71 Ky. (8 Bush) 564. It was also held in this case, and such is the general rule, that, if he is unable to realize his debt out of the personal estate, and seeks to make the heirs liable there- for, the heirs may set up any defense to the claim which the intestate could have set xip including the stat- ute of limitations. When he goes into a court of equity, the adminis- tator stands like any other creditor for the purpose of making his debt out of the heirs, as he has no right or title in that part of the estate any more than any other creditor of the estate. In Massachusetts, in - Scott V. Hancock, 13 Mass. 762, where the period had expired within which an administrator was, under the statute, liable to a suit, no ac- tion having been brought against him, the court refused a license to htm to sell the real estate to pay debts; and generally, if all the debts are barred by the statute ap- plicable to administrators, a license to sell will be denied. Wellman i. Lawrence, 15 Mass. 326; Ex parte Allen, 15 Mass. 58. If granted, it is void, as by permitting the statutory period to elapse without bringing their action, they lose all lien upon the real estate for the payment of their debt. Heath v. Wells, 22 Mass. (5 Pick.) 140; Thompson v. Brown, 16 Mass. 172. And the levy of an execution under a judgment obtain- ed in an action brought after the statutory period has elapsed, is void as against the heirs or devisees. Tliayer v. Hollis, 44 Mass. (3 Met.) 369. But this is not the rule in New York. Thus, in Butler v. John- son, 111 N. Y. 204, 18 N. E. 643, reversing 44 Hun 206, it was held that although a creditor was not bound, as the law stood in 1872, to institute proceedings to compel the sale of real estate to pay debts until after an executor or administrator had rendered an account, such omis- 896 Statutes of LiMiTATioif. been held that if the surplus of the personal estate, after payment of the debts and legacies, is bequeathed to a residuary legatee, and several creditors, although barred by the statute of limita- tions, commence actions therefor against the executor, a court of equity will not, on his refusal to plead the statute, compel him to plead it in favor of the residuary legatee ; '' nor can a residuary- legatee set up the Statute, if the executor refuses to do so, in an action by a creditor to recover his debt.' But this rule is subject to the exception that, when it is sought to charge the real estate of the deceased with the payment of debts due from the estate, either the heir, or a devisee, residuary legatee, or any person interested therein, may interpose the statute.' In Arkansas ^'' and sion did not stop the running of tlie statute as against the debt. An ex- ecutor or administrator is bound to set up the bar of the statute of limitations, and has no authority to allow a claim so barred, and a3 against an estate, a debt barred by the statute is to be regarded as no debt. 7. Castleton v. Fanshaw, Prec. Chan. See also Ex parte Dewdney, 15 Ves. 498. A contrary rule pre- vails in France under the rule of Na- poleon, § 2325: " Les creanciers ou toute autre personne ayant interet a ce que prescription soit acquise peu- vent I' opposer encore que le deiiteur ou le proprietaire y renonoe;" and this rule certainly is more reasonable than that generally adopted by our courts. 8. Briggs V. Wilson, 5 De G. M. & G. 12; Fuller v. Redman, 36 Beav. 614; Alston V. Trollope, L. R. 2 Eq. 205. But under the common practice and decree in England by administra- tion suit, where the bill has been filed and the decree obtained by a resid- uary legatee, if a creditor applies to prove a debt barred by lapse of time, the executor refused to plead the stat- ute, and the plaintiff Insisted upon doing so, it is competent for the plain- tiflF or any other person interested in the fund to take advantage of the statute before the master, notwith- standing the refusal of the executor to interpose it. Shewen v. Vander- horst, 1 Russ. & My. 347 ; Phillips T. Beal, 33 Beav. 36; Moodie v. Ban- nister, 4 Drew. 433; Fuller v. Red- man, 36 Beav. 614. In New York it is held that, In taking an account in the master's office, any party in in- terest may interpose the statute in bar of any claim presented. ' Part- ridge V. Mitchell, 3 Edw. (N. Y.) Ch. 180. In Warren v. Poff, 4 Bradf. (N. Y. ) 260, it was held that heirs and devisees might interpose the statute when it is sought to charge the real estate with the payment of debts of the estate. 9. Partridge v. Mitchell, supra; Warren v. Paff, 4 Bradf. (N. Y. Surr.) 260; Bond v. Smith, 2 Ala. 660. EXECUTOES AND AdMINISTEATOES. 897 in Florida ^* it is held to be the duty of the administrator or executor of an estate to plead the statute where the debt or claim was barred during the lifetime of the intestate, or even where it is so stale as to raise the presuihption of payment from lapse of time.i2 But while it is generally held that an executor is not, unless otherwise provided by statute, obliged to plead the general stat- ute of limitations, yet he is in all cases bound to set up, in oppo- sition to a claim, a statute which limits the time within which a claim may be presented for payment, or within which an action shall be commenced against him in his official capacity to enforce a claim.^^ But while the executor at law must interpose this 10. Rector v. Conway, 30 Ark. 70; Rogers v. Wilson, 13 Ark. 507. 11. Patterson v. Cobb, 4 Fla. 481. 12. See also Briggs v. Wilson, 5 De G. M. & G. 12; Beeching v. Morp- liew, 8 Hare, 129; Hunter v. Baxter, 3 GiflF. 314, for instances when a lega- tee, heir, etc., may interpose the stat- ute. In re feendrick, 107 N. Y. 104, 13 N. E. 762, it was held that the pro- vision of the Code declaring that " the term of eighteen months after the death of a person within this State, against whom a cause of action ex- ists, is not a part of the time limited for the commencement of an action against his executor or administra- tor," does not apply to the provision eyo v. Jones, 19 Wend. (N. Y.) 491. In Williams on Executors, 1889 (7th ed.), it is said: "Where, in assump- sit by an executor, in which all the promises were laid to be made to the testator in his lifetime, the defend- ant pleaded that he did not promise within six years next before the ob- taining of the original writ of the plaintiff, and the plaintiff replied that the original was sued on such a day, and that, within six years before the day of obtaining thereof, that is to say, on such a day, letters testa- mentary were granted to him, by which the plaintiff's action accrued to him within six years; this repli- cation was held bad; because the time of limitation must be computed from the time when the action first accrued to the testator, and not from the time of proving the wUl; for that EXECUTOES AHD AdMINISTRATOES. 905 a new promise by an executor is invalid because it lacks even a gave no new cause of action, and therefore the time of proving the will is perfectly immaterial. Hickman v. Walker, Willes, 27; note to Hods- den V. Harridge, 2 Saund. 64; Hap- good V. Southgate, 21 Vt. 584; War- ren V. Paff, 4 Bradf. Surr. (N. Y.) 260; Conant v. Hitt, 12 Vt. 285; Boyce v. Foote, 19 Wis. 199. " But where to an action by an ad- ministrator for money had and re- ceived to his use by the defendant, who had received the interstate's money after his death, six years and upwards before the commencement of the action, but within six years after letters of administration granted to the plaintiff the defendant pleaded the statute of limitations, and the plaintiff replied the special matter above mentioned; it was held, upon, demurrer, that the statute was no bar, because this was not a cause of action in the Intestate, the money having been received after his death, and the plaintiff's title commenced by taking out letters of administra- tion, before which time no cause of action accrued to him. Gary v. Stephenson, 2 Salk. 421. [See Stan- ford's Case, cited Cro. Jac. 61; Hans- ford V. Elliott, 9 I^igh (Va.) 793. In Dunning v. Ocean Bank, 6 Lans. (N. Y.) 296, the court say: 'If there was no person or party in being at the time the money in question came to the possession of the defendant, who could lawfully demand and re- ceive the same, and in whom a right for the recovery thereof vested, or since, » * » the action is not barred. This is well settled, until there is some one entitled to demand and take, there is no obligation to pay, and no promise can be implied. The statute does not begin to operate until then.' Davis v. Gare, 6 N. Y. 124; Bucklin v. Ford, 5 Barb. (N. Y.) 395; Vaughn v. Mohawk Ins. Go., 13 Wend. (N. Y.) 267; Richards V. Richards, 2 B. & Aid. 447; Piggott V. Rush, 4 Ad. & El. 912; Witt v. Elmore, 2 Bailey (S. G.) 595; Fer- gusson V. Fyffe, 8 CI. & F. 131; John- ston v. Humphrys, 12 S. & R. (Pa.) 395; Geiger v. Brown, 4 MoCord (S. G.) 418; Fishwick v. Sewall, 4 H. & J. (Md.) 393; Jones v. Brodie, 3 Mon. (Ky.) 354; Grubb v. Clayton, 2 Hayw. (N. C.) 378.] So where an action was brought by an adminis- trator against the acceptors of bills of exchange payable to the intestate, and accepted after his death, but be- fore the grant of letters of adminis- tration, it was held that the statute ran only from the grant of the let- ters. Murray v. East India Com- pany, 5 B. & Aid. 204; Pratt v. •Swaine, 8 B. & C. 285; s. c. 1 M. & Ry. 351; Perry v. Jenkins, 1 My. and Cr. 18. [In many of the States, express provision is now made by statute as to the time when the statute shall attach to a claim in favor of a de- ceased creditor, and in some instan- ces the statute is saved where it had run only thirty or a certain other specified number of days before the creditor's death.] " It must be observed that where, in assumpsit by an executor, on a contract made with his testator, all the promises in the declaration were laid to be made to the testator, and the defendant pleaded the statute of 906 Statutes of Limitation. moral consideration to support it. But, while an acknowledgment limitations, the plaintiff could not in his replication set forth a promise made to himself within six years, without being guilty of a departure, any more than he could in such case give evidence of a promise made to himself within six years upon an is- sue joined on the plea of the statute of limitations. Hickman v. Walker, Willes, 29; Dean v. Crane, 6 Mod. 309; Executors of the Duke of Marl- borough V. Widmore, 2 Stra. 890; 2 Saund. 63 I. However, in Heylin v. Hastings, Garth. 471, it is said to have been admitted that a promise made to an executor is suflScient to prove the issue of assumpsit to the testator within six years; because the promise does not give any new cause of action, but only revives the old cause, and is of no other use but to prevent the bar by the statute of limitations. But this seems not to be well founded; and it has since been determined, that evidence of an acknowledgment by the defendant within six years of an old existing debt, of above six years' standing, due to the plaintiff's intestate, but which acknowledgment was made af- ter the intestate's death, will not sup- port a count by the administrator, laying the promise to be made to his intestate. Sarell v. Wine, 3 East, 409; s. p. Ward v. Hunter, 6 Taunt. 210; s. p. by Bayley, J., in Short v. M'Carthy, 3 B. & Aid. 626. [This rule has been adopted in Pennsyl- vania, Jones V. Moore, 5 Binn. (Pa.) 573; but not in New Hampshire, Buswell V. Roby, 3 N. H. 467; nor Massachusetts, Baxter v. Penniman, 8 Mass. 134.] Therefore, where it was necessary to rely on an acknowl- edgment, made since the death of the testator, to bar the statute, counts were required in the declaration lay- ing promises to the plaintiff as exec- utor. As to what is sufficient evi- dence of an account stated with the plaintiff as executor, see Purdon v. Purdon, 10 M. & W. 562. "Accordingly, if an executor brought an action on a bill or note, and intended to rely on an acknowl- edgment or promise made to himself in order to bar the statute, he had to state in his declaration th« making of the bill or note, and must then have proceeded to aver that, after the death of his testator or intestate, the defendant promised him (the plaintiff) as executor or administra- tor to pay him. And where the dec- laration was so framed, such prom- ises might have been denized by a plea of non assumpsit. For the mere pro- duction and proof of the note would not prove the promise as made to the executors, as it would if the promise were laid as made to the tes- tator. The right of action indeed is transferred to the executor, but no promise is implied by law io pay him; otherwise the statute of limita- tions would run from the death of the payee, and not from the time of the note becoming due. In order, therefore, to support the action, there must be an express promise to the executor, that is to say, an ex- press promise as contradistinguished from a promise contained in the note itself, or anything implied out of it; and the cause of action is the exist- ence of the note, with the express EXECUTOES AND ADMINISTEATOBa. 907 by an executor will not take a debt against the estate out of the promise to the executor to pay the amount of it; whereas the rule is confined to cases where the action is only on the note. Timmis v. Piatt, 2 M. & W. 720; Gilbert v. Piatt, 5 Dowl. 748; Eolleston v. Dixon, 2 Dowl. & L. 892. The effect of the plea of non assumpsit is in such a ease to admit that the bill or note was signed by the defendant, but to deny that he made any promise to the executor. " In Clark v. Hooper, 10 Bing. 840, 4 M. & iSc. 353, payment of interest on a promissory note to an adminis- trator who had omitted to take out administration in the diocese in which the note was a honum no- tahile, was held a sufficient acknowl- edgment of the debt to bar the stat- ute. Upon this decision, see Stamford, S; & B. Banking Co. v. Smith, [1892] 1 Q. B. 765, supra, % 103, n. " If an executor sues in assumpsit, within a year after the death of his testator, the six years not being elapsed before, though they expire within that period, yet it is held to be sufficient to take the case out of the statute. Tidd, 28 (9th ed.), cit- ing Cawer v. James, Bull, N. P. 150. But see s. c. reported in Willes, 255 nomine Karver v. James. But the contrary was held in Penny v. Brice, 18 C. B. N. S. 393. " Where a party brings an action before the expiration of six years, and dies before judgment, the six years being then expired, it has been held that his executor or administra- tor may, within the equity of the fourth section of the statute of limi- tations (21 Jac. I., c. 16), bring a new action, Matthews v. Phillips, 3 Salk. 425; Kinsey v. Heyward, 1 Lutw. 260; provided he does it re- cently, or within a reasonable time. No precise time is fixed as to what shall be deemed a. reasonable time; but it should seem that the stat- ute is the best guide upon the sub- ject, and as that provides that a new action, in the cases enumerated in it, must be commenced within a year so an executor ought also to bring a new action within that period. 2 Saund. 64, note to Hodsden v. Har- ridge. [In many of the States of this country express provision is made to save the statute to a party who has brought his action in season, but which has failed by reason of some technical or other ground other than the voluntary act of the party, and the period within which a fresh ac- tion may be brought is generally fixed. See Appendix.) In Kinsey v. Heyward, 1 Ld. Eaym. 434, a year is said to be a reasonable time, and the Court of King's Bench appears to be of this opinion in Wilcox v. Huggins, 2 Str. 907, Pitzg. 170, 289, where ~ it is said that the most that had ever been allowod was a year, and that within the equity of the proviso in the stat- ute, which gives the plaintiff a year to commence a new action, where the judgment is arrested or reversed; and that they would not go a moment further, for it would let in all the inconveniences which the stat- ute was made to avoid. Indeed, if the executor' had been retarded by suits about the will or administra- 908 Statutes of Limitation. statute, an acknowledgment made to him by a debtor to the tion, and had shown that in pleading it would have been otherwise, be- cause the neglect would then have been accounted for. And Lee, J., said: 'I think what is or is not a recent prosecution in a case of this nature is to be deter- mined by the discretion of the court from the circumstances of the case; but, generally, the year in the statute is a good direction.' How- ever, in Lethbridge v. Chapman, 15 Vin. Abr. 103, in mwrgine, the ac- tion was allowed to be brought with- in fourteen months after the testa- tor's death, though no reason was as- signed for it. Upon the whole, there- fore, it was deemed prudent for the executor to bring a new action as soon as he possibly could after the death of his testator, and at all events not to delay it beyond a year. 3 Saund. 64 6, note. But in Curlewis v. Morn- ington, 7 E. & B. 283, it was express- ly held that the executor was not bound to the year, if under the cir- cumstances he can fairly be said to have used due diligence. , " Again, if an executor brought as- sumpsit, but died before judgment and the six years run, his executor might, notwithstanding, bring a fresh action, so as he brought it in a rea- sonable time, which is to be decided at the discretion of the justices upon the circumstances of the case. Bull, N. P. 150 o. " The principle of these cases, ac- cording to the judgment of Lord Chief Justice Treby, in the case of Kinsey v. HeyTvard, is, that when once the proviso in the statute of limitations is complied with by the commencement of an action within due time, the party is out of the purview of the act, and set at lib- erty out of the restraint of the said statute. But the true ground of these decisions appears to be that they proceed upon the equity of the fourth section of the statute, and that the courts have extended thai; section to the case of an executor whose testator has died pending an action brought by him; which, though not within the words of it, was evidently within the mischief. 3 Ad. & El. 403, 404. In Adam v. The Inhabitants of the City of Bristol, Z Ad. & El. 389, the premises of A., a termor, having been burnt by a riot- ous assembly, A. complied with all the requisites of the statute 7 & 8 Geo. IV., c. 31, and commenced an ac- tion against the inhabitants of the city and county within three months from the offense. Before verdict or judgment, and after the expiration of the three months, A. died. His executrix commenced an action against the inhabitants on the sev- enth day from A.'s death. And the Court of King's Bench held that, supposing an exeoutrix entitled to sue in any such ease (as to which the court gave no opinion), the action, having been commenced more than three months from the offense, was too late under the provision of sec- tion 3 of the statute, and that there was no analogy between this case and the above decisions on the general statute of limitations. But the same equitable construction that has been applied to the fourth section of the statute of James has been followed Executors and Administeatoes. 909 estate will remove the bar as to such debt f^ and it has even been held that payments made by a debtor to the estate, to a person who had not then been, but was subsequently appointed adminis- trator, was sufficient to revive the debt and remove the statute bar.^' In any event, if an acknowledgment of an executor or administrator is relied on to take a debt out of the statute, it must be shown to have been made by him in his representative capacity.^* The declaration should contain a count upon a prom- ise by the executor or administrator as such,^^ although in l^ew Hampshire this is held to be unnecessary.^* In accordance with this rule it has been held by the English courts that, if an action is brought against an executor or administrator on a bill or note given by the testator or intestate, and the declaration alleges a promise by the defendant to pay the bill or note, such promise may be denied by a plea of non assumpsit, notwithstanding the rule abolishing the plea of non assumpsit to a declaration on a bill or note.^^ However, it is said to have been held ^' that if the as to the limitation of actions on bonds, etc., imposed by the Stat. 3 & 4 Wm. IV., c. 42, § 3; Sturgis v. Darrell, 4 H. & N. 622; 6 id. 120. " Where the right of action ac- crued to the testator during his resi- dence abroad, and he died abroad, never having returned after the ac- crual thereof, the statute is no bar to an action by his executors, although it accrued more than six years before action was brought; at all events if it is brought within six years after his death. Townsend v. Deacon, 3 Exch. 706. See also Forbes v. Smith, 11 Exch. 161." Hammon v Huntley, 4 Cow. (N. Y.) 493; Cayuga Bank v. Bennett, 5 Hill (N. Y.) 236; For- syth V. Ganson, 5 Wend. (N. Y. ) 558; Oakes v. Mitchell, 15 Me. 360; M'Intire v. Morris, 14 Wend. (N. Y.) 90; Patterson v. Cobb, 4 Fla. 481; Moore v. Porcher, Bailey (S. C.) Eq. 195; Eeigne v. Desportes, Dudley (S. C.) 118; M'Teer v. Fer- guson, Riley (S. C) 159; Pearce v. Zimmerman, Harp. (S. C.) 305; Henderson v. Ilsley, 19 Miss. 9; Fisher v. Duncan, 1 H. & M. (Va.) 563; Oakes v. Mitchell, 15 Me. 360; Banker v. Athearn, 35 id. 364. 38. Martin v. Williams, 17 Johns. (N. Y.) 330; Townsend v. Ingersoll, 12 Abb. Pr. (N. Y.) N. S. 354; Jones V. Moore, 5 Binn. (Pa.) 573. 33. Townsend v. Ingersoll, supra. 34. Scholey v. Walton, 12 M. & W. 510. 35. Browning v. Paris, 5 M. & W. 117. 36. Buswell v. Roby, 3 N. H. 467. 37. Rolleston v. Dixon, 2 Dowl. & L. 892. 38. Poile V. , Exor. Sitt. after Tr. T. 1823, coram Abbott, C. J., 2 910 Statutes of Limitation. declaration charges the executor, on a promise made by his tes- tator, and the defendant pleads the statute of limitations, to which the plaintiff replies, that the testator did promise within six years; proof on the part of the plaintiff, that the executor promised within six years, and that the testator's death was within this period, will support the count in the declaration; for that the executor's promise shows a liability to pay, existing before the time of the testator's death, and the law will imply a promise by the testator to pay what he was liable to pay. The mere existence of a debt owing by the testator or intestate is not evidence of a promise to pay by the executor or admin- istrator, as executor or administrator.^^ Hence, as against an executor or administrator, an acknowledgment merely by him of the debt's existence is not suiBcient to take the case out of the statute ; there must be an express promise.*" In an action of assumpsit against several executors, who pleaded the general issue and the statute of limitations, Abbott, C. J., held, that neither an acknowledgment of the debt by all the executors, nor an ex- press promise by one of them, took the case out of the statute; there ought to have been an express promise by all.^^ In l^ew Jersey it has been held that a sole executor has the power, by a new promise, to remove the bar of the statute, and that all of several, or one of two, executors or administrators may bind the estate by a new promise without making the representatives personally liable.*^ Phil. Ev. 531, 6tli ed. But this ease he thereby binds the testator's es- is omitted in the seventh edition. tate, and the creditor may recover 39. Atkins v. Tregold, 2 B. & C. 23, judgment against him thereon in an by Abbott, C. J. action against all the executors, 40. Tullock V. Dunn, Ry. & M. 416. while § 2 enables the creditor to sue 41. Scholey v. Walton, 12 M. & W. such executor alone. In re Macdon- 610. aid, [1897] 2 Ch. 181; Astbury v. By the weight of English author- Astbury, [1898] 2 Ch. 111. As to- ity an acknowledgment or promise payment of interest by one of several by one of several executors did not mortgagees, see Bailie v. Irwin, bind the others before Lord Tenter- [1897] 2 I. R. 614. den's Act; but, under that statute, 42. Shreve v. Joyce, 36 N. J. L. 44. ExECUTOES Ain) Admijstisteatoes. 911 § 191. What acknowledgment by an executor is sufficient. It was formerly held in England ^ that an acknowledgment or promise by an executor, in order to be operative to remove the statute bar, must be express, or at least of a more definite char- acter than one which would be sufficient to bind the original debtor if it had been made by him. But under the present theory as to acknowledgments it would imdoubtedly be held in England, as well as in the States where the English doctrine as to the effect of an acknowledgment made by an executor pre- vails, that an acknowledgment which would be binding on the original debtor, would also be sufficient if made by his executor.** § 192. Where executor is also devisee in trust. It has been held in England that, where an executor acts in a double capacity, as where he is both executor and trustee of real estate, and in that capacity makes a payment which amounts to an acknowledgment of a debt in his character of executor, it does not revive a debt against the realty as in such a case no principle of marshaling exists;*^ and such is doubtless the rule in all those States where the acknowledgment of an executor is regarded as sufficient to revive a debt, except where real estate and personal property are put upon the same footing in the hands of an executor. § 193. Where statute has run against debt before testator's death. Where the statute has run against a debt due the estate, be- fore the death of the testator although upon the very day of his death, it will be barred, although the executor brings an action within a reasonable time after his death,*^ unless it is saved by the express provisions of the statute, as is the case in several of the States.*'' 43. Tullock V. Dunn, Ry. & Moo. 45. Fordham v. Wallis, 10 Hare, 416. 217. 44. Banning on Limitations, 228; 46. Penny v. Brice, 18 C. B. N. S. Briggs V. Wilson, 5 De G. il. & G. 12. 393. 47. The general rule, sometimes 912 Statutes of Limitation. § 194. When statute has begun to run during the life of testator. Except in those States where the statute otherwise provides, when the statute has begun to run upon a claim during the life of a creditor it is not suspended by his death, although no per- sonal representative has been appointed;^* but, when the statute has not begun to run during his life, it will not begin to run against his estate until an executor or administrator has been duly appointed and qualified, upon the principle that the statute can- not begin to run until there is a person in existence capable of suing or being sued upon the claim.*' regulated by State statutes, as in Ne- vada (§ 2898), and Montana {§ 156), now is that an executor or ad- ministrator cannot revive claims against his testator or intestate which were fcarred before the latter's death. Stiles v. Laurel Folk Oil & Coal Co., 47 W. Va. 838, 35 S. E. 986; Bambrick v. Bambriek, 157 Mo. 423, 58 S. W. 8; Jones v. Powning, 25 Nev. 399, 60 Pac. 833; In re Mouillerat's Estate, 14 Mont. 245, 36 Pac. 185; Schlieker v. Hemenway, 110 Cal. 579, 52 Am. St. Rep. 116, n., 42 Pac. 1063. See Sehouler on Wills, Executors and Administrators, Vol. 2, §§ 1390a, and cases there cited. 48. Nicks V. Martindale, Harp. (S. C.) 135; Abbott v. McElroy, 18 Miss. 100; Davis v. Garr, 6 N. Y. 124; Burnett v. Bryan, 6 N. J. L. 377; ifeull V. Deatly, 70 Ky. (7 Bush) 687; Baker v. Brown, 18 111. 91; Byrd v. Byrd, 28 Miss. 144; Tynan v. Walker, 35 Cal. 634; Brown v. Mer- rick, 16 Ark. 612; Dekay v. Darrah, 14 N. J. L. 288; Jackson v. Hitt, 13 Vt. 285; Stewart v. Spedden, 5 Md. 433 ; Hayman v. Keally, 3 Cranch C. C. 325. In Young v. Mackall, 4 Md. 362, a right of action accrued on one of two bonds in 1834, and on the other in 1835 and the obligee died in 1837, in which year his executor filed a bill against the obligor, which suit abated by the death of the complain- ant in 1841. The obligor died in 1846. An administrator de bonis non on the obligee's estate was appointed in October, 1849, and the claim on the bond was filed the same month. It was held that as the Maryland statute (running twelve years on bonds) had begun to run in the life- time of the obligee, none of the facts above stated stopped its operation. If a suit is abated and not revived, it takes no time out of the statute. Boatwright v. Boatwright, L. R. 17 Eq. 71; Rhodes v. Smethurst," 4 M. & W. 42. 49. Jolliffe V. Pitt, 2 Vern. 694; Burdick v. Garrick, L. R. 5 Ch. 233; Webster v. Webster, 10 Ves. 93. The statute is suspended until the ap- pointment of an administrator. Briggs V. Thomas, 32 Vt. 176; Toby V. Allen, 3 Kan. 399; Etter v. Finn, 12 Ark. 632; MoKenzie v. Hill, 51 Mo. 303; Hull v. Deatly, supra; Nel- son V. Herkell, 30 Kan. 456; Whit- ney V. State, 52 Miss. 732. EXECUTOES AND ADMINISTRATORS. 913 Thus, where property was acquired after the death of the intestate, it has heen held that the statute does not commence to run against an action of trover therefor until administration is granted ;^ and where the statute gives a remedy to the executor or administrator of an estate of a person killed by the negligence of another, and also provides that the action shall be brought within one year from the time when the right of action accrued, the action is not treated as having accrued until the appointment of an administrator f^ but the rule would be otherwise if the stat- ute provided that an action therefor should be brought within one year from the time of such intestate's death, because in that case the statute attaches immediately, and the bar becomes com- plete at the end of a full year from that time. There is also another element that enters into cases of this character, and that is, that the statute gives the right to sue, and no such right exists independent thereof, it only exists in the manner and for the period provided by the statute; and, strictly speaking, the pro- vision as to the period within which action must be brought is a condition imposed upon the right, rather than a limitation, and unless the statute' is complied with, the right is defeated, and can never be revived either by an acknowledgment or promise.^ The 50. Johnson v. Wren, 3 Stew, action arose. The injury was inflict- (Ala.) 172; dark v. Hardiman, 2 ed Dec. 29, 1864, and death ensued a Leigh (Va.) 347; Bucklln v. Ford, 5 few days afterwards. The action B.Trb. (N. Y.) 393. was not commenced until June 14, 51. Andrews v. Hartford, etc., R. 1866, considerably more than one Co., 34 Conn. 57; Sherman v. West- year after the plaintiff's intestate- ern, etc., Co., 24 Iowa, 515. died, but within one year after 52. In Andrews v. Hartford, etc., letters of administration were R. Co., supra, an action was brought taken out upon his estate. The against the defendant to recover un- defendants insisted that, as the ac- der a statute of the State, for injur- tion was not commenced within one ies inflicted by the negligence of the year after the intestate's death, the defendant, upon the plaintiff's intes- remedy was lost. The court held tate, of which he subsequently died, that the remedy was not lost, because The statute provided a remedy in the cause of action did not arise un- such cases, but limited the rij;ht of til an executor or administrator waa action to one year after the cause of appointed upon the estate. " The 58 914 Statutes of Limitation'. Tule is well settled, tliat where a cause of action does not accrue until after the death of the creditor or claimant the statute does not begin to run until administration is granted ;^^ but if it accrues before his death, the running of the statute is not sus- pended,^* unless express provision to that effect is made in the statute. In the case of an infant, or indeed any person under a statutory disability at the time of their death, the statute does not begin to run until administration is granted.^^ The circum- cause of action," said Butler, J., "would have been perfect on the hap- pening of the death, and would have been barred at the end of one year from the happening of the event, if an ordinary case, or there had been an executor. But it is a rule of law, recognized by the court (Hobart v. Connecticut Turnpike Co., 15 Conn. 145), that a cause of action accruing to an administrator after the death of the intestate is not complete, and does not arise and exist so that the statute can begin to run upon it until an administrator is appointed who can bring suit. And the legislature seem to have had that rule in view when they enacted the statute; for they did not say that the action should be barred unless commenced within one year from the death, or the happening of the events for which it is given, but ' unless com- menced within one year after the cause of action shall have arisen.' Inasmuch, then, as under a well-set- tled rule no cause of action can arise and exist in favor of an administra- tor until he comes into existence as such and this suit was brought with- in one year after the plaintiff re- ceived his appointment, it was not barred." In Sherman v. Western, etc., R. R. Co., supra, the same rule was adopted in a case arising under a similar statute, where the plain- tiflf's intestate was thrown from a boat and capsized by reason of the negligence of the employees of the de- fendant stage company, whose pas- senger she was, and after struggling ten minutes, more or less, to save her life, was drowned. See also Wood V. Ford, 29 Miss. 57, where a similar rule was applied. 53. Hobart v. Connecticut Turn- pike Co., supra; Beauchamp v. Mudd, 5 Ky. (3 Bibb.) 537; Abbott v. Mc. Elroy, 18 Miss. 100'; Fishwick v. Sewell, 4 H. & J. (M'd.) 393. In general, limitation does not be- gin to run if there is no administra- tion on a decedent's estate when the cause of action accrues. See Bull- ard's Estate, 116 Cal. 355, 48 Pac. 219. In Kansas, it is held t^iat the statute begins to run against a de- cedent's estate after the lapse of a reasonable time, though there is no administration. Kulp v. Kulp, 51 Kan. 341, 33 Pac. 1118, 21 L. R. A. 550; Black v. Elliott, 63 Kan. 211, 65 Pac. 215, 88 Am. St. Rep. 339. 54. Nicks v. Martindale, Harp. (S. C.) 135; Burnet v. Bryan, 6 N. J. L. 377; Davis v. Garr, 6 N. Y. 124; Goodhue v. Barnwell, Rice (S. C.) Ch. 198. 55. Goodhue v. Barnwell, supra. In re Tilden, 98 N. Y. 434, it was Executors and Admiwisteatoes. 915 stance that an executor is named in the will does not change the rule, as the statute does not attach until he has been duly quali- fied to act as such by proof of the will f^ and it seems that when held that when there have been sev- eral accountings of executors, and it appears that each subsequent ac- counting was based upon the result as found upon the preceding one, that the validity of each previous ac- counting was unchallenged by any objection upon the one next succeed- ing, and that the last accounting was based upon a citation duly is- sued and served upon the parties in- terested, and upon proceedings regu- larly conducted, it is binding and conclusive upon all the parties as to the validity of the prior decrees. 56. Forrest v. Douglas, 4 Bing. 704; Garland v. Milling, 6 Ga. 310; Ellison V. Allen, 8 Fla. 306; Hobart V. Conn. Turnpike Co., 15 Conn. 1,45. The view adopted in the text, that where a statute gives a right, and provides a period within which it shall be enforced, the clause relating to the time of its enforcement is a condition rather than a limitation, is sustained in Pittsburgh, etc., E. Co. V. Hine, 25 Ohio St. 639, and in Boyd V. Clark, 8 Fed. 849, where Brown, D. J., said : " The lew loci contrac- tus governs the rights of parties, but the lex fori determines the remedy. The principle has been applied in a large number of cases arising upon contracts; but in Dennick v. Central E. Co. of N. J., 103 U. S. 11, 36 L. Ed. 439, it was applied to a statute of this description, where the admin- istrator brought his action in an- other State. An almost unbroken series of adjudications has also e;s- tablished that the time within which an action may be brought relates gen- erally to the remedy, and must be de- termined by the law of the forum. Hence, it would follow that if this statute contained no limitation of time within which an action must be brought, and the time had been left to depend upon the general statutes of limitations in the Province of On- tario, it is clear that we should have disregarded such statute, and per- mitted the plaintiff to bring this ac- tion at any time before actions of this description would be barred by the statutes of this State. "An exception to this general rule, however, is suggested in Story's Con. flict of Laws, sec. 583, of cases where the statutes of limitation or pre- scription of a particular country do not only extinguish the right of ac- tion, but the claim of title itself, ipso facto, and declare it a nullity after the lapse of the prescribed period; and the parties are within the juris- diction during the whole of that per- iod, so that it has actually and fully operated upon the case. " The eases of Shelby v. Guy, 34 U. S. (11 Wheat.) 361, 6 L. Ed. 495; Goodman v. Munks, 8 Port. (Ala.) 84 (overruled by Jones v. Jones, 18 Ala. 348 ) ; Brown v. Brown, 5 Ala. 508; and Fears v. Sykes, 35 Miss. 633, do in fact lend support to this distinction; the general tenor of these cases being to the effect that where the statute of one State de- clares that the possession of personal property for a certain period vests an absolute title, such prescription 916 Statutes of Limitation. an executor accepts the trust under the will the statute begins to run from the time of acceptance, and not from the time of giving public notice thereof.^' But it has been held in North Carolina that as the executor's right to the personal property of his testa- tor commences at the death of the testator, the statute begins to run against him from that time.^* But such is not the rule gen- will be enforced in every other State to which the property may be re- moved or wherein the question may arise. " In the Pittsburgh, etc., R. Co. v. Hine, 25 Ohio St. 629, it was held that under an act requiring compen- sation for causing death by wrongful act, neglect, or default, which gave a right of action, provided such ac- tion should be commenced within two years after the death of such de- ceased person, the proviso was a con- dition qualifying the right of action, and not a mere limitation on the remedy. It was further held that the plaintiff's right must be deter- mined as the act originally stood, and was therefore subject to the re- strictions contained in the proviso, and the action, not having been brought within the two years, could not be sustained. The case differs from the one under consideration only in the fact that the limitation was contained in a proviso to the section directing in whose name the action should be brought. " In Eastwood v. Kennedy, 44 Md. 563, it was held that where a statute of the United States for the District of Columbia gave a claim for the re- covery of usurious interest, provided suit to recover the same be brought within one year after the payment ot such interest, it would not be com- petent for a party to recover in Maryland after the lapse of a year, and that the courts of that State were bound to respect and apply the limitations contained in the act. The cases of Baker v. Stonebraker, 36 Mo. 338, 349, and Huber v. Stiener, 3 Bing. N. C. 202, are somewhat analo- gous, but throw little additional light upon the question. " We are compelled then to deal with it to a certain extent as an or- iginal question. The true rule I con- ceive to be this: that where a statute gives a right of action unknown to the common law, and either in a pro- viso to the section conferring the right or in a separate section limits the time within which an action shall be brought, such limitation is opera- tive in any other jurisdiction iu which action may be brought." 57. Sewall v. Valentine, 23 Mass. (6 Pick.) 276. 58. Arnold v. Arnold, 35 N. C. (13 Ired.) 174. The statute is a good de- fense where time has' once begun to run in favor of a debtor to an estate in the lifetime of the intestate, the absence of a personal representative in such a case not being sufficient to make an exception to the almost uni- versal rule that when time has once commenced to run it will never cease. Rhodes v. Smethurst, 4 M. & W. 42; Freake v. Cranefeldt, 3 Myl. & Cr. 499; 2 Wms. Saund. 63 k; Sturgis v. Darell, 4 H. & N. 622. This rule. ExECUTOES AND AdMINISTEATOES. 917 crally adopted.^' The appointment of an administrator in one State does not put the statute in motion either for or against the estate in another State; bud;, as to all property or claims existing in such other jurisdiction, the statute remains suspended until proof of the will, or the appointment of an administrator there.®" however, as we shall see, is not abso- lutely without exception. And where an action abated by the death of a defendant debtor, it was allowed to be continued a reasonable time, though the statutory period had elapsed in the interval. Curlewis v. Mornington, 7 El. & Bl. 283. In Eng- land, the rule of the North Caro- lina case is adopted where the creditor has not died intestate, but has appointed an executor, and that executor simply neglects to prove the will. There does not then exist any saving until proof. The reason of this distinction is that while an ad- ministrator derives his title wholly from the Court of Probate, and has no title to the property of the de- ceased till the grant of letters of ad- ministration is made out, an execu- tor has a title immediately by virtue of the will. WooUey v. Clark, 5 B. & AM. 744. If, however, such execu- tor eventually renounces probate, in- asmuch as such renunciation relates back to the death of the testator, it seems doubtful how far the testator's estate could be held to have been rep- resented at all, or time to have com- menced to run against it. In fact, it may be argued that though, when an executor delays to prove a testa- tor's will, time runs against him from the testator's death, yet that if he eventually fails to prove at all, and an administrator is appointed, time does not run against the latter until his appointment. But upon this point there is no direct authority. 59. Garland v. Milling, supra; For- rest V. Douglas, supra. 60. Lee v. Cause, 24 N. C. (2 Ired. L.) 440. In Hobart v. Conn. Turu- pix.e Co., supra, the testatrix died in New York owning stock in the de- fendant company, upon which certain dividends had been declared. The court held that the statute did not begin to run until administration had been granted in Connecticut, and that the proving of the will and qualification of the executor in New York did not affect the question, say- ing: " When did the statute begin to run against this claim? Was it when the dividends accrued, , or when administration was granted on her estate? And this precise question was decided in the case of Murray v. East India Co., 5 B. & Aid. 204, in which Abbott, C. J., giving the unanimous opinion of the Court of King's Bench, after referring to the authorities, and coming to the con- clusion that they sustained the claim of the plaintiflf that the statute did not begin to run until the granting of administration, says : ' Now, inde- pendently of authority, we think it cannot be said that a cause of action exists unless there be also a person in existence capable of suing.' " See also Perry v. Jenkins, 1 Myl. & Cr. 118; Cary v. Stephenson, 3 Salk. 431; Burdick v. Garrick, L. R, 5 Ch. 241. \ 918 Statutes of Limitation. § 195. Executors de son tort. An important exception to the rule previously stated exists where the defendant has taken possession of the property of the deceased debtor as executor de son tori, and subsequently obtains letters of administration. In such case time begins to run in favor of the estate from the time virhen the defendant became such executor de son tort, because such an executor can be sued either at law or in equity as soon as he assumes to act as such,''^ and his previous acts 61. In Webster v. Webster, 10 Veg. 93, the plea of the statute was al- lowed by an executor whose testator died in 1788, but of whose will no probate had been taken out until 1802, and within six years of the fil- ing of the bill, inasmuch as the de- fendant, the executor, had possessed himself of the testator's personal es- tate, and therefore might have been sued as executor de son tort pre- viously to 1802. In Boatwright v. Boatwright, L. E. 17 Eq. 71, the case of Webster v. Webster was quoted as an authority, and as applicable to a case where the executor de son tort and the per- son who subsequently proved the will of a deceased debtor were diflferent persons. This case was mainly de- cided on the ground that the cause of action had already accrued in the testator's lifetime. There is conflict of opinion as to how far an executor de son tort may be sued alone, without the appointment of a legal personal representative to his testator. In Rayner v. Koehler, L. R. 14 Eq. 362, a bill was thus sustained against an executrix de son tort. In Gary v. Hills, L. R. 15 Eq. 79, Lord Romilly, M. R., declined to follow Rayner v. Koehler, and in Roswell v. Morris, Sir G. Jessel, M. R., did the same. L. R. 17 Eq. 20. And see Penny v. Watts, 3 Ph. 149; Beard- more V. Gregory, 2 H. & M. 491; Coote V. Whittington, L. R. 16 Eq. 534. See also In re Lovett, 3 Ch. D. 198, and held that the law of the court was that a suit for administra- tion is defective when the legal per- sonal representative was not before it. This may possibly diminish the authority of cases where a plaintiff has been denied a fresh right on the appointment of a legal personal rep- resentative of his debtor, on the ground that he could have proceeded in the absence of such legal personal representative to recover his debt against the executor de son tort; a course which, in equity at all events, will be no longer open to him. In Boatwright v. Boatwright, supra, the Master of the Rolls remarked: "I think it must be held, when the point comes to be decided, that if the rem- edy against the personal estate is barred, and the remedy against the real estate has been kept alive by reason of payment, that the court will find some means of making the real estate liable, although the credi- tor cannot make the legal represen- tative a party to the suit." Banning on Limitations, 331-233. ExECUTOES AND Administeatoes. 919 are legalized by his taking out letters of administration.*^ But it seems that an express promise to pay a debt due from the estate, made by an executor de son tort, is not binding so as to suspend or remove the statute bar, although he is subsequently appointed ad- ministrator ;''^ for, although a person who undertakes to discharge and settle accounts of the estate of a deceased person before he is appointed administrator will, after his appointment as such, be responsible for his acts, upon the ground that his appointment retroacts to the time of the intestate's death,*^ yet this .rule is not carried to such an extent that the estate can be prejudiced by his acts. Such executors are liable only to the extent of the assets which come into their hands f^ and while he is liable as executor, and may use proper means to protect the assets in his hands, yet he possesses none of the rights or powers which an executor de- rives on account of his office.®" They are liable to account to distributees or legatees like other executors, and cannot rely on the statute of limitations to protect them from such liability."^ An executor de son tort of an executor de son tort represents the first testator, so that, where property was held in trust by him, the statute of limitations does not begin to run in his favor until the relationship is ended.®^ § 196. Statutory provisions relative to suits in favor of deced- ents' estates. In Maine, provision is made that, in case of the death of a party entitled to bring an action before or within thirty days after 62. Manger v. Eyan, 19 Mo. 196; C.) 63; Hill v. Henderson, 21 Miss. Priest V. Watkins, 2 Hill (N. Y.) 688; Mitchell v. Lunt, 4 Mass. 654. 225; Shillabaer v. Wyman, 15 Mass. 66. M'Intire v. Carson, 9 N. C. (3 322; Rattoon v. Overacker, 8 Johns. Hawks) 544; Meigan v. M'Donough, (N. Y.) 126; Alvord v. Marsh, 94 10 Watts (Pa.) 287. Mass. (13 Allen) 603. 67. Hansford v. Elliott, 9 Leigh 63. Haselden v. Whitesides, 2 (Va.) 79. Strobh. (S. C.) L. 353. 68. Dawson v. Callaway, 18 Ga. 64. Alvord v. Marsh, supra. 57a 65. Cook V. Sanders, 15 Rich. (S. 920 Statutes of Limitation. 1 the statute has run, and the cause of action survives, an action may be commenced therefor against the executor or administrator within two years after his appointment, and not afterwards;^* and practically the same provision exists in Vermont, Massachu- Betts, and Michigan.™ In Rhode Island,'^ where a person en- titled to bring an action dies before the statute has run or within sixty days thereafter, and the cause of action survives, an ac-' tion may be brought by his executor or administrator within one year after the granting of letters testamentary or adminis- tration. In New Tork,'^^ where a person entitled to bring an action dies before the statute has run upon the claim, an action may be commenced by his representatives any time within the statutory period, or within one year after the death of such per- son; and practically the same provision exists in the States of Mississippi, Missouri, Connecticut, South Carolina, Illinois, Arkansas, Colorado, California, Oregon, Florida, Iowa, Kentucky, Nevada, Dakota, Idaho, New Mexico, and Minnesota, except that in the latter State six months between the death of the party and granting administration and six months thereafter are not to be included in computing the statutory period.'^ In New Jersey,'* six months from the time of death is given where the statute has not already run, in all actions of trespass, trover, replevin, debt on simple contract, for arrearages of rent, on a parol demise, account, upon the case, except for slander, and 69. Appendix, Maine. indemnity is proper, he must at least 70. See Appendix. ask for it; and at any rate he takes 71. Appendix, Rhode Island. the risk of showing that the debt was 72. Appendix, New York. not lost through his negligence. The In Harrington v. Keteltas, 92 N. statute of limitations does not begin Y. 40, it was held that an executor, to run in favor of an executor, aa having notice that there is a debt against a claim for damages oeca- due the estate, is bound to active sioned by his negligence in collecting diligence for its collection; he may a debt due the estate from the time not wait for a request from the dis- of the probate of the will, but at best tributees. In case the debt is lost only from the time of the loss, through his negligence, he becomes 73. Appendix, Minnesota. liable as for a devastavit. And if 74. Appendix, New Jersey, the case is one of such doubt, that an EXECUTOES AND Administeatoes, 921 Buch actions as concern the trade of merchandise between mer- chants, their factors, agents, and servants. This provision em- braces, also, all actions upon sealed instruments, sheriffs' and constables' bonds, and judgments. In Tennessee and Arizona the same period, under the same circumstances, is allowed in refer- ence to all claims. In Indiana,'^ eighteen months after the ex- piration jf the time is given in all cases where the person in whose favor a claim existed dies before the statute has run. In Texas,™ twelve months after the expiration of the statutory period are given, in all cases where the claimant dies before the statute runs, unless an executor or administrator is sooner appointed; but in the latter case, twelve months from the date of such ap- pointment constitutes the limit. In Montana," if the plaintiff in an action dies, and judgment in his favor is subsequently reversed, his heirs or representatives may commence a new action within one year after such reversal. In Georgia, a period not exceeding five years after the death of a party is given within which an action may be brought, if the statute has not already run at the time of his death; and practically the same provision exists in Virginia and West Virginia.'* In Wisconsin, the fact that there is no person to sue does not extend the time to more than double the period otherwise prescribed by law. In North Carolina,'^ the time during which any contest is pending relative to the probate of a will or the granting of administration is excluded, unless an administration is sooner appointed, and even in the latter case such time is excluded, unless by law a claimant is required to sue him within a shorter period. Except in these States, no statutory provision exists relative to actions in favor of deceased claimants, and the common-law rule prevails. § 197. When parties in interest may set up the statute. Widle, as previously stated, an executor or administrator is not 75. Appendix, Indiana. 78. Appendix, Wisconsin. 76. Appendix, Texas. 79. Appendix, North Carolina. 77. Appendix, Montana. ^ 922 Statutes of Limitation. bound to set up the statute, and bannot be compelled to do so, and no person can set it up without his assent, yet, after a decree has been obtained, any person interested, who takes advantage of the decree, may set up the statute whether the executor as- sents thereto or not.*" Before a decree is made the statute ap- plies, and the plaintiff will be barred on lapse of the appropri- ate length of time after administration.*^ There is a question as to how far an executor or administrator is liable as for a devastavit if he allows time to run in favor of a debtor, and against the estate he represents; and it may be said to be probable, that where such a case results from undue delay on the part of the executor or administrator, he is liable;*^ but this point, and the question which may arise as to how far an executor or adminis- trator is at liberty to revive debts barred by acknowledgment or part payment, and also what is the position as to the right to contribution of a co-executor who has acknowledged and thus revived a debt against his co-executors and the estate, if judg- ment is recovered against him singly, does not appear to be settled by the authorities.*^ § 198. Right of executor to set off debt barred. An executor may retain out of a legacy a debt due from the legatee to the estate, although the statute has run upon it, and an administrator may set off such a debt against the debtor's share, upon the ground that one of the next of kin of an intestate can 80. Briggs V. Wilson, 5 DeG. M. & 83. In Peaslee v. Breed, 10 N. H. G. 12; Puller v. Eedman, 26 Beav. 489, 34 Am. Rep. 178, it was held 614. that the joint maker of a note who 81. Higgins v. Shaw, 2 Dr. & War. has kept the debt against himself re- 356; Alsop v. Bell, 24 Beav. 451, vived by partial payments may, on 464; Hollingshead's Case, 1 P. Wms. the payment of the note, obtain eon- 742, 744; Hayward v. Kinsey, 12 tributiou from the other maker, not- Mod. 573; East v. East, 5 Hare, 848. withstanding that the payee's claim 82. Hayward v. Kinsey, supra; against the latter was barred. Williams, Executors (8th ed.), p. 1805. ExECTTTOES AND AbMINISTEATOES. 923 take no share of the estate until he has discharged his obligations to it in fulL^* § 199. Rule in equity as to claims against decedent's estate. The rule seems to be the same in equity as at law, that, where time has once begun to run against a debt in the testator's life- time, it does not cease to run between the date of his death and the appointment of an executor or administrator.^^ But in cases of fraud and mistake, courts of equity hold that the stat- ute runs from the discovery, because the laches of the plain- tiff commences from that date.^^ An executor cannot protect him- self by the statute from payment of a debt due from himself to his testator by deferring proof of the will. In such cases the probate will be considered to have relation to the testator's death, and the debt will be treated as assets in the executor's hands at that time.^'' The testator may revive a debt barred by the statute, 84. Courtenay v. Williams, 3 Hare, 539; In re Cordwell's Estate, L. R. 20 Eq. 644. 85. Freake v. Cranefeldt, 3 My. & Cr. 499. 86. Brooksbank v. Smith, 3 Y. & C. 58. See Schouler on Wills, Execu- tors and Administrators, Vol. 2, § 1390a. Where an administratrix sold real estate to pay debts, and afterwards, before confirmation, purchased it from those who bid at the sale, the heirs were held barred, by an unex- plained delay of seven years, from cancelling her purchase, she having meanwhile made permanent improve- ments on the land, and paid the debts with the proceeds of the sale. Gibson v. Herriott, 55 Ark. 85, 17 S. W. 589, 29 Am. St. Rep. 17. The Rhode Island Pub. States., o. 305, § 9, limiting the time for suing executors and administrators to three years, does not apply to citing them to appear and defend a suit be- gun against the decedent in his life- time. Sprague v. Greene, 30 R. I. 153, 157, 37 Atl. 699. 87. Ingle v. Richards, 38 Beav. 366. In Scott V. Jones, 1 Russ. & My. 255, it was held in equity that a notice published by an executor in a news- paper that he will pay all debts just- ly due from his testator, will prevent a debt from being barred by the stat- ute; but this doctrine is entirely in- consistent with the rule laid down in Tanner v. Smart, 6 B. & C. 603, and is not believed to be tenable; but it was also held that a notice published by an executor requesting all persons having claims against the estate to hand them in before they are sub- mitted to a person before whom per- sons claiming to be purchasers are to be examined relative to the validity 924 Statutes of Limitation. fcy the provisions of his willj but in such case it is only revived of their claims, will not remove the statute bar. Under 23 & 23 Vict., c. 35, § 29, the mere notice and making of a claim against the estate by a creditor in answer to the executor's notice does not keep his claim alive so as to pre- vent the statute of limitations from running. In re Stephens, 43 Ch. D. 39, 44. See Bambriok v. Bambrick, 157 Mo. 423, 58 S. W. 8; Barclay v. Blackinton, 127 Cal. 189, 59 Pao. 834; Ulster County Sav. Inst. v. Young, 161 N. Y. 23, 55 N. E. 483. When the Probate Court allows a will and an appeal is taken, the two years allowed by statute for credi- tors to sue the executor begin to run from the day when the probate de- cree is affirmed on appeal. Smith v. Smith, 175 Mass. 483, 56 N. E. 594. The running of the time is not stopped in favor of a creditor who did not know of his debtor's death. Beekman v. Richardson, 150 Mo. 430, 51 S. W. 689. The allowance by the Probate Court of a claim against the testator's estate amounts to a judg- ment, if not appealed from, and the statute of limitations does not apply thereto. McCord v. Knowlton, 79 Minn., 299, 82 N". W. 589. In re Cor- rington, 124 111. 363, 16 N. E. 252. An executor's or administrator's an- nual or partial account is only a judgment de bene esse. In Illinois, the allowance of a claim by the County Court is not conclusive against the heir excepting to the administrator's final report, when such allowance is subject to impeachment for fraud or collusion in a court of equity. Ibid; Schlink v. Maxton, 153 111. 447, 38 N. E. 1063; Bliss v. Seaman, 165 HI. 432, 46 N. E. 279; Marshall v. Cole- man, 187 111. 556, 58 N. E. 628. By the voluntary filing of their account and having, on their application, a citation issued to all persons inter- ested executors waive the statute of limitations, and admit their liability to account as existing, and, al- though they are only technically trustees of the testator's property, yet, as against the beneficiaries un- der his will, the statute of limita- tions cannot be availed of so long as such trust relation exists. In re Lyth, 67 N. Y. Supp. 579, 33 Misc. Rep. 608. As to laches as affecting creditors and those interested in the distribu- tion of a decedent's estate, see Har- ris V. Starkey, 176 Mass. 445, 57 N. E. 698, 79 Am. St. Rep. 322; Mal- daner v. Beurhaus, 108 Wis. 25, 84 N. W. 25; Roth V. Holland, 56 Ark. 633, 20 S. W. 521, 35 Am. St. Rep. 126; Kipping v. Demint, 184 111. 165, 56 N. E. 330, 75 Am. St. Rep. 164. Under the Mass. Pub. Stats., c. 136, § 11, requiring an executor or administrator to account for new as- sets received more than two years after his giving bond, and allowing a creditor to sue, as against the same, within two years, and one year after he has notice thereof, not everything omitted from the inventory by any cause, such as accident, is new assets, although the omission has not affected the other party's conduct. The sec- tion must be given a serious meaning and clearly does not include all tan- gible property first received by the representative after two years. ExECUTOES AND AdMINISTEATORS. 925 to the extent and in the manner stated in the will.^ Generally speaking, the statute does not run against a trust,*' and executors though not included in the inventory. Gould V. Camp, 157 Mass. 358, 32 N. E. 225; Quincy v. Quiney, 167 Mass. 536, 46 N. E. 108. As to failure of the action for defect of form under § 12 of the above chapter, see Taft V. Stow, 174 Mass. 171, 54 N. E. 506. Section 13 of th« same chapter, au- thorizing the retention of assets to satisfy claims not accruing within the two years, probably relates only to the retention of personal assets. Clark V. Holbrook, 146 Mass. 366, 16 N. E. 410; Forbes v. Harrington, 171 Mass. 386, 50 N. E. 641. If the estate is solvent and con- sists wholly of land, and the heirs, to avoid the loss resulting from a forced sale, authorize the executor to agree with a creditor that, if he delays en- forcing his demand, the executor will pay him as fast as the land can be advantageously sold, and this is as- sented to by the creditor, and is to his advantage, there being no other interested persons excluded from the arrangement, it is not culpable ne- glect for the creditor thus to suffer the time to expire within which an action may be brought against the executor. Knight v. Cunningham, 160 Mass. 580, 36 N. E. 466; Ewing v. King, 169 Mass. 97, 47 N. E. 597. See Morey v. American Loan & Trust Co., 149 Mass. 253, 21 N. E. 384. In Warner v. Morse, 149 Mass. 400, 21 N. E. 960, the statute of limitations was held not a bar to a bill to establish an equitable lien in real estate partly paid for with the funds of a decedent's estate. 88. In Williamson v. Naylor, 3 Y. & C. 208, where the testator provided that one-fifth of his estate should be divided among certain of his credi- tors named in a schedule to his will, it was held that the direction so given prevented the operation of the statute, and that, as a specific fund was appropriated for that purpose, if the fund proved insuflBcient to pay the debts in full, the creditors must take ratably. See also Rose v. Gould, 15 Beav. 189. In Barton v. Tatters- all, 1 Russ. & My. 237 (see also Ward v. Painter, 5 Myl. & Cr. 298). it was held that, where a deceased person before his death had taken the benefit of the insolvent acts, the rights of creditors scheduled under the insolvency were not affected by the statute, on the ground that the liability arose in respect of a lien created by those acts, rather than by virtue of any promise to be implied from the scheduling of the debts. In Sirdefield v. Price, 2 Y. & J. 73, on a bill by a creditor against an executor for payment of a demand and an account of the testator's es- tate, the court, entertaining some doubt as to the validity of the debt, retained the bill for one year, with liberty to the plaintiff to bring hia action; and the statute having taken effect between the filing of the bill and the decree, the court restrained the defendant from insisting on the statute. 89. Wren v. Gayden, 1 How. (Miss.) 365; Lafferty v. Turley, 35 Tenn. (3 Sneed) 157; Bailey v. Shannonhouse, 16 N. C. (1 Dev. Eq.) 416; HoUis's Case, 2 Vent. 345; 926 Statutes of Limitatioit. and administrators are treated as express trustees, in whose favor the statute does not run to bar the claims of legatees or dis- tributees of the estate.'" Therefore, a charge created by will upon the real estate for the payment of the testator's debts prevents the running of the statute upon such debts as were not barred in his lifetime,'^ but it does not revive a debt which was barred at the time of his decease;'^ nor does a charge upon the personal estate prevent the running of the statute, because, as the law vests the personal property in the executor or administrator for the payment of the decedent's debts, the will creates no special trust for that purpose.'^ But if a charge is created upon both the real and personal estate for the payment of debts, as if the testa- tor directs that his debts shall be paid out of his real and personal estate, and also provides that, if his personal estate shall be in- sufficient to pay his debts, then his executors may enter into ,the receipt of the rents of his freehold until the same are wholly paid, it has been held that, even though the personal estate is sufficient to pay the debts in full, yet a trust is created by the will for the payment of the debts, so as to prevent the statute from running upon them.'^ Legacies, unless expressly so provided therein, are not barred by the statute;'^ but a presumption that the legacy is paid arises Woadhouse v. Woodliouse, L. R. 8 Scott v. Jones, 4 CI. & F. 382; Eq. 514; Wedderburn v. Wedder- Freake v. Cranefeldt, 3 Myl. & Cr. burn, 2 Keen, 722; Obee v. Bishop, 1 499. De G. F. & J. 137; Brittlebank v. 94. Crallan v. Oulton, 3 Beav. 1; Goodwin, L E. 5 Eq. 545. Moore v. Petehell, 22 Beav. 172. 90. Lafferty v. Turley, supra; Pi- 95. Sparhawk v. Buell, 9 Vt. 41; cot V. Bates, 39 Mo. 292; Knight v. Thompson v. M'Gaw, 2 Watts (Pa.) Brawner, 14 Md. 1; Amos v. Camp- 161; Cartwright v. Cartwright, 7 bell, 9 Fla. 187; Smith v. Smith, 7 Tenn. (4 Playw.) 134; Perkins v. Md. 55. Cartmell, 4 Harr. (Del.) 270; Irby 91. Pettingill v. Pettingill, 60 Me. v. M'Crae, 4 Desaus. (S. C.) 422; 423. Doeblcr v. Snavely, 5 Watts (Pa.) 92. Burke v. Jones, 2 V. & B. 275; 225; Souzer v. De Meyer, 2 Paige Hargreaves v. Mitchell, 6 Madd. 326; (N. Y.) 574; Norris's Appeal, 71 Pa. Hughes V. Wynne, 1 T. & R. 307. 106; Kent v. Dunham, 106 Mas^s. 93. Evans v. Tweedy, 1 Beav. 55; 586; Wood v. Ricker, 1 Paige (N. ExECUTOEs AND Administeatoes. 927 from permitting the assets to be distributed witbout claiming the legacy, and is a good groTmd of defense by way of answer.'^ But this presumption, like all other presumptions relating to payment, is liable to be rebutted by proof that payment has not in fact been made. Courts of equity are never active in extending relief to stale demands, except upon very special groimds. Although the statutes generally do not bind those courts by express terms, so as to enable a defendant to plead them in bar to a suit for a legacy, yet, for the sake of convenience, they have adopted their provisions by analogy, in many instances in which fraud makes no ingredient. Upon this principle it has been determined that a legacy not demanded for forty years should be considered as prima facie satisfied; but this presumption is not so absolute as to support a demurrer to a bill for such a legacy; for the point of satisfaction is an inference, only arising from the length of time which has elapsed from the period the legacy became paya- ble, and which may be repelled by clear, strong, and relevant evi- dence. If, then, the merits of the question were allowed to be decided in a summary way upon a demurrer, the legatee would be precluded from the opportunity of producing such testimony.'' Y.) 616; Smith v. Kensington, 43 3 Y. & C. 663; Prior v. Homiblow, Barb. (N. Y.) 75; Brooks v. Lynde, id. 300; Jones v. Tuberville, 3 Ves. 89 Mass. (7 Allen) 64; McCartee v. Jr. 11; Baldwin v. Peach, 1 Y. & C. Camel, 1 Barb. (N. Y.) Ch. 455; 453; Brown v. Claxton, 3 Sim. 335; Anon., 3 Freem. 33, pi. 30; Parker v. Campbell v. Graham, 1 Russ. & Myl. Ash, 1 Vern. 257. But now in Eng- 453. land, under Stat. 3 & 4 Wm. IV., c. 97. See Jones v. Turberville, 3 Ves. 27, legacies are barred in twenty Jr. 11; Pickering v. Stamford, id. years. 373. In Montressor v. Williams, 96. Higgins v. Crawford, 3 Ves. Jr. MSS. 1833, March, 3, April 16, and 572; Andrews v. Sparhawk, 30 Mass. May 7, which came before Sir John (13 Pick.) 393; Kingman v. King- Leach, V. C, upon exceptions to the man, 121 Mass. 349; Skinner v. Skin- Master's report, one Duval, a lessee ner, 34 Ky. (1 J. J. Marsh.) 594; under a lease from the Portland Carr v. Chapman, 5 Leigh (Va.) family for ninety-nine years from 164; Sager v. Warley, Bice (S. C.) 1765, by his will dated December, Ch. 36; Hayes v. Goode, 7 Leigh 1789, proved 3d May, 1794, charged (Va.) 452; Pickering v. Stamford, 2 his general estate with legacies, sub- Ves. Jr. 582; Grenfell v. Girdlestone, ject to which the lease passed to his 928 Statutes of Limitation. In England, under the statute of 3 & 4 Wm. IV., it is held that, ■when an executor is called to account for moneys which were bequeathed to him upon certain trusts, and which have been severed by the executor from the testator's personal estate, and the interest of which has been for a time applied upon the trusts son as executor and residuary lega- tee. Duval, the son, in 1808, granted an underlease, which after various mesne assignments, came to Wigan, T^ho obtained a further term of four- teen years from Duval, and then as- signed the under lease to the defend- ant, who contracted with General Montresor, the plaintiff, for the sale of the leasehold premises and the fur- niture. Among other objections to the title referred to the Master, it was insisted that the lease being charged with the legacies, demands in respect of these might be made upon the purchaser. Releases were subse- quently procured. When the cause came on upon the exceptions to the Master's report, his Honor said: " These releases are unneccessary. The vendor has no right to them. Even without them, I should have held that, where an executor, twenty years after the death of the testa- tor, sells a leasehold charged by the will with legacies, and no demand has during all that time been made upon it, there was evidence that the charges had been paid." In Camp- bell v. Graham, 1 Russ. & Myl. 453, 2 CI. & Fin. 429, Lord Brougham, C, observed: "A party buying a legacy of £500 for £25, after seven and twenty years have elapsed, and then allowing four years more to pass be- fore filing his bill, making altogether a laches of more than thirty years, in my apprehension has himself to blame, if he finds, when he comes into this court, that his remedy is gone. 4 Barr. 1962; Oswald v. Leigh, 1 T. E. 270; Pladong v. Winter, 19 Ves. 196; Wynne v. Waring, cited in previous case; Hercy v. Dinwoody, 4 Bro. C. C. 257; Smith v. Clay, 3 id. 639, n.; Jones v. Turberville, and Pickering v. Stamford, supra. Upon the principle of s.ome of these cases, therefore, and upon the authority of others, admitting nevertheless that no one has gone so far as to say that mere lapse of time can be pleaded as a bar, and stating also that I can (find; no case in which the precise period of seven and twenty years has been held sufficient to shut the doors of a court of equity against such a demand as too stale to be enforced — upon the reasoning and principle of some of these cases, and the actual decision in others, I am disposed to hold that the plaintiff has come too late, and that the doors of this court ought not now to be thrown open to him, inasmuch as, to use Lord Cam- den's expression, the court cannot be called into activity to aid a demand, be it for a legacy or for a debt, un- less with good faith and with good conscience a reasonable degree of dili- gence shall have been used." Pre- sumptions of payment of legacies will not be made from mere lapse of time, where payment by the executor would be out of the ordinary course, Lee v. Brovm, 4 Ves. 362; Prior v. Horni- blow, 2 Y. & C. 200. ExECUTOKS AND AdMINISTEATOES. 929 of the will, 80 that the fund has ceased to bear the character of a legacy, and has assumed that of a trust fund, the action to compel an account is treated as a suit for a breach of trust, and not as a suit for a legacy, and consequently is not within the fltatute,^^ as it is held that that statute does not apply to cases of express trust.** § 199a. Death of person entitled to sue. The death of the creditor, after an action has accrued to him, does not interrupt the running of the statute of limitations.^ Where limitations begin to run against the ancestor of a posthu- mous child, the ancestor's death does not interrupt the statute. 98. Estate of Brown, 8 Phila. (Pa.) 197; Marslifield v. Cheever, 3 Dane Abr. 503; Sawyer T. Smith, 5 id. 405; Pedrick v. Saunderson, 5 id. 403; Bass V. Bass, 35 Mass. (8 Pick.) 187; Denny v. Eddy, 39 Mass. (23 Pick.) 533; Eavenscroft v. Frisby, 1 Coll. 16; Phillip v. Munnings, 3 Myl. & Cr. 309. In re Powers, 134 N. Y. 361, 36 N. E. 940, it was held that to render a provision in a will effectual to furnish a greater security than that given by law for the payment of debts in due course of administra- tion, by charging them upon the real «state of the testator, the purpose must quite clearly appear; a mere direction to pay debts out of the property will not suffice. See In re MeComb, 117 N. Y. 378, 33 N. E. 1070. 99. Watson v. Saul, 1 Giff. 188; King V. Dennison, 1 V. & B. 360; Dix V. Bufford, 19 Beav. 409; But- ler V. Carter, L. E. 5 Eq. 276; Ed- munds V. Waugh, L. R. 1 Eq. 418 Dinsdale v. Budding, 1 Y. & C. 265 Brougham v. Poulett, 19 Beav. 119 Commissioners v. Wybrants, 3 Jones 59 & L. 182; Jacquet v. Jacquet, 37 Beav. 333; Playfair v. Cooper, 17 id. 187; Mason v. Broadbent, 33 id. 296; Tyson v. Jackson, 30 id. 384; Hodg- son V. Bibby, 33 id. 221; Dickinson V. Teasdale, 31 id. 511; Hound v. Bell, 30 id. 121 ; Davenport v. Staf- ford, 14 id. 319; Downes v. Bullock, 25 id. 54; Smith v. Acton, 26 id. 310; Proud V. Proud, 33 id. 234; Gough V. Bult, 16 Sim. 323; Francis v. Grover, 5 Hare, 39; Roch v. Callen, 6 id. 531; Lewis v. Duncombe, 29 Beav. 175; Hunter v. Nockolds, 1 Mac. & G. 640, 683; Snow v. Booth, 2 K. & J. 132; Cox V. Dolman, 3 De G. M. & G. 592; Burrowes v. Gore, 6 H. L. Cas. 907; Young v. Waterpark, 13 Sim. 199. 1. Ala. — Johnson v. Wren, 3 Stew. 173; Daniel v. Day, 51 Ala. 431. Ky. — Beauchamp v. Mudd, 5 Ky. (2 Bibb.) 537. Md. — Stewart v. Spedden, 5 Md. 433. Ohio. — Granger's Adm'r v. Gran- ger, 6 Ohio (6 Ham.) 35. r*.— Conant v. Hitt, 12 Vt. 285. 930 Statutes of Limitation. menced to run against a cause of action during the life of the holder thereof, continue to run after his death, in the absence of anything to the contrary in the statute.^ In Maryland, the death of one holding the legal title to property, but out of pos- session, does not stop the running of limitations as against his interest therein.^" In Massachusetts, it is held that, where a guar- dian is discharged by the death of his ward, it cannot be said that, at the time of such discharge, the person entitled to bring an ac- tion on the guardian's bond is out of the state. The statute, relat- ing to such cases, contemplates the absence from the common- wealth of some person who is entitled to bring the action, or to have the action brought for his benefit, and who subsequently returns into the state.^^ In Michigan, where plaintiff's suit, which Nat. Bank, 113 Iowa 11, 83 N. W. 711, 51 L. R. A. 410, 84 Am. St. Rep. 318. The disability of an insane person ia terminated by death, and a pro- ceeding to vacate a judgment fraudu- lently obtained against such person must be commenced within a year thereafter, under the express provi- sions of Code, § 4094. Wood v. Wood, 136 Iowa 138, 113 N. W. 493, 12 L. R. A. (N. S.) 891. An action by the heir of a minor to redeem from a tax sale must be commenced within one year after the death of the minor. Gibbs v. Sawyer, 48 Iowa, 443. 9. Boughner v. Sharp, 144 Ky. 330, 138 S. W. 375; Baker's Adm'r v. Baker's Adm'r, 53 Ky. (13 B. Mon.) 406; Hull V. Deatly's Adm'r, 70 Ky. (7 Bush) 687; Doty v. Jameson, 29 Ky. Law Rep. 507, 93 S. W. 638. Ky. St. § 3526 (Russell's St. § 193), providing, if a person entitled to bring an action dies before expira- tion of time for its commencement, and the cause survives, the action may be brought by his representative after the expiration of that time, if commenced within a year after his qualification, does not extend the time for action because of delay of the administrator in qualifying; he having qualified more than a year be- fore expiration of the time in which deceased could have sued. Halcomb V. Cornett, 146 Ky. 339, 142 6. W. 686. In applying the five-year statute of limitations to a suit brought by an administrator to recover the value of decedent's support, for which her son-in-law was obligated, the period when there was no administrator should be deducted. Bryson's Adm'r V. Briggs, 33 Ky. Law Rep. 159, 104 S. W. 982. 10. Baumeister v. Silver, 98 Md. 418, 56 Atl. 825. 11. McKim V. Mann, 141 Mass. 507, 6 N. E. 740. In Montana, even if the cause of action on a guardian's bond does not accrue until accounting by the guar- dian, the administrator of the de- EXECUTOES AND Administeatoes. 931 thougli plaintiff was yet unborn.^ In Arkansas, the statute of limi- tations will not run on a note belonging to the estate of the in- testate, who left no liabilities, while there was no administrator of the estate and the heirs were not all of age f and if the statute begins to run against an infant during his life, it will continue as against his representative.* In California, where a cause of ac- tion does not accrue until after the death of the party who would have been entitled to sue, the running of the statute of limita- tions is not interrupted because there happens to be no adminis- trator entitled to sue, since the persons beneficially interested have the full period of limitation in which to obtain administration and bring action.^ The death of the creditor, after an action has accrued to him, does not affect the running of the statute of limi- tations, in Illinois, where the debt had more than one year to run at the time of the death of the creditor.^ In Indiana, a claim, against a decedent's estate which accrued during the decedent's lifetime is barred by limitations, where no administrator is ap- pointed until after the time fixed by the statute has elapsed.'' In Iowa, the statute of limitations is not tolled by the death of a person after the statute has commenced to run against a cause of action in his favor.* In Kentucky, limitations, having com- 2. Oliver v. Williams, 163 Ala. statute of limitations upon a mort- 376, 50 So. 937. gage in favor of such estate. San- 3. Chisholm v. Crye, 83 Ark. 495, ford v. Eergin, 156 Cal. 43, 103 Pac. 104 S. W. 167. 333. 4. Bozeman v. Browning, 31 Ark. 6. Pinkney v. Pinkney, 61 111. App. 364. 525, notwithstanding 111. Eev. St. c. Where a widow, on the death of 83, § 19. her minor child, is in possession of 7. Hildebrand v. Kinney (Ind. his land under claim of title, the App.), 83 N. E. 379, under Ind. Rev. statute of limitations begins to run St. 1881, § 298 (Burns' Ann. St. against the minor's heirs from the 1901, § 299). date of his death. Sanson v. Harrell, 8. Aekerman v. Hilpert, 108 Iowa, 55 Ark. 572, 18 S. W. 1047. 247, 79 N. W. 90. 5. Cortelyou v. Imperial Land Co., The running of limitations against 166 Cal. 14, 134 Pac. 981. a certificate of deposit was not inter- Thc want of an administration rupted by the death of the holder of upon an estate does not suspend t'he the certificate. Mereness v. First 932 Statutes op Limitation. "was within the ten-year statute of limitations, would not have been barred until more than two years after the grant of letters testa- mentary or of administration on decedent's estate, the statute granting such time to sue did not apply and so did not " ext-end " the time within which to sue thereon.-^^ In Missouri, where a person entitled to sue dies before the expiration of the time limited for the commencement of the suit, and the cause of action survives to his representatives, the right of action given by the statute is expressly limited to one year from the date of the death of the decedent, and cannot be brought within a year from the date of the appointment of an administrator.-^^ In New Jersey, one hold- ing an overdue obligation may not prevent the running of limita- tions after his death, by providing in his will that his executor shall not institute any proceeding to enforce the obligation or take any steps to collect the same during the lifetime of a person named, or during any other period, measured in any way.-'* In New York, limitations on decedent's right to recover land, having commenced to run before his death, are not interrupted by his death, nor by ceased ward is not for that reason recover real estate, shall die, her under " disability " between tlie heirs may sue within three years ai- ward's death and such accounting, ter her death, does not bar an action within Prob. Prac. Act, § 404, re- by heirs where the deed attacked, on quiring action against the sureties its face, in the light of the record on a guardian's bond to be com- title, conveyed nothing, and cast no menced within three years from the cloud on the mother's title while she discharge of the guardian, unless at lived, because not recorded until af- the time of the discharge the person ter her death, and she was witliout entitled to bring the action is under knowledge of it. Starr v. Bartz, 319 "legal disability" to sue. Berkin v Mo. 47, 117 S. W 1135; Starr v. Marsh, 18 Mont. 152, 44 Pac. 528, 56 Kisner, 219 Mo. 64, 117 S. W. 1129. Am. St. Eep. 565. 14. Swinley v. Force, 78 N. J. Eq. 12. Morse v. Hayes, 150 Mich. 597, 52, 78 Atl. 249. 114 N. W. 397, 14 Detroit Leg. N. Where a ward attaining her ma- 785, 13 L. R. A. (N. S.) 1300. jority in 1883, died in 1885, befors 13. Smith V. Settle, 128 Mo. App. the guardian had rendered an ac- 397, 107 S. W. 430. count; the guardian died in 1905; in Mo. Rev. St. 1899, § 4267 (Ann. 1906 an administrator of the de- St. 1906, p. 2342), providing that if ceased ward was appointed, and a married woman, entitled to sue to sued, in the same year, the represen- EXECUTOES AUTD Administratoes. 933 the infancy of some of his heirs.-*^ In Oklahoma, a person cannot prevent the operation of the statute of limitations by delay in taking action incumbent upon him.-^^ In Ohio, if a cause of action which has been pleaded as a set-off occurred in the lifetime of plaintiff's intestate, the running of the statute was not inter- rupted by his death, in the absence of an express exception in the statute declaring that it should have that effect." In Pennsylvania, the running of the statute of limitations on a note is not stayed by the death of the holder.^' In South Carolina, where a trust has been repudiated to the knowledge of the beneficiary, and the statute of limitations has thus been set in operation against him, the running of the statute is not suspended by the death of the bene- ficiary, although his administrator has no knowledge of the trust.-'' In Texas, where three years have elapsed with no application for administration of an estate, decedent's widow may maintain an action on a judgment which was their community property, and was rendered seven years before his death, and thus save it from the bar of limitations.^" In Washington, where limitations begin to run before the death of the party having the right of action, they are not arrested by his death, unless expressly provided for tative of the deceased guardian for 446, as to action against a city for an accounting, the suit was not negligent death, brought by an ad- barred by limitations, though the ministrator of the deceased, cause of action accrued on the ward's The statute of limitations having death, since limitations did not begin commenced to run is suspended by to run until the appointment of her death only in the cases, and to the representative. Stevenson v. Mark- extent expressly provided by the ley, 73 N. J. Eq. 731, 70 Atl. 1102, same or some other statute. Beach aff'g 72 N. J. Eq. 686, 66 Atl. 185. v. Reynolds, 64 Barb. (N. Y.) 506. IS. Lewine v. Gerardo, 112 N. Y. 16. Glazier v. Heneybuss, 19 Okl. Supp. 192, 60 Misc. Rep. 261. 316, 91 Pac. 872. Where plaintiff's testator's right 17. Irwin v. Garrettson, 1 Cin. R. of action was barred by limitations (Ohio) 533. prior to his death, his death did not 18. Appeal of Amole's Adm'rs, 115 create a new right of possession in Pa. 356, 8 Atl. 614. his devisees. Baker v. Duff, 120 N. 19. Boyd v. Munro, 32 S. C. 249, Y. Supp. 184, 136 App. Div. 13. 10 S. E. 963. See Conway v. City of New York, 20. Walker v. Abercrombie, 61 Tex. 124 N. Y. Supp. 660, 139 App. Div. 69. 934 Statutes of Limit atiok. in the statute.^^ In West Virginia, when an action has accrued to a party capable of suing against a party who may be sued, the stat- ute of limitations begins to run, unless this be prevented by the case coming within some exception of the statute ; and, after it has begun to run, its running is not suspended because of the subse- quent death of either of the parties, or because of the lapse of time before either has a personal representative.^^ In Wisconsin, the statute which provides that, if a person entitled to bring an action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, action may be commenced by his representative after the expiration of that time, and within a year from his death, is limited to cases where the death of the person occurs during the last year of his right to commence the action.^^ In Kansas, as against heirs of a grantor of unsound mind, who so continues until his death, limitations do not begin to run until such death. ^* § 199b. Accrual of cause of action before issuance of letters testa- mentary or of administration. In Alabama, under Code 1907, § 4854, providing that the time between death and the grant of administration, not exceeding six months, is excepted from the time limited for the commencement of an action by the administrator, the statute, even though it has begun to run against decedent, is suspended for a period of not less than fifteen days and until letters are granted, within the limit of six months.^^ In Arkansas, the statute of limitations does not begin to run against a claim accruing to an estate after one's death until there is a personal representative competent to sue.^^ In 21. McAuliff V. Parker, 10 Wash. 25. Larue v. C. G. Kershaw Con- 141, 38 Pae. 744. tracting Co., 177 Ala. 441, 59 So. 22. Handy v. Smith, 30 W. Va. 155. 195, 3 S. E. 604. 26. Sorrels v. Trantham, 48 Ark. 23. Palmer T. OTlonrke, 130 Wis. 386, 4 S. W. 281; Word v. West, 38 507, 110 N. W. 389. Ark. 343; Worthington's Adm'r v. 24. Jenkins v. Jenkins, 94 !Kan. De Bardlekin, 33 Ark. 651. 263, 146 Pae. 414. ExECUTOES AND Administeatoes. 935 Delaware, where a cause of action does not arise until after a per- son's death, the act of limitations does not begin to run until there are parties capable of suing and being sued.^^ In the Dis- trict of Columbia, limitation does not begin to run against a claim in favor of a decedent's estate until after the granting of letters of administration.^ In Florida, on the abandonment of a suit by the death of a plaintiff, limitations will not r.un until axiministra- tion on his estate has been taken, or in the absence of a person who is capable of suing. ^' In Georgia, where, in an action against an administrator, the oldest item in the account sued on was of a date less than five years before the bringing of the suit, and the creditor was prohibited from bringing an action against the ad- ministrator until after twelve months from his appointment, the statute was tolled for that period and no item of the account was barred by the statute of limitations.^" In Indiana, limitation does not begin to run against claims arising after death, until ad- ministration is had; a creditor's right to take letters, under the statute, being merely a right, and not a duty.^ In Kansas, where a person who was to render services under an entire contract died before the completion of the contract, the statute of limitations did not begin to run against an action to recover compensation for the services rendered until administration of the deceased's estate.^^ Under the Kentucky statute, providing if a person en- titled to bring an action dies before expiration of the time limited for its commencement it may be brought by his personal represen- tative after expiration of that time, if commenced within a year after his qualification, he, not qualifying before the cause of action 27. Conwell's Adm'r v. Morris Taylor v. Jacoway, 54 Ga. 500; Adm'r, 5 Har. (Del.) 299. Garland v. Milling, 6 Ga. 310. 28. Tucker v. Nebeker, 2 App. B. 31. Hildebrand v. Kinney, 172 Ind. C. 326. 447, 87 N. E. 832, rev'g (Ind. App.), 29. Coe v. Finlayson, 41 Fla. 169, 83 N. E. 379; Burns' Ann. St. 1908, 26 So. 704. §§ 3743, subd. 3, 2744. See also 30. Hinkle v. James Smith & Son, Douglass v. McOarer, 80 Ind. 91. 137 Ga. 437, 56 S. E. 464. And see 32. Carney v. Havens, 23 Kan. 83. See Green v. Goeble, 7 Kan. 397. 936 Statutes of Limitation. is barred, may not bring the action.^^ In Connecticut, in an action by an administrator for money converted after intestate's death, but before the administrator had been appointed, where the money was converted more than six years before the action was com- menced, but the administrator was appointed less than a year be- fore the commencement thereof, the cause of action did not accrue, so that limitations ran against it, until the administrator was ap- pointed, and hence the action was not barred by the statute.^ In Louisiana, where one claimed to be sole heir to an estate, but a will was afterwards found, on the probate of such will, his cause of action as creditor of the estate accrued, and the statute of limita- tions then began to run.^^ In Massachusetts, where within six years after the dissolution of a partnership one of the partners died, and within two years after the granting of letters of administration on his estate, but more than six years after the partnership was dis- solved, his administrators brought a bill in equity against the other partners to compel them to account, the case was not barred by the statute of limitations.^® In Michigan, the running of limitations, prescribed by the stat- ute providing that actions for personal injuries must be brought within three years from the occurrence on which the claim for lia- bility is founded, is not suspended by the death of the person ia- jured until the appointment of an administrator, notwithstanding Comp. Laws, § 9737, providing that, where any person entitled to bring an action shall die and the cause of action survives, the action may be commenced by the administrator at any time within two years after granting of letters of administration; the former 33. Boughner v. Sharp, 144 Ky. Gatewood's Adm'r, 10 Ky. Law Rq>. 330, 138 S. W. 375, under Ky. St. § 113. 3536 (Russell's St. § 193); Louis- 34. Root v. Lathrop, 81 Conn. 169, Tille & N. R. Co. V. Brantley's Adm'r, 70 Atl. 614. 106 Ky. 849, 31 Ky. Law Rep. 473, 35. Succession of Dubreuil, 25 La. 51 S. W. 585; Wilson's Adm'r v. Ann. 370. Illinois Cent. R. Co., 29 Ky. Law 36. Chandler v. Chandler, 21 Mass. Rep. 148, 93 S. W. 572; Pitcliford v. (4 Pick.) 78, under St. 1793, c. 75, § 3. See Gen. St. c. 155, § 10. EXECUTOES AND Administeatoes. 937 Etatute not making an exception in favor of causes of action which survive." In Minnesota, Gen. St. 1894, § 5149, providing that the time which elapses between the death of a person and the granting of letters testamentary or of administration on his es- tate, not exceeding six months, and the period of six months after the granting of such letters, are not to be deemed any part of the time limited for the commencement of actions by executors and administrators, prescribes the general rule, and section 5148, pro- viding that, if a person entitled to bring an action dies before tihe expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his personal representatives after the expiration of that time, and ■within one year from his death, applies only to special cases, where the person entitled to bring the action dies within the last year of the term of limitation.^^ In Mississippi, although a right of action has accrued, the statute of limitations will not com- mence to run until, by appointment of an administrator or other- wise, some party is in being who has power to sue.^ In Missouri, limitations do not begin to run against a cause of action accruing after the death of a persoUj in favor of his administrator, until the granting of letters of administration.*" In New Hampshire, notwithstanding the statute provides that suits against an executor 87. Colling V. McGregor, 144 Mich. 45, 99 S. W. 769; Eyan v. Ford, 151 651, 108 N. W. 87, 13 Detroit Leg. N. Mo. App. 689, 133 S. W. 610 ; White 310. As to action to recover moneys v. Blankenbeckler, 115 Mo. App. 723, eharged on land, see Field v. Love- 93 S. W. 503. ridge, 114 Mich. 220, 73 N. W. 160, While, on the death of a debtor, 4 Detroit Leg. N. 515. limitations do not run against the 88. Wood V. Bragg, 75 Minn. 527, creditor during the time administra- 78 N. W. 93. tion is delayed, yet, where the credi- 39. Metcalf v. Grover, 55 Miss. 145. tor is the decedent, limitations on a See also Stauffer v. British & Ameri- matured obligation continue to run, can Mortgage Co., 77 Miss. 127, 25 as his heirs cannot prolong the per- 6o. 299; Boswell v. Thigpen, 75 Miss, iod of limitations in their own favor 308, 22 So. 833; Wood v. Ford, 29 by delaying to take out letters of ad- Miss. (7 Cushm.) 57; Byrd v. Byrd, ministration. Stanton v. Gibbins, 28 Miss. (6 Cushm.) 57. 103 Mo. App. 264, 77 S. W. 95. 40. Greisel v. Jones, 123 Mo. App. 938 Statutes of Limitation. must be begun within three years after the appointment, such ac- tion may be brought after that time by the administrator of a per- son who at the time of her death had the right of such action, if brought " within two years after the original grant of adminis- tration " as provided by statute.^^ In ISTew York, a claim against an insurance company for a loss occurring after the death of the insured, not being a cause of action which accrued to him, is not affected by Code Civ. Proc, § 402, extending the time within which an action may be brought after the death of the person in whose favor the claim exists.*^ In North Carolina, where a right of action survives in favor of an intestate, the action must be brought within a year after his death, without reference to the time of administration, but where a right of action survives against an intestate, the running of the statute of limitations is suspended between the time of his death and the appointment of his adminis- trator.*' In Pennsylvania, where a beneficiary of a wagering life insurance policy collects the money due on the policy, limitations do not begin to run against the right of the legal representative of the assured to sue for the money until administration is granted.'** In Ohio, where a right of action survived in favor of an intestate, the statute of limitations continued to run, though the intestate died shortly after the action accrued, and no administrator was 41. Perkins v. Perkina, 68 N. H. 133, 2 Gibbons, 581, 28 N. Y. Civ. 364, 38 Atl. 1049. Proe. R. 220. 42. Matthews v. American Cent. The fact that there is no leg^l rep- Ins. Co., 41 N. Y. Supp. 304, 9 App. reaentative of a deceaaed creditor en- Div. 339, 75 N. Y. St. Eep. 716, judg. titled to sue the demand does not modified 154 N. Y. 449, 48 N. E. 751, prevent the operation of the statute 39 L. R. A. 433, 61 Am. St. Rep. 637. of limitationa. Partridge v. Mitchell, The running of limitationa againat 3 Edw. Ch. (N. Y.) 180. the claim of a deceased creditor to 43. Coppersmith v. Wilson, 107 N. the surplus arising from a sale of C. 31, 12 S. E. 77; Dunlap v. Hend- mortgaged land is not suspended ley, 92 N. C 115. See also Matthews while the surplus remains undiatrib- v. Peterson, 152 N. C. 168, 67 S. E. uted, though the sale occurred within 340. four years from the issuance of let- 44. Riner v. Riner, 166 Pa. 617, 31 ters of administration. In re Knapp, Atl. 347, 45 Am. St. Rep. 693. See 54 N. Y. Supp. 927, 25 Misc. Rep. Marsteller v. Marsteller, 93 Pa. 350. ExEcuTOES AND Administratoes. 939 appointed.*^ In South Carolina, the statute of limitations does not begin to run against the creditors of an estate, or against repre- sentatives of an intestate, until administration is granted.*^ In Texas, limitations do not run against an action for an injury done to an estate of a decedent after his death, and before the quali- fication of his legal representatives, until the expiration of one year from his death." In Virginia, the statute of limitations does not begin to run against a claim asserted for a decedent's estate until a qualification of an executor or administrator of the estate.** In South Dakota, the statute of limitations does not begin to run against the claim of a decedent's estate, a right of action upon Avhich did not accrue until the appointment of an administrator, until such appointment.** In West Virginia, as to a demand which accrues to a decedent's estate after his death, limitation is counted from the time his personal representative qualifies, if within five years of his death ; but, if there is no personal represen- tative within five years, then the period is counted from the last day of the five years after his death.^" In Wisconsin, where de- fendant converted certain personal property belonging to decedent after her death and before the appointment of an administrator, an 45. Tobias v. Richardson, 26 Ohio nos' Adm'r, 7 Grat. (Va.) 377; Cir. Ct. R. 81. Smith's Adm'r v. Charlton's Adm'r, 46. King V. Aughtry, 3 Strob. Eq. 7 Grat. (Va.) 425. (S. C. ) 149; Harvin v. Riggs, Rich. In computing time under the stat- Eq. Cas. (S. C.) 287. ute of limitations, a period of one 47. William J. Lemp Brewing Co. year from the qualification of the per- T. La Rose, 20 Tex. Civ. App. 575, 50 sonal representatives of a person for S. W. 460. The same rule applies to whose benefit an action is brought in an action to recover lands. Carter v. the name of another cannot be ex- Hussey, (Tex. Civ. App.) 46 S. W. eluded, since such person is not a 270; Hasseldenz v. Dofflemyer, (Tex. party of record. Fadely's Adm'r v. Civ. App.) 45 S. W. 830. But it does Williams' Adm'r, 96 Va. 397, 31 S. not apply where the decedent trans- E. 515. ferred a note in blank, and the trans- 49. McPherson v. Swift, 22 S. D. feree has authority to sue, though 165, 116 N. W. 76. the decedent had an interest in it. 50. Crawford's Adm"r v. Turner's Davis V. Dixon, 61 Tex. 446. Adm'r, 67 W. Va. 564, 68 S. E. 179, 48. Hansford v. Elliott, 9 Leigh under Code 1906, c. 104, § 17. (Va.) 79; Lyon's Adm r v. Magi»g- 940 iStatutes of LiMiTATioiir. action could be commenced within double the period otherwise peiv scribed by law and not be barred.^^ § 199c(l). Death of person liable in general. Where a contract provides that performance shall take place upon the happening of a certain contingency or condition, the btatute of limitations begins to run when the event occurs and the condition is complied with, and the death of the party making the promise, before the contingency happens, does not set the stat- ute in motion in favor of his estate.^^ The running of limitations against a cause of action for breach of a marriage promise is not suspended by the death of the promisor.^ Where a cause of action has accrued, and the statute of limitations has commenced to run, it is not suspended by the death of the debtor except by special statutory enactment." Where limitations started against a judg- ment in the lifetime of a judgment creditor, the operation of the statute was not suspended by his death.^^ The 51. Palmer v. O'Rourke, 130 Wis. action against the heir is never barred 507, 110 N. W. 389. See also Stehn until at least two years after the de- V. Hayssen, 124 Wis. 583, 103 N. W. cedent's death, and in neither case is 1074; Wis. Rev. St. 1898, § 4251. the action ever barred at any tima 52. Waterman v. Kirk's Estate, within which it might have been 139 111. App. 451. brought against the decedent. Pil- 53. In re Oldfield's Estate, 158 cher v. McCowan, 8 Ky. Law Rep. Iowa, 98, 138 N. W. 846. (abstract) 786. Where an adminis- The running of the five years' limi- trator qualifies November 28, 1864, tations, under Code, § 3447, against and his surety dies January 23, 1871, an action to recover a loan of money, under Rev. St., c. 97, § 13, limitation was not tolled by the death of the runs in favor of an heir of the surety, borrower. Widner v. Wilcox, 131 against whom an action was brought Iowa, 223, 108 N. W. 238. October 15, 1872, by heirs of the ad- 54. Johnson v. Equitable Life As- ministrator's intestate. Murrell's sur. Society of United States. 137 Adm'r v. McAllister, 79 Ky. 311; Ky. 437, 125 S. W. 1074. Marshall v. Sanford, 9 Ky. Law Rep. An action against a personal rep- 855. resentative on a cause of action 55. Broolcs v. Preston, 106 Md. 693, against the decedent is never barred 68 Atl. 294, and his administrator until the expiration of at least one could not revive it by scire facias is- year after his appointment, and an sued about 13 years after the rocov- EXECUTOES AND Administeatoks. 941 four-year period of limitations, fixed by the Nebraska stat- ute on actions to set aside fraudulent conveyances, is not tolled by the death of the fraudulent grantor.^^ Where a trustee dies and leaves all his property to his widow and executrix, who die without accounting for the fund, and her property goes to the hands of her executors, an action against them brought by the beneficiary within seven years and six months from the time the trustee without authority paid the fund to another is uot barred under New York Code Civ. Proc, § 382, authorizing such an action within six years, and section 403, suspending the running of limitations for eighteen months after the death of the trustee.^' Where a cause of action accrues for or against a party, the West Virginia statute of limitations does not stop because of his death or until he has a personal representative.^^ The running of the Wash- ington statute of limitations for foreclosing a mortgage is not sus- pended by the death of the mortgagor unknown to the mortgagee.^^ § 199c (2). Effect of administration of estate of decedent or want thereof. In Arkansas, where a maker of a note secured by mortgage dies before the five-year limitations have run against the note, limita- tions cease to run and are succeeded by the two-year statute of nonclaim, which runs from the granting of letters of administra- cry of the judgment, though more 59. Fuhrman v. Power, 43 Wash, than eight years elapsed between the 533, 86 Pae. 940. death of the judgment creditor and As to the effect on limitations of the appointment of the administra- the death of the person liable in other tor. jurisdictions. See 56. Lesieur v. Simon, 73 Neb. 645, Ind. — Harris v. Rice, 66 Ind. 267; 103 N. W. 303. Emerick v. Chtsrown, 90 Ind. 47. 57. Judg. and order 34 Misc. Eep. Ind. T. — Murray v. Houghton, 2 eei, 70 N. Y. Supp. 593, aff'd. Hop- Ind. T. 504, 53 S. W. 48. per V. Brown, 67 App. Div. 630, 74 3?. 0. — ^Alexander v. Alexander's N. Y. Supp. 1132, aff'd 173'N. Y. 613, Ex'rs, 4 N. C. 28. 66 N. E. 1110. Va. — ^Templeman's Adm'r v. Pugh, 58. Rowan v. Chenoweth, 49 W. 103 Va. 441, 46 S. E. 474. Va. 287, 38 S. E. 544, 87 Am. St. Rep. 796. 942 Statutes of Limitation. tion, and the note and mortgage are in force for two years after that date.*" A cause of action against a mortgagor having arisen after her death, and when no administration on her estate ex- isted, limitations, in California, did not begin to run until letters of administration were issued.*^ In Georgia, limitations as to debts of a decedent are suspended between the time of his death and the appointment of an administrator, if such period does not exceed five years. *^ The Illinois limitation law applies to a suit to fore- close a mortgage to secure a note given by deceased, though the personal representative is not a necessary party thereto, where action could have been brought against him on the note."^ If there was liability, either express or implied, to pay a claim for money paid a physician for services to decedent, or for an invalid chair for his use, the obligation arose before death, and the statute which began to run when the obligation arose, was not suspended by eo. McGill V. Hughes, 84 Ark. 238, 105 S. W. 255 ; Montgomery v. Gantt, 100 Ark. 629, 140 S. W. 260. See also Eoss V. Frick Co., 73 Ark. 45, 83 S. W. 343 ; Salinger v. Black, 68 Ark. 449, 60 S. W. 229; Whipple v. John- son, 66 Ark. 204, 49 S. W. 827. 61. Hibernia Savings & Loan So- ciety V. Farnham, 153 Cal. 578, 96 Vsic. 9; In re BuUard's Estate, 116 Cal. 355, 48 Pac. 219; Heeser v. Tay- lor, 1 Cal. App. 619, 82 Pac. 977. Code Civ. Proc, § 353, only inter- rupts the running of the statute as against the representatives of the de- ceased mortgagor. California Title Ins. & Trust Co. v. Muller, 3 Cal. App. 54, 84 Pac. 453; Casey v. Gib- bons, 136 Cal. 368, 68 Pac. 1032. As to the effect of administration or want thereof on other limitations. See Vandall v. TeagUe, 142 Cal. 471, 76 Pac. 35. 62. Hawes v. Glover, 126 Ga. 305, 55 S. E. 62, since the passage of Acts 1882-83, p. 104 (Civ. Code, 1895, § 3782). The appointment of a tem- porary administrator does not con- stitute " representation " on the es- tate of a decedent, within Civ. Code 1910, § 4376, so as to cause limita- tions to run against the estate on such appointment. Baumgartner v. MeKinnon, 137 Ga. 165, 73 S. E. 518. Where a partner dies, and a part- nership is dissolved thereby, limita- tions run in favor of his estate after the expiration of 12 months from the grant of administration thereon, as to all demands of the surviving part- ner out of the partnership transac- tions. Willis V. Sutton, 116 Ga. 283, 42 S. E. 536. 63. Wellman v. Miner, 179 111. 326, 53 N. E. 609, rev'g judg. 73 111. App. 448; Roberts v. Tunnell, 165 111. 631, 46 N. E. 713, aff'g judg. 65 111. App. 191, under Limitation Law, § 19 (2 Starr & C. Ann. St. 2nd ed. p. 2639). Executors and Administratoes. , 943 his death, nor by the failure to appoint an administrator, in the absence of statute.^* A cause of action for the foreclosure of a mortgage does not accrue on the death of the mortgagor and the allowance by the probate court of the note secured by the mortgage, as a demand against the estate, without regard to the maturity of the mortgage debt, and it does not set limitations running against such action.^^ In the absence of administration on the estate of an owner of land who died in 1863, his debts would not be barred by the general statute of limitations, which does not run under such circumstances.^^ A note given by testatrix was not barred by special limitations where the executor never gave notice of his appointment as required by the Maine statute.*'' New York Code Civ. Proc, § 1843, authorizes suit against heirs on a debt of a de- cedent. Section 1844 declares that no such action shall be instituted till three years after letters granted, and section 406 that time during which an action is prohibited shall not be counted as a part cf the time limited. Testator made a payment on his note to plain- tiff October 21, 1898, and died May 31, 1899. Letters were issued July 10, 1899, and action brought against the heirs under section 1843, on January 17, 1908. It was held that the nine years within which plaintiff could have sued dated from the payment on the note, and not from death, and hence action was barred.** 64. Hildebrand v. Kinney, 172 Ind. 68. Hill v. Moore, 131 App. Div. 447, 87 N. E. 833, rev'g judg. (Ind. 365, 115 N. Y. Supp. 289, order aff'd App.), 83 N. E. 379. As to action 198 N. Y. 633, 92 N. E. 1086. Code for seduction against the administra- Civ. Proc. § 1844 is a statutory pro- tor of the seducer. See Gimbel v. hibition against the commencement Smidth, 7 Ind. 627. of an action, within section 406. Id. 65. Linn v. Ziegler, 68 Kan. 528, See also De Crano v. Moore, 50 App. 75 Pac. 489. Div. 361, 64 N. Y. Supp. 3. 66. Austin v. Shipman, 160 Mo. Where an administrator dies, the App. 206, 141 S. W. 425. Limita- right of his successor to compel an tions do not run in favor of an estate accounting by his personal represen- during the time there is no adminis- tative, as authorized by Code Civ. tration. Little v. Reid, 75 Mo. App. Proc. § 2606, is not barred by limita- 266. tions until after ten years from the 67. McGnire v. Murray, 107 Me. appointment of the n«w administra- 108, 77 Atl. 692. 944 Statutes of Limitation.' § 199c(3). Death of person jointly liable. Under California Code Civ. Proc, § 337, providing that xa action on any contract founded on an instrument in writing ex- ecuted in the state must be brought within five years, the bar of the statute as to a mortgagor is not affected merely by the death of a co-mortgagor before the note given with the mortgage is bar- tor. In re Leaser's Estate, 119 App. Div. 507, 104 N. Y. Supp. 213. As to the eflFect of administration of the estate of a decedent or want thereof on the application of statutes of limitations in different jurisdic- tions, reference may be made to the following authorities: V. S.— Updike V. Mace, 194 Fed. 1001 (D. C.) ; Alice E. Mining Co. v. Blanden, 136 Fed. 253 (C. C, Iowa) ; Piatt V. Hungerford, 116 Fed. 771 (C. C, N. Y.) ; Fidelity Ins., etc., Co. V. Mechanics' Sav. Bank, 97 Fed. 297, 38 C. C. A. 193, 56 L. E. A. 328 (C. C. A., Pa.). Colo. — McGovney v. Gwillim, 16 Colo. App. 284, 65 Pac. 346. Idaho. — Miller v. Lewiston Nat. Bank, 18 Idaho, 124, 108 Pac. 901. loioa, — German v. Heath, 139 Iowa, 53, 116 N. W. 1051; Malone v. Averill, 166 Iowa 78, 147 N. W. 135. A'j/.— Walker's Adm'r v. Turley, 28 Ky. Law Eep. 809, 90 S. W. 576; •Southern Contract Go's Assignee v. Newhouse, 23 Ky. Law Eep. 3141, 119 Ky. 704, 66 S. W. 730; Farris v. Hoskins, 23 Ky. Law Eep. 596, 63 S. W. 577; Mason's Adm'x v. Mason, 3 Ky. Law Eep. (abstract) 397; Jones V. Mitchell's Adm'r, 9 Ky. Law Eep. (abstract) 858. il/cZ.— Eirley v. Eirley, 103 Md. 452, 63 Atl. 962. Mass. — Corliss Steam Engine Co. V. Schumacher, 109 Mass. 416. Uioh. — Murphy v. Cady, 145 Miob. 33, 13 Detroit Leg. N. 412, 108 N. W. 493; Steuard v. Sellman's Estate, 178 Mich. 700, 141 N. W. 878. Miss. — Klaus v. Moore, 77 Miss. 701, 37 So. 613. Mont. — Whiteside v. Catching, 19 Mont. 394, 48 Pac. 747. Hev. — Schwart v. Stock, 26 Ner. 155, 65 Pac. 357. ff. G. — Matthews v. Peterson, 158 N. C. 133, 63 S. E. 731; Lowdcr T. Hathcock, 150 N. C. 438, 64 S. E. 194; Winslow v. Benton, 130 N. C. 58, 40 S. E. 840; Phifer v. Ford, 130 N. 0. 208, 41 S. E. 280; Copeland t. Collins, 122 N. C. 619, 30 S. E. 315; Person v. Montgomery, 120 N. C. Ill, 36 S. E. 645. y. J?.— Colonial & United States Mortg. Co. V. Flemington, 14 N. D. 181, 103 N. W. 939, 116 Am. St. Eep. 670. Ohio. — ^Hoiles v. Eiddle, 26 Ohio Cir. Ct. E. 363 ; Ira re Ward's Estate, 21 Ohio Cir. Ct. E. 753, 12 0. C. D. 44; Hoiles v. Eiddle, 74 Ohio St 173, 78 N. E. 219, 113 Am. St. Eep. 936. Or. — In re Morgan's Estate, 46 Or. 333, 77 Pac. 608. R. I. — Petition of Johnson, 15 B. I. 438, 8 Atl. 348. Term. — Stidham v. McCarver, (Ci. App.) 57 S. W. 212; Webb v. Br^i- ner, 58 Tenn. (11 Hcisk.) 305. Tex. — First Nat. Bank of New Bos- ton T. Daniel, (Cir. App.) 172 S. W. EXBCUTOES AND AdMINISTEATOES. 946 red."* Under Kentucky St., § 2552, where a surety on a note was dead at the time a judgment was rendered thereon, limitations were suspended during the time such surety had no personal repre- tentative and six months additional.™ Where a surety on a note paid a judgment thereon, the subsequent death of his cosurety sus- pended the running of limitations as to the time in which the surety must sue for contribution, until letters of administration were is- sued.''^ Though remedy against the principal, on a note of a prin- cipal and surety, is barred by limitations, yet, it not being barred against the estate of the surety because of the suspension of the statute by reason of his death, the claim may be proved against the estate.''^ Since creditors of a firm are not entitled to sue the surviv- ing parties pending administration of the firm assets in the pro- bate court on the death of a partner, limitations do not run against the creditors' claims pending such settlement.''^ If a suit be brought on a joint and several note against a debtor and the administrators of a co-debtor, as imder the N. Y. Code it may be, the latter are to 747; Herbert v. Herbert, (Civ. App.) 59 S. W. 594; Morgan v. BaJcer, (Civ. App.) 40 S. W. 27; Hanrick v. Gur- ley, 93 Tex. 458, 54 S. W. 347, judg. modified 93 Tex. 458, 55 S. W. 119, 56 S. W. 330; Groesbeck v. Crow, 91 Tex. 74, 40 S. W. 1028, rev'g judg. Crow V. Groesbeck, (Civ. App.) 39 S. W. 1003. Wash. — Frew v. Clark, 34 Wash. 561, 76 Pac. 85; Gleason v. Hawkins, 32 Wash. 464, 73 Pac. 533. W. Va. — Western Lunatie Asylum T. Miller, 29 W. Va. 326, 1. S. E. 740, 9 Am. St. Rep. 644. Wis. — Boyd v. Mutual Fire Ass'n, 116 Wis. 155, 90 N. W. 1086, 61 L. E. A. 918, 96 Am. St. Eep. 948, modi- fied 94 S. W. 171. 69. Hibernia Savings & Loan Soc. V. Boland, 145 Cal. 626, 79 Pac. 365. 70. Apperson v. Farmers' Nat. 60 Bank, 7 Ky. Law Rep. 153; Apper- son's Ex'r v. Farmers' Nat. Bank, 6 Ky. Law Rep. 743. See also Davis' Adm'r v. Auxier, 19 Ky. Law Rep. 719, 41 S. W. 767; Farmer v. Ed- wards, 9 Ky. Law Rep. (abstract) 816; Pusey v. Smith's Adm'r, 12 Ky. Law Reip. (abstract) 604. 71. Hinshaw v. Warren's Estate, 167 Mo. App. 365, 151 S. W. 497. 72. Charbonneau v. Bouvet, 98 Tex. 167, 82 S. W. 460. See also, as to suspension of limi- tation as to a guarantor or surety oh a note when the principal obligor is dead, Acers v. Acers, 32 Tex. Civ. App. 584, 56 S. W. 196. 73. Brigham-Hopkins Co. v. Gross, 30 Wash. 277, 70 Pac. 480, under Ballinger's Ann. Codes & St. §§ 6188, 6190. 946 Statutes of Limitation. be regarded, if the statute of limitations is pleaded, as if they had been sued separately, and the eighteen months are to be added.'* § 199c (4). Death after commencement of action. California Code Civ. Proc, § 581, as amended in 1889, requir- ing that no action shall be further prosecuted unless summons shall have been issued within one year and served within three years from bringing suit, includes an action in which defendant dies ;within the year.'^ Where an action on a note was commenced within the time limited, but defendant died and ^hile the first action was pending, no non-suit having been suffered or judgment arrested or reversed, and after the expiration of the time limited plaintiff brought an action in the probate court, such action was barred.'* 74. Parker v. Jackson, 16 Barb. (N. y.) 33. See, as to suspension of limitations against the estate of a de- ceased co-OTvner of property pur- chased at a joint venture, Freschsi V. Bellesheim, 14 N. Y. St. Rep. 610. See, as to suspension of limitations on death of person jointly liable in other jurisdictions: Ala. — Goldsmith v. Eichold, 94 Ala. 116, 10 So. 80, 33 Am. St. Eep. 97. v. C. — Buie V. Buie, 34 N. C. 87. Tenn. — Nfishville Bank v. Camp- bell, 15 Tenn. (7 Yerg.) 353. 75. Davis v. Hart, 123 Cal. 384, 55 Pac. 1060. 7G. Hill V. Pipkins, 73 Ark. 549, 81 S. W. 1216, under Sand. & H. Dig. Ark. § 4841. As to the rule in other jurisdic- tions, see: Conn. — Bass«tt v. McKenna, 52 Conn. 437. Md. — Parker's Ex'rs v. Fassit's Ex'rs, 1 Har. & J. 337. N. Y. — Jackson v. Horton, 3 Oaines, 197. 8. C. — ^Allen v. Roundtree, 1 Speers, 80. Ta. — Brown's Ex'rs v. Putn^, 1 Wash. 303. Teusts and Teustees. 947 CHAPTEE XX. Teusts and Teustees. Section 200. General rule. 201. Express trusts. 202. Assignees in bankruptcy, insolvency, etc 202. Cestui que trust in possession. 204. Guardians. 205. Executors as trustees. 206. Executor or administrator of a trustee. 207. Power to sell property. 208. Effect on cestui que trust when trustee is barred. Sale of trust estate. 209. Factors and agents. 210. Partners. 211. Acknowledgment by one partner. 212. How trustee may put statute in operation in Ms favor. 213. Exceptions to the rule relative to express trusts. 214. Stale trusts not favored in equity. 215. Constructive or resulting trusts. 216. Mistake of trustee in possession. 217. Funds of societies vested in trustees. 218. The liability of trustee for breach of trust creates trust debt. 219. Vendor and vendee of land. 220. Purchaser of property for benefit of another. 220a (1). Existence of trust. In general. 220a ( 2 ) . When relation exists in general. 220a ( 3 ) . Possession of property. 220a (4). Express or continuing trust. s ' 220a (5). What constitutes express or continuing trust. 220a (6). Resulting or implied trust. 220a ( 7 ) . What constitutes resulting or implied trust. 220a ( 8 ) . Constructive trust. 220a (9). What constitutes constructive trust. 220a (10). Kights of parties claiming under trustee. 220a (11). Termination of trust. 220b (1). Repudiation or violation of trust. Ij; general. , 220b (2). Necessity for disclaimer or repudiation. 220b ( 3 ) . What constitutes repudiation or violation of trust. 220b (4). Notice of repudiation. 948 Statutes of Limitation. § 200. General rule. It is well settled that a subsisting, recognized, and aclmowledged trust, as between the trustee and cestui que trust, is not within the operation of the statute of limitations.^ But this rule must be 1. Bridgraan v. Gill, 34 Beav. 302; Attorney-General v. Fishmongers' Co., 5 My. & Cr. 16; Wedderburn v. Wedderburn, 4 id. 41; Coate's Es- tate, 2 Pars. Sel. Gas. (Pa.) 258; Maury v. Mason, 8 Port. (Ala.) 211; Shibla V. Ely, 6 N. J. Eq. 181; Lyon IV. Marclay, 1 Watts (Pa.) 271; Ber- tine V. Varian, 1 Edw. (N. Y.) Ch. 343; Redwood v. Eeddick, 4 Munf. (Va.) 232; Evarts v. Nason, 11 Vt. 133; Lexington v. Lindsey, 9 Ky. (2 A. K. Mar.) 443; Chaplin v. Givens, 1 Rice (S. C.) Ch. 132; Pinson v. Ivey, 9 Tenn. (1 Yerg.) 296; Pinker- ton V. Walker, 6 Tenn. (3 Hayw.) 221; Kutz's Appeal, 40 Pa. 90; West V. Sloan, 56 N. E. (3 Jones Bq.) 102; Willard v. Willard, 50 Penn. St. 119; Byrant v. Puckett, 6 Tenn. (3 Hayw.) 352; Jones v. Person, 9 N. 0. (2 Hawks) 269; State v. McGowen, 37 N. C. (3 Ired. Eq.) 9; Armstrong V. Campbell, 11 Tenn. (3 Yerg.) 201; Cook V. Williams, 3 N. J. Eq. 209; Pugh V. Bell, 1 J. J. Mar. (Ky.) 399; Oliver v. Piatt, 41 U. S. (3 How.) 333, 11 L. Ed. 622; Thomas v. Floyd, 13 Ky. (3 Litt.) 177; Prevost V. Gratz, 19 U. S. (6 Wheat.) 481, 5 L, Ed. 311; Haynie v. Hall, 24 Tenn. (5 Humph.) 290; Boone v. Chiles, 35 U. S. (10 Pet.) 177, 9 L. Ed. 388; Simras v. Smith, 11 Ga. 195; Decouche v. Savetier, 3 Johns. (N. Y.) Ch. 190; Wilmerding v. Russ, 33 Conn. 67; Piatt v. Oliver, 3 Mo- Lean (U. S. C. C.) 267; Coster v. Murray, 5 Johns. (N. Y.) Ch. 533; Wood V. Wood, 3 Ala. 756. The statute cannot be pleaded to a rem- edy given by the legislature to en- force a trust. Bethune v. Dougherty, 30 Ga. 770. It is equaly true that fraud as trust is not within the statute. Kane V. Bloodgood, 7 Johns. (N. Y.) Ch. 90, 133; Hunter v. Spotswood, 1 Wash. (Va.) 145. A purchaser for a valuable con- sideration, if aflfected with notice, be- comes a trustee for the true owner, and will not be protected by the statute. Wamburzee v. Kennedy, 4 Desau. (S. C.) 474; Thayer v. Cram er, 1 McCord Ch. (S. Car.) 395, 398 As a rule, the statute does not oper ate in cases of fraud and of trusts but as soon as the fraud is dis covered it commences to run. Wam- burzee v. Kennedy, 4 Desau. (S. C. 474; Payne v. Hathaway, 3 Vt. 313 Sweat V. Arrington, 3 Hayw. (N. C. 139. The statute does not reach to matters of direct trust, as between trustee and cestui que trust, Coster V. Murray, 5 Johns. (N. Y.) Ch. 531; Turner v. Debell, 3 Marsh. (Ky.) 384; nor to parties standing in the relation of principal and agent, or factor, Murray v. Coster, supra. The statute cannot, either in a court of law or equity, protect a trustee against the demands of his cestui que trust, Thomas v. White, 13 Ky. (3 Litt.) 177; Lexington v. Lindsay, 9 Ky. (3 A. K. Marsh.) 445; or of per- sons claiming under him. Redwood Teusts ajstd Tbustees. 949 imderstood as applying only to those technical and continuing V. Eiddick, 4 Munf. (Va.) 322. So long as the trust subsists, the cestui que trust, cannot be barred. The cestui que trust, can only be barred by excluding the estate of the trus- tee. Cholmondeley v. Clinton, 2 Meriv. 360. Prevost v. Gratz, 19 U. S. (6 Wheat.) 497, 5 L. Ed. 311; Hemenway v. Gates, 23 Mass. (5 Pick.) 331. A legacy of trust is not within the statute, but after a length of time payment will be presumed; yet such presumption may be rebutted by facts convincing to a jury. Durdon V. Gaskill, 2 Yeates (Pa.) 368. In Van Rhyn v. Vincent, 1 McCord (S. C.) Ch. 310, the rule was held to apply only to teohnieal equitable trusts, and not to constructive trusts of which a court of law as well as a, court of equity have jurisdiction. If a iona fide purchaser without notice, who is a trustee by implica- tion, is to be affected by an equity, that equity must be pursued within a reasonable time. Shaver v. Ead- ley, 4 Johns. (N. Y.) Ch. 310; Thompson v. Blair, 7 N. C. (3 Murph.) 583. A trustee cannot avail himself of the statute without plain, strong, and unequivocal proof of his renunciation of the trust. Boteler v. Allington, 3 Atk. 453, 459. The possession of the cestui que trust is not adverse to the title of the trustee, nor is the posses- sion of the trustee adverse to his cestuis. Smith v. King, 16 East, 383 ; Keene v. Deardon, 8 id. 248; Smith v. Wheeler, 1 Vent. 138. A cestui que trust is " tenant at will " to the trustee, and the posses- eion of the cestui que trust is "the very possession in consideration of law of the trutee." Earl of Pomfret v. Lord Windsor, 3 Ves. 472; Leth- ieullier v. Tracy, 3 Atk. 738; Digh- ton V. Greenvil, 2 Ventr. 339. No conveyance by the cestui que trust can work a forfeiture of the legal es- tate of the trustee; it has been held that a fine or other alienation by ces- tui que trust for life does not work a forfeiture of his life estate. Sanders on Uses, 301; LethieuUier v. Tracy, 3 Atk. 729. The rule that trust and fraud are not within the statute of limitations is subject to this modifi- cation, that if the trust is consti- tuted by the act of the parties, the possession of the trustee is the pos- session of the cestui que trust, and no length of such possession will bar; but if a trust is constituted by the fraud of one of the parties, or arises from a decree of a court of equity, cr the like, the possession of the trustee becomes adverse, and the statute will run from the time the fraud is dis- covered. Thompson v. Blair, 7 N. C. (3 Murph.) 583; Van Rhyn v. Vin- cent, 1 McCord (S. C.) Ch. 310. An executor entering on lands of the estate of his testator, and occupy- ing them, is to be considered as hold- ing them in trust for the heirs or de- visees, unless he proves that he held adversely with notice to the heirs or devisees; in which case the proof lies- on him to establish the claim at law,, on an issue directed. Ramsay v. Deas, 3 Desau. (S. C.) 233. The stat- ute is not allowed to run in favor of a man who was employed to act aa agent, but purchased for himself. He is considered as a trustee, and his em- ployer shall be entitled to the bene- 950 Statutes of Limitatioit. trusts which are alone cognizable in a court of equity ;^ and trusts fit of the purchase. Hutchinson v. Hutchinson, 4 Desau. (S. C.) 77. See Bell V. Levers, 3 Yeates (Pa.) 26. In Starr v. Starr, 2 Ohio, 321, the court said : " That this trust was not form- erly declared or expressed between parties is no reason why it cannot ex- ist. The law is not to be evaded by contrivances of this nature. A trust tacitly created is more difficult to reach than one that is expressed; but where it is ascertained the conse- quence is attached to it." The general rule is, that after a sale of land, and before a conveyance of the legal title, the vendor is the trustee of the ven- dee, and the statute will have no op- eration. But where the vendor dis- avows the trust, and after having de- livered possession to the vendee makes a lease to a third person in opposition to the title of the vendee, and the lessee enters and holds pos- session, the jury may presume a dis- seisin; and if the vendee suffers twenty-one years to elapse without prosecuting his claim, it will be barred by the act of limitations. Pi- pher V. Lodge, 4 S. & E. (Pa.) 310. But to prevent length of time from barring a claim, on the ground that the possession of the defendant was fiduciary, such possession must have been fiduciary as to the plaintiff or those under whom he claims; its be- ing fiduciary as to any other person is not sufficient. Spotswood v. Dand- ridge, 4 Hen. & M. (Va.) 139. 2. Hayward v. Gunn, 82 111. 385; Partridge v. Wells, 30 N. J. Eq. 176; Prewett v. Buckingham, 28 Miss. 93; Tinnen v. Mebane, 10 Tex. 246; Paff V. Kinney, 1 Bradf. (N. Y. Surr.) 1; Cooke V. MoGinnis, 8 Tenn. (M. & Y.) 361; Carter v. Bennett, 6 Fla. 214; Presley v. Davis, 7 Rich. (S. C.) Eq. 10i5; Maury v. Mason, 8 Port. (Ala.) 311; Zacharias v. Zach- arias, 33 Pa. 452; Fox v. Cash, 11 Pa. 207; Heclcert's Appeal, 34 Pa. 483; Kane v. Bloodgood, 7 Johns. (N. Y.) Ch. 90; Sayles v. Tibbitts, 5 R. I. 79; Thomas v. Brinsfield, 7 Ga. 154; Finney v. Cochran, 1 W. & S. (Pa.) 112; Raymond v. Simonson, 4 Blacld. (Ind.) 77; White v. White, 1 Md. Ch. 53; Johnson v. Smith's Adm'r, 37 Mo. 591; Lexington, etc., R. Co. V. Pridges, 46 Ky. (7 B. Mon.) 556; McDonald V. Sims, 3 Ga. 383. The principle that the statute will not protect trustees applies only to express or technical trusts. Farnam V. Brooks, 26 Mass. (9 Pick.) 212; Hayman v. Keally, 3 Cranch C. C. 325; Bank v. Beverly, 43 U. S. 134; Pugh V. Bell, 34 Ky. (1 J. J. Mar.) 398; Harris v. King, 16 Ark. 123. In Kutz's Appeal, 40 Pa. St. 90, it was held that where money is held in trust, and therefore not recoverable at law but only in equity, the statute will not run. In Coster v. Murray, 5 Johns. (N. E.) Ch. 522, where the defendant received goods consigned to him on his own account and the account of the plaintiff, who paid one-third of the price, and was to re- ceive one-third of the proceeds; and the defendant, having sold the goods, refused to account to the plaintiff for his share, and set up the statute to bar the claim, this was held not a dealing between merchant and mer- chant, within the exception in the statute, but the defendant was held to be the factor of the plaintiff, and his liability a trust within the stat- Tetjsts and Teustees. 951 which arise from an implication of law, or constructive trusts, are not within the rule, but are subject to the operation of the statute,* ute. See also White v. Leavitt, 20 Tex. 703. In Hutchinson v. Hutch- inson, 4 Deaau. (S. C.) 77, where an agent for the purchase of land took a title in his own name for the benefit of the principal, it was held that the statute did not run against the prin- cipal's claim to the land. In Van Rhyn v. Vincent, 4 McCord (S. C.) 310, A. sent abroad goods by B., who having di6d, the goods were disposed of by an agent, and the proceeds were transmitted to C, who, it eeems, had no previous connection with A., aiid it was held that O. was not trustee for A., so as to relieve A.'s demand against him from the statute of limitations. But in Mc- Donald V. May, 1 Rich. Eq. (S. C.) 91, where a person purchased land at a sheriff's sale under an agreement to hold the property for the benefit of the debtor, it was held that a techni- "cal trust was thereby created upon which the statute did not run. But it seems that a purchase under such an agreement, the debtor to remain in possession and refund the money a,t an indefinite time, does not create a continuing trust which bars the statute. Hughes v. Hughes, Cheves (S. C.) 33. Where a sale of an infant's prop- erty was made by a master under a decree by which he was directed to sell, and apply the interest, and as much as might be necessary of the principal, of the proceeds, to the sup- port of the infant, it was held that he was a trustee, and that the stat- ute did not run against a suit, by the infant, for an account, until he had denied his liability. Houseal v. Gibbes, Bailey (S. C.) Ch. 483. So where a person gave to his children, by deed, property, real and personal, to be enjoyed by them after his death, himself retaining a life estate, it was held that he was a trustee for the children, and could not set up the statute of limitations against them, in consequence of his possession. Dawson v. Dawson, Rice (S. C.) Cr. 243. In Armstrong v. Campbell, 11 Tenn. (3 Yerg.) 201, A. being the owner of land warrants, he and B. entered into an agreement and coven- ants with each other, by which B. was to find the land, and was au- thorized to sell and convey the same, and to receive to his own use one- third of the purchase money, or other consideration received for the same, and he covenanted to pay, deliver, and transfer the other two-thirds to A., and it was held that this transac- tion constituted B. a trustee in rela- tion to the interest of A. by express contract, and that, though there were (ioncurrent remedies upon the con- tract at law and in equity, it was not within the statute. In Lafi'erty v. Turley, 35 Tenn. (3 Sneed) 157, it was held that where there is a con- current remedy at law the equitable bar from lapse of time is generally applied by analogy to the statute of limitations, but wJ\ere, as in cases of express trust, the matter is alone cognizaible in equity, the bar may be applied according to the merits of the case. 3. Edwards v. University, 21 N. C. 952 Statutes of Limitation. unless there has been a fraudulent concealment of the cause of (1 D. & B. Eq.) 335; Walker v. Walker, 16 S. & E. (Pa.) 379; Bu- ehan v. James, Speers (S. 0.) Ch. 375. " By the whole current of mod- ern authorities," says Hinman, C. J., in Wilmerding v. Euss, 33 Conn. 77, " implied trusts are within the stat- ute, and the statute begins to run from the time the wrong was com- mitted, hy which the person becomes chargeable as trustee by implica- tion." Kane v. Bloodgood, supra; Robinson v. Hook, 4 Mass. (U. S. ) 153. In Swindersine v. Miscally, Bailey (S. C.) Ch. 304, this rule was applied where an administrator be- came a purchaser at his own sale as administrator, for a fair price, and afterwards mortgaged the property to secure his private debts. The court held that the mortgagee, being a trus- tee by implication only, might avail himself of the statute. So in Haynie V. Hall, 24 Tenn. (5 Humph.) 390, where a father received a legacy for his minor child, it was held that by operation of law he became a trustee in respect thereto, and might avail of the statute. In Baubien v. Bau- bien, 64 U. S. (33 How.) 190, 16 L. Ed. 484, the court says, " In cases of an implied trust to be raised by evi- dence, equity obeys the statute." McDowell V. Goldsmith, 6 Md. 319; Lloyd V. Currin, 33 Ten. (3 Humph) 462; Murdock v. Hughes, 15 Miss. 219; Armstrong v. Campbell, 11 Tenn. (3 Yerg.) 301; Harlow v. De- hon. 111 Mass. 195; Manion v. Tits- worth, 57 Ky. (18 B. Mon.) 583; Haynie v. Hall, 24 Tenn. (5 Humph.) 290; Sheppards v. Turpin, • 3 Gratt. (Va.) 373; Cuyler v. Bradt, 3 Cai. Cas. (N. Y.) 336. The tirae generally fixed for enforcement of trust claims has been twenty years, but in some cases a shorter period is sufficient, and in others a longer one will not protect the trustee. In Phillips V. Holman, 36 Tex. 376, it was held that a contract wherein P. assigned and transferred to H. cer- tain stock certificates, in trust to be disposed of according to H.'s best judgment, P. to receive thereupon the original cost and half the profits rea- lized, with no stated time for per- formance and account, did not create that kind of " technical and continu- ing" trust which cannot be afi'eeted by the statute of limitations, and it devolved on H. to perform the obliga- tion and account within a reasonable time. Lapse of time does not bar ex- press trusts; especially where the trustee and those claiming under him have not asserted an adverse claim above two years, although the cestui que trust has neglected to claim the benefit of the trust for nearly forty years before. Pinson v. Ivey, 9 Tenn. (1 Yerg.) 396. In Alabama it is held that the lapse of twenty years with- out any acknowledgment of the ex- istence of the trust will constitute a presumptive bar to a proceeding of a legatee or distributee for a settle- ment of the estate; but that time is to be computed from the time when a settlement could first have been com- pelled, and not from the date of the trust, and that the running of the statute in favor of the sureties of aji executor or administrator does not bring him within the statute, as there is no statutory limitation to & Teusts and Tbustees. 953 action,* and the statute is as complete a bar in equity as at law. Courts of equity have always refused to assist a person who has slept upon his rights and shows no excuse for his laches in assert- ing them, and this is so, independent of any statute of limitations. Laches and neglect always have been discountenanced in equity.* "When the bill shows upon its face that the plaintiff, by reason of lapse of time and of his own laches, is not entitled to relief, the objection may be taken by demurrer.^ Therefore a trust, in trust. Greenlees v. Greenlees, 62 Ala. 336. But where there is a viola- tion of the terms of a trust, a right of action accrues at once, and the statute begins to run thereon from that time. Wilson v. Greene, 49 Iowa 251. 4. Speidel v. Henrioi, ISO U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718. In Loring v. Palmer, 118 U. S. 321, 6 Sup. Ot. 1073, 30 L. Ed. 211, it was held that laches could not be set up to defeat an equitable action where the delay was induced by the fraud on the part of the person setting it up. 5. Smith V. Clay, 3 Bro. Ch. 640; Piatt V. Vattier, 34 U. S. (9 Pet.) 405, 9 L. Ed. 173; McKnight v. Tay- lor, 42 U. S. (1 How.) 161, 11 L. Ed. 86; Bowman v. Wathen, 42 U. S. (1 How.) 189, 11 L. Ed. 97; Wagner v. Baird, 48 U. S. (7 How.) 234, 12 L. Ed. 681; Badger v. Badger, 69 U. S. (3 Wall.) 87, 17 L. Ed. 836; Marsh V. Whitmore, 88 U. S. ( 21 Wall.) 178, 32 L. Ed. 482; Sullivan v. Port- land & K. R. Co., 94 U. S. 806, 24 L. Ed. 324; Godden v. Kimmell, 99 U. S. 201, 35 L. Ed. 431. In Hume v. Beale's Ex'x, 84 U. S. (17 Wall.) 336, 348, 21 L. Ed. 602, the court, in dis- missing, because of an unexplained delay in suing, a bill by cestui que trust against a trustee under a deed, observed that it was not important to determine whether he was the trustee of a mere dry, legal estate, or whether his duties and responsi- bilities extended further. See also Bright V. Legerton, 29 Beav. 60, and 2 De Gex, F. & J. 606. 6. Maxwell v. Kennedy, 49 U. S. (8 How.) 210, 12 L. Ed. 1051; National Bank v. Carpenter, 101 U. S. 567, 25 L. Ed. 815; Lansdale v. Smith, 106 U. 8. 391, 1 Sup. Ct. 350, 37 L. Ed. 219. The established rule now is, in the Federal courts and in Massachu- setts and other States, that the de- fense of laches appearing on the face of the bill, may be taken by de- murrer, but it need not be so taken, as the court will notice it, though not pleaded at all. Taylor v. Holmes, 127 U. S. 489, 8 Sup. Ct. 1192, 32, iL. Ed. 179; Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942, 34 L. Ed. 434; Lant v. Manley, 71 Fed. 7, 16; Dawkins v. Penryhn, 4 A. 0. 51; Noyes v. Crawley, 10 Ch. D. 31; Eolfe V. Gregory, 31 L. J. Ch. 710; French v. Diekey, 3 Tenn. Ch. 302; Bell v. Johnson, 111 111. 374; supra, § 7; Fogg V. Price, 145 Mass. 513, 14 N. E. 471; Snow v. Boston Blank Book Manuf. Co., 153 Mass. 456, 3» 954: Statutes of Limitation. order to be exempt from the operation of the statute, must be direct or express, and of a nature not cognizable at law, but solely in equity.' If this limitation was not imposed, and the statute was not permitted to operate where an implied trust exists, the ex- ceptions would so be endless, as, in fact, every case of deposit or bailment in a certain sense creates a trust, and the instances in which an implied trust may be raised are almost innumerable; and there is much wisdom in the rule that restricts the saving operation of the statute to those express and continuing trusts which are not cognizable at law, and where the plaintiff has no legal title, the estate being vested in the trustee.* Strictly speak- N. E. 1116. In the last of these cases it was held that the withdrawal or waiver of a demurrer in equity, which assigned laches as one ground thereof, did not waive this defense. 7. Clay V. Clay, 70 Ky. (7 Bush) 95; Hay ward v. Gunn, supra; Mc- clane v. Shepherd, 21 N. J. Eq. 76; Partridge v. Wall, supra. In Har- low V. Dehon, 111 Mass. 195, an in- Etrument under seal, signed by P. and W., reciting that P. has received from the executors of the estate of W's father $2,000, and covenanting that until P. invests the sum as a special trust fund he will pay inter- est thereon to W. ; and when the sum is so invested, pay W. the income thereof, and, on the death of W., pay over the same, or the proceeds there- of, to W.'s administrator; and, in case of P.'s death before W., P.'s ex- ecutors are to execute the same trust — was construed to constitute at most only a constructive trust, and to be barred by the lapse of six years from the appointment of W.'s admin- istrator. Galvln's Estate, Myrick's Prob. (Cal.) 82. In Maine, under the statute, it has been held that a bill against heirs for a specific per- formance of a contract to convey land does not apply to a trust evidenced in writing. Frost v. Frost, 63 Me. 399. In McGuire v. Linneus, 74 Me. 344, it was held that where a town holds money belonging to an individ- ual, the statute does not begin to run against the cestui que trust until it has announced its intention to hold it adversely. In Hamer v. Sidway, 134 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 31 Am. St. Rep. 693, where S. died in 1887 without having paid any portion of the sum agreed upon, it was held that, under an agreement made in 1875, the relation of the par- ties thereafter was not that of debtor and creditor, but of trustee and ces- tui que trust; and that, therefore, the claim was not barred. See Mallory V. Gillett, 21 N. Y. 412; Belknap v. Bender, 75 N. Y. 466, 31 Am. Rap. 476; Berry v. Brown, 107 N. Y. 659, 14 N. E. 289; Beaumont v. Reeve, Shirley's L. C. 6; Porterfield v. But- ler, 47 Miss. 165; Duvoll v. Wilson, 9 Barb. 487; Robinson v. Jewett, 116 N. Y. 40, 22 N. E. 224. 8. Lockey v. Lockey, Prec. Ch. 518; Lawly V. Lawly, 9 Mod. 32; Cholmon- deley v. Clinton, Z Jac. & W. 171; Teusts and Tkustees. 955 ing, in their technical sense, trusts are known only in equity, and Blount V. Robeson, 56 N. C. (3 Jones Eq.) 14; Tucker v. Tucker, 1 McCord (S. C.) Ch. 176; Burham v. James, 1 Speers (S. C.) Eq. 375; Farnam v. Brooks, 26 Mass. (9 Pick.) 312; Fin- ney V. Cocrran, 1 W. & S. (Pa.) 118; Johnston v. Humphrys, 14 S. & R. (Pa.) 394; Walker v. Walker, 16 id. 379; Culbert v. Fleming, 5 Leg. & Ins. Rep. 19; Fox v. Lyon 33 Pa. 474; Clark v. Trindle, 52 id. 492; Best V. Campbell, 62 id. 476; Mussey V. Mussey, 2 Hill (S. C.) Eq. 496; McDowell -v. Goldsmith, 6 Md. 319; Sayles v. Tibbltts, 5 R. I. 79; Marsh V. Oliver, 1 N. J. Eq. 209; Martin v. Decatur Branch Bank, 31 Ala. 115. Suit by a cestui que trust against his trustee, when the trust is express and cognizable only in equity, are us- ually not within the statute of limi- tations as applied in equity, since the trustee's possession is ordinarily the possession of the cestui; and as their attitude towards each other is not hostile or antagonistic, there is no cause of action to be barred. Dyer v. Waters, 46 N. J. Eq. 484, 19 Atl. 129; Ryder v. Loomis, 161 Mass. 161, 36 N. E. 836; Low v. Low, 173 Mass. 580, 34 N. E. 257; Cone T. Dunham, 8 L. R. A. 647, and note. But when the trustee of an express trust has as- sumed a hostile attitude against the cestui by denying his right or dis- avowing the trust, or has committed a breach of trust causing loss to the estate, which has come to the cestui's knowledge, and has refused to make it good, the cestui has, by the weight of authority, a present cause of 8.o- tion as to which the statute of limi- tations will run, although numerous authorities hold that the statute does not run in equity, even against such a breach of an express trust. See Soar V. Ashwell, [1893] 2 Q. B. 390; Lindsley v. Dodd, 53 N. J. Eq. 69; Treadwell v. Treadwell, 176 Mass. 554. When, however, the trust arises merely by implication of law, laches may bar relief, as where beneficiaries delayed for thirteen years after knowledge of the trustee's misappro- priation of the trust funds to take action against those who had re- ceived the fimds, they were held to be deprived, by their laches, of the right to follow the trust funds. Mc- Laflin v. Jones, 155 111. 539, 40 N. E. 330. See Gillette v. Wiley, 126 111. 310, 19 N. E. 287, 9 Am. St. Rep. 587; Le Gendre v. Byrnes, 44 N. J. Eq. 372, 14 Atl. 621; Kennedy v. Winn, 80 Ala. 165; Day v. Brenton, 102 Iowa 482, 63 Am. St. Rep. 460, 475, note, 71 N. W. 538. A cestui que trust who appeals for relief to a court of equity must speci- fically set forth in his bill what were the impediments to an earlier prose- cution of his claim; how he came to be so long ignorant 'of his rights, the means used by the respondent to fraudulently keep him in ignorance, and how and when he first came to a knowledge of the matters alleged in the bill. Badger v. Badger, 69 U. S. (2 Wall.) 87, 95, 17 L. Ed. 836; Hardt v. Heidweyer, 152 U. S. 547, 559, 14 Sup. Ct. 671, 38 L. Ed. 548; Teall V. Slaven, 14 Sawyer (U. S.) 364. In Ames v. Brooks, 143 Mass. 344, 9 N. E. 737, the beneficiary's de- lay in enforcing a trustee's personal liability was held not to aJfect his right to receive the trust fund when collected by the trustee. 956 Statutes op Limitation. fall within its peculiar and exclusive jurisdiction; and this class of trusts, so long as they continue, as between trustee and cestui que trust cannot be reached by the statute of limitations.^ This doctrine rests upon the case of Cholmondeley v. Clinton, before 9. Story, J., in Baker v. Whiting, 3 Sum. (U. S. C. C.) 486; Kane v. Bloodgood, supra; Partridge v. Wells, 30 N. J. Eq. 176; Greenwood v. Greenwood, 5 Md. 334; Lowe v. Wat- kins, 40 Oal. 547; Bourne v. Hall, 10 R. I. 144; Baylor v. Digamette, 13 Gratt. (Va.) 152; Hostetter v. Hoi- linger, 117 Pa. 606; CoUard v. Tuttle, 4 Vt. 491; People v. Oran, 121 111. 650; Buckingham v. Ludlam, 37 N. J. Eq. 144; MoClane v. Shepherd, 21 id. 76. No lapse of time bars a di- rect trust until it is repudiated, be- cause until that time no right of ac- tion accrues to the cestui que trust. Eobinson v. Robinson, 5 Lans (N. Y.) 165; Bigelow v. Catlin, 50 Vt. 410. In Rushing v. Rushing, 42 N. J. Eq. 594, it was held that the statute did not apply where the cestui is the wife of the trustee. In Comstock's App., 55 Conn. 214, the court held that money received by the husband from his wife's separate estate was re- ceived by him as statutory trustee, and therefore that the statute did not run in his favor. While the trustee, who has never repudiated his trust, is in .possession of the trust estate the statute does not run. Gilbert v. Sleeper, 71 Cal. 290; Humphrey v. Clearfield Co. Nat. Bank, 113 Pa. 417. In Price v. Mul- ford, 107 N. Y. 303, 14 N. E. 298, reversing 36 Hun, 247, it was held that where one receiving money in his own right is afterwards by evidence or construction changed into a trus- tee, he may plead the statute of limi- tions as a bar in an action to recover the money. In Hovenden v. Annesley, 3 Sch. & Lef. 607, Lord Redesdale thus states the reason for this rule: "If a trus- tee is in possession, and does not ex- ecute his trust, the possession of the trustee is the possession of the cestui que trust; and if the only circum- stance is that he does not perform his trust, his possession operates nothing as a bar, because his poss«s- sion is according to his title." This doctrine is in obedience to the rule that equity will give effect to th« sta- tute of limitations in all cases where there is a concurrent jurisdiction at law and in equity. Roosevelt v. Mark, 6 Johns. (N. Y.) Ch. 266; Mann v. Fairchild, 2 Keyes (N. Y.) 106; Prevost v. Gratz, 19 U. S. (6 Wheat.) 431, 5 L. Ed. 311; Union Pac. Rail- road Co. V. Durant, 95 U. S. 576, 24 L. Ed. 391; Lewis v. Hawkins, 23 Wall. (U. S.) 119; Atty.-Gen. v. Pur- mont, 5 Paige (N. Y.) Ch. 620; flark V. Ford, 3 Keyes (N. Y.) 170; Staf- ford v. Bryan, 1 Paige (N. Y.) Ch. 239; Spoor v. Wells, 3 Barb. (N. Y.) Ch. 199; Lindsay v. Hyatt, 4 Edw. (N. Y.) Ch. 97; Frost v. Frost, id. 733. A solicitor to a trust, into whose hands the trustees have permitted the trust funds to come, is in position of an express trustee as to such funds; or, if regarded as a stranger to the trust, having received the money under a breach of trust in ■which he concurred, his trust is still Trusts and Teustees. 957 cited, and has been uniyersally adopted in the courts of this coun- trj, as well as in England, ever since. The reason why express trusts are treated as not being within the statute of limitations is because the possession of the trustee is presumed to be the possession of the cestui que trust}" But to this rule there is this qualificatioii and that is, that when the trustee openly disavows the trust, and clearly and unequivo- cally sets up a right and interest adverse to the cestui que trust, and which is made known to the latter, the statute begins to run in his favor.^^ express, as he has assumed to act and has acted as a trustee. Soar v. Ash- well, [1893] 2 Q. B. 390. See Heynes V. Dixon, [1900] 2 Ch. 561; In re Lands Allotment Co., [1894] 1 Ch. 616. A cause of action for negligence and concealment in advising a client to invest on a mortgage dates, as to limitation, from the time of the negli- gent act, and the duty to disclose does not continue from day to day. Wood V. Jones, 61 L. T. 551. 10. Union Pac. E. R. Co. v. Durant, 95 U. S. 576, 24 L. Ed. 391; Prevost V. Gratz, 19 U. S. (6 Wheat) 481, 5 L. Ed. 311; Speidel v. Henriei, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718. 11. Philippi V. Philippi, 115 U. S. 151, 5 Sup. Ct. 1181, 29 L. Ed. 336; Willison v. Watkins, 28 U. S. (3 Pet.) 43, 7 L. Ed. 596; Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. 3, 27 L. Ed. 69; 01iv«r v. Piatt, 44 U. S. (3 How.) 333, 11 L. Ed. 622; Kane v. Bloodgood, 7 John. Ch. (N. Y.) 90; Robinson v. Hook, 4 Mason (U. S.) 139; Boone v. Chiles, 35 TJ. S. (10 Pet.) 177, 9 h. Ed. 388; Seymour v. Freer, 75 U. S. (8 Wall.) 202, 19 L. Ed. 306. In Speidel v. Henriei, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718, Mr. Justice Gray says: " As a general rule, doubtless, length of time is no bar to a trust clearly estab- lished, and express trusts are not within the statute of limitations, be- cause the possession of the trustee is presumed to be the possession of his cestui que trust. Prevost v. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 311; Lewis V. Hawkins, 90 U. S. (23 Wall.) 119; 23 L. Ed. 113; Union Pac. R. R. Co. V. Durant, 95 U. S. 576, 24 L. Ed. 391. But this rule is in accordance with the reason on which it is founded, and, as has been clearly pointed out by Chancellor Kent and Mr. Justice Story, subject to this qualification: that time begins to run against a trust as soon as it is openly disavowed by the trustee, in- sisting upon an adverse right and in- terest which is clearly and unequivo- cally made known to the cestui que trust as when, for instance such transactions take place between the trustee and the cestui que trust as would in case of tenants in com- mon amount to an ouster of one of them by the other." Kane v. Bloodgood, 7. Johns. Ch. 90; Robin- son v. Hook, 4 Mason (U. S.), 139, 152; Baker v. Whiting, 3 Sumn. (U. 958 Statotes of Limitation. § 201. Express trusts. An express trust must be actually expressed in terms by deed, will, or some writing, or in some manner so as to vest the legal es- tate in the trustee. In an English case,^^ Lord Westbury said that " to create an express trust two things must combine, — there must be a trustee with an express trust, and an estate or interest vested in the trustee." To create an express trust in lands, under the statute of frauds, it must be created, or evidenced in writing;^' and if it is not created in writing, it must be proved by a writing under the hands of the party to be charged." In Vermont, it is S.) 475, 486; Oliver v. Piatt, 44 U. S. (3 How.) 333, 11 L. Ed. 633. See In re Davis, [1891] 3 Ch. 9; In re Barker, [1893] 2 Ch. 491; Riddle V. Whitehill, 135 U. S. 621, 10 Sup. Ct., 924, 34 L. Ed. 283; Alsop v. Riker, 155 U. S. 448, 460, 15 Sup. Ct. 163, 39 L. Ed. 318; Gildersleeve v. N«vir Mexico Mining Co., 161 U. S. 573, 16 Sup. Ct. 663, 40 L. Ed. 813; Whitney v. Eox, 166 U. S. 637, 17 Sup. Ct. 713, 41 L. Ed. 1145, supra, § 58, note 1. The statute of limitations does not begin to run in favor of a trustee against the cestui que trust until the former has repudiated the trust, and knowledge of the repudiation has come home to the latter. Childs v. Jordan, 106 Maas. 321; Jones v. Mc. Dermott, 114 Mass. 400; Davis v. Co- burn, 128 Mass. 377; French v. Mer- rill, 133 Mass. 528 ; Dickinson v. Leo- minster Savings Bank, 152 Mass. 49, 25 N. E. 13, 2 Perry on Trusts (5th ed.), §§ 863, 865, and notes. As the statute of limitations does not ex- tinguish a debt, so it does not affect a trust created for its payment, so long as the trust subsists. Campbell v. Maple, 105 Pa. 304, 307; Town- send V. Tyndale, 165 Mass. 293, 43 N. E. 107, 52 Am. St. Rep. 513. But a trustee's claim, known to the bene- ficiary, that he has fully accounted for and turned over the trust prop- erty that was in his possession, must be attended to, as limitation against a claim upon th« trustee to account commences to run from the time of such knowledge. Wolf v. Wolf, 97 Iowa, 279, 66 N. W. 170, in which case the plaintiff placed his property with another for payment of his debts. See Jones v. Home Savings Bank, 118 Mich. 155, 76 N. W. 323, 74 Am. St. Rep. 377. A savings bank so far holds a trust relation to its depositors that when it sets up the fact of a demand and no- tice in its own defense, and hot the want thereof, six years before action brought, it must show a denial or re- pudiation of liability on its part. Dickinson v. Leominster Savings Bank, supra. See Campbell v. Whor- iskey, 170 Mass. 6'3, 48 N. E. 1070. 12. Dickinson v. Teasdale, 1 De G. & J. Sm. 52. See In re Frazer, 93 N. Y. 339. 13. Hovey v. Holcomb, 11 111. 660; Eldridge v. See Yup Co., 17 Cal. 44. 14. Unitarian Society v. Woodbury, 14 Me. 281; Brown v. Brown, 1 Teusts and Teustees. 959 held that an express trust, except in lands, may he created without writing f^^ and generally it may he said that trusts in personal prop- erty may he created and proved hy parol,^^ and so, also, a mere resulting or constructive trust may he estahlished hy parol," as the statute of frauds has no application to it,^* even though it relates to real estate ; and where land is purchased in the name of one person, and the consideration is paid by another, the person in whose name the deed is taken holds the land in trust for the person who furnished the money, and the trust may he estah- lished by parol ;" but not where the person taking the conveyance Strobh. (S. C.) Eq. 363; Macoabbiri T. Cromwell, 7 G. & J. (Md.) 157; Hertle v. McDonald, 3 Md. Ch. 128; Rutledge v. Smith, 1 McCord (S. C.) Ch. 119; Wright v. King, Harr. (Mich.) Ch. 12; Riggs v. Swan, 59 N. C. (6 Jones Eq.) 118; Steere v. Steere, 5 Johns. (N. Y.) Ch. 1; James v. Fulcrod, 5 Tex. 512 ; Peaslee V. Barney, 1 D. Chip. (Vt.) 331; lane v. Ewing, 31 Miss. 73. 15. Porter v. Bank of Rutland, 19 Vt. 410. 16. Kirkpatrick v. Davidson, 3 Ga. 297; Saunders v. Harris, 38 Tenn. (1 Head) 185; Gordon v. Gordon, 10 Ga. 534; Kimball v. Morton, 5 N. J. Eq. 26; Hooper v. Holmes, 11 id. 122; Higgenbottom v. Peyton, 3 Rich. (S. C.) Eq. 398; Day v. Roth, 18 N. Y. 448. 17. Hovey v. Holcomb, 11 111. 660; Enos V. Hunter, 9 id. 211; Farringer T. Ramsay, 4 Md. Ch. 33 ; Slaymaker T. St. John, 5 Watts (Pa.) 37; Kelly T. Mills, 41 Mo. 367; Farrington v. Barr, 36 N. H. 86; Cloud v. Ivje, 28 Mo. 578. 18. Peabody v. Tarbell, 56 Mass. ( 3 Cush.) 326; 'Leakey v. Gunter, 25 Tex. 400; Dean v. Dean, 6 Conn. 385; Caple V. MeCollum, 37 Ala. 461 ; Mc- Guire v. Ramsey, 9 Ark. 518; Hauff V. Howard, 56 S. C. (3 Jones Eq.) 440; Jackson v. Matsdorf, 11 Johns. (N. Y.) 91. 19. Barron v. Barron, 34 Vt. 375; Osborne v. Endicott, 6 CaJ. 149 ; Bay- les V. Baxter, 33 id. 575; Millard v. Hathaway, 37 id. 119; Smith v. Stra- han, 16 Tex. 314; Neill v. Keith, 5 id. 23; Lang v. Steiger, 8 id. 460; Strimpfler v. Roberts, 18 Pa. 283; Lynch v. Cox, 33 id. 265; Lyford v. Thurston, 16 N. H. 399; Bruce v. Roney, 18 111. 67; Smith v. Sackett, 10 id. 534; Page v. Page, 8 N. H. 187; Johnson v. Dougherty, iS N. J. Eq. 406; Williams v. Hollingsworth, 1 Strobh. (S. C.) Eq. 103; Thomas v. Walker, 35 Tenn. (6 Humph.) 93; Taliaferro v. Taliaferro, 6 Ala. 404; Dorsey v. Clarke, 4 H. & J. (Md.) 551; Claussen v. La Franz, 3 Iowa, 437; Murdoek v. Hughes, 15 Miss. 319; Paul v. Chouteau, 14 Mo. 580; Hollis V. Hayes, 1 Md. Ch. 479; Bank V. Carrington, 7 Leigh (Va.) 566; Creed v. Lancaster Bank, 1 Ohio St. 1;' Ragan v. Walker, 1 Wis. 537; Pin- ney v. Fellows, 15 Vt. 535. 960 Statutes op Limitation. also furnishes the money to pay for the same,^ nor where a per- eon conveys land to another absolutely, under an agreement that he shall reconvey upon request.^^ "A trust," says the court in Massachusetts,^^ "must result, if at all, at the instant the deed passes," and this is the general rule.^^ Where it is attempted to avoid the bar of the statute on the ground that the possession of the defendant is fiduciary it must be shovm that it is fiduciary in respect to the plaintiff, or those under whom he claims; it is not sufficient that it is fiduciary as to a third person.^ § 202. Assignees in bankruptcy, insolvency, etc. It is held that an assignee in bankruptcy, after the property of the bankrupt is vested in him, becomes a trustee for the creditors, and, from that time the statute ceases to run against them.^^ The 20. Dorsey v. Clarke, 4 H. & J. (Md.) 551; Fawke v. Slaughter, 10 Ky. (3 A. K. Mar.) 56. In sample v. Coulson, 9 W. & S. (Pa.) 62, held that a trust in lands cannot be estab- lished by the proof of parol declara- tions made by the purchasers of land at or after the sale. Gee v. Gree, 3a Miss. 190 ; Francestown v. Deering, 41 N. H. 438; Pinnock v. Clough, 16 Vt. 500; Alexander v. Tams, 13 111. 221: Cutter V. Tuttle, 19 N. J. Eq. 549: Barnet v. Dougherty, 33 Pa. 371; Barnard v. Jewett, 97 Mass. 87; Steere v. Steere, 5 Johns. (N. Y.) Ch. 1; Bernard v. Bougard, Harr. (Mich.) 130; Forsyth v. Clark, 3 Wend. (N. Y.) 637; Mahorner v. Harrison, 21 Miss. 53; Rogers v. Murray, 3 Paige (N. Y.) Ch. 390; Perry v. McHenry, 13 III. 227; Botsford v. Burr, 2 Johns. (N. Y.) Ch. 205; Foster v. Trustees, 3 Ala. 302. If several persons fur- nish each a part of the purchase money, a trust arises in favor of each in proportion to the amount of the consideration furnished by him. Teb- betts V. Tilton, 31 N. H. 273; Baum- gartncr v. Guessfdd, 38 Mo. 36; Fin- ney V. Fellows, 15 "Vt. 525 ; Chadwick V. Felt, 35 Pa. 305; Buck v. Swazey, 35 Me. 41; Shoemaker v. Smith, 30 Tenn. (11 Humph.) 81. But it is held that the part payment must be a definite part of the purchase money, as one-half, one-third, or the like. Sayre v. Townsend, 15 Wend. (N. Y.) 647; 21. Dean v. Dean, 6 Conn. 285 ; Tit- comb V. Morrill, 92 Mass. (10 Allen) 15. 22. Gould V. Lynde, 114 Mass. 366. 23. Midmer v. Midmer, 26 N. J. Eq. 299; Sale v. McLean, 29 Ark. 613; Payne v. Patterson, 77 Pa. 124. 24. Spotswood v. Dandridge, 4 H. 4 M. (Va.) 139. 25. Ex parte Eoss, 2 Glyn & Jam. 46, where, upon appeal, the Lord Chancellor said: "The efifect of the commission is clearly to vest the property in the assignees for tho Textsts and Tetjstees. 961 same rule also applies to insolvent debtors who avail themselves of insolvency statutes, or who are forced into insolvency by their creditors, and the statute is suspended from the time when notice of the proceedings is given in the manner provided by law.^^ So, too, this rule applies when an insolvent debtor makes an assign- ment under the statute for the bemefit of his creditors, and it is held in such cases that the statute ceases to run from the date of the assignment.^' The discharge of a debtor under insolvent laws does not suspend the running of the statute in his favor.^* T)enefit of creditors, and therefore they are in effect trustees; and it is an admitted rule that unless debts are already barred by the statute of limitations when the trust is created, it is not afterwards affected by lapse of time." See In re Eldridge, 13 Nat. Br. No. 12, 1875. 2G. Minot v. Thacher, 48 Mass. (7 Met.) 348. In all cases of concur- rent jurisdiction, where a party has a legal and equitable remedy in regard to the same subject-matter, courts of equity obey the law, and give to the statute the same effect and operation in the one court as in the other. Du- gan V. Gittings, 3 Gill (Md.) 138; Hertle v. Schwartze, 3 Md. 366; Kane -V. Bloodgood, 7 Johns. (N. Y.) Ch. ■90; In re Leiman, 32 Md. 235, 3 Am. E.ep. 133. By the insolvent laws of Maryland property vested in the trus- tee is no longer within the reach of process by the creditors, and the in- solvent, being discharged from the payment of his debts, is no longer liable to suit, and the trustee being answerable only for a breach of trust, no proceedings can be instituted against him until the ratification of the audit, because, until then, and notice thereof, he is not guilty of a 61 breach of trust. See Wiliams v. Wil- liams, 3 Md. 163; Buckey v. Culler, 18 id. 418; Ex parte Ross, 2 Glyn & Jam. 46; Minot v. Thayer, 48 Mass. (7 Met.) 348. In Strike's Case, 1 Bland (Va.) 57, where the proceed- ing was to set aside certain fraudu- lent conveyances, and for a sale of the property for the benefit of creditors, and although in the disposition of some of the questions which arose, the Chancellor likened it to a case of insolvency, the distinct question in regard to the statute of limitations raised by these appeals did not arise, and cannot be said to have been di- rectly passed upon. This question was decided in Strike v. McDonald & Son, 2 H. & G. (Md.) 191. 27. Willard v. Clark, 48 Mass. (7 Met.) 435. In Heckert's Appeal, 24 Pa. 482, the court held that an as- signment for the benefit of creditors is a trust exclusively cognizable in equity and that the trustee could not interpose the statute of limitations to the claim of a creditor. 28. Shoenberger v. Adams, 4 Watts (Pa.) 430; Gest v. Heiskill, 5 Rawle (Pa.) 134; West v. Creditors, 1 La. An. 365. 962 Statutes op Limit atiou. § 203. Cestui que trust in possession. Where a cestui que trust under an express trust is in possession of the trust estate, lie is held to occupy the relation of tenant at wiU to the trustee,^' and consequently no lapse of time will give him a title as against the trustee.^" But this rule only holds as between the trustee and cestui que trust, and does not apply where an as- signee of the cestui que trust, or other person claiming under him, is in possession, as such persons are not precluded by the fact that the property is subject to a trust from availing themselves of the benefit of the statute f^ nor does it apply to a constructive trustee in possession, as a purchaser holding under an agreement to pur- chase. This latter doctrine was affirmed in a case before the United States Supreme Court,^^ and the court say : " Equity makes the vendor without deed a trustee for the vendee for the conveyance of the title; the vendee is a trustee for the payment of the purchase money, and the performance of the terms of the purchase. But the vendee is in no sense the trustee of the vendor as to the possession of the property sold. The vendee claims and holds it of his own right, for his own benefit, subject to no right of the vendor, save the terms which the contract expresses; his possession is therefore adverse as to the property, but friendly as to the performance of the conditions of the purchase." ^^ The vendor of lands under an executory contract, having performed, holds the lands in trust for the vendee, and continues to do so until he manifests an intention to hold them as his own;^* and 29. Freeman v. Barnes, 1 Vent. 86. U. S. (7 Wheat.) 535, 5 L. Ed. 516; 30. Eeade v. Eeade, 8 T. R. 118; Stanway v. Rook, supra. Keen v. Deardon, 8 East, 248; Pom- 33. In Garrard v. Tuck, 8 C. B. 231, fret V. Windsor, 3 Ves. 272; Smith under the Statute 3 & 4 Wm. IV., it V. King, 16 East 383; Garrard v. it said: "The object of the statute Tuck, 8 C. B. 231; Burrell v. Egre- is to settle the rights of persons ad- mont, 7 Beav. 305; Jacobs v. Phillips, versely litigating, not to deal with 10 Q. B. 130. cases of trustee and cestui que trust, 31. Melling v. Leake, 16 C. B. 652; where there is but one simple inter- Stanway v. Rock, 4 M'. & G. 30. est, viz., that of the person benefi- 32. Blight's Lessee v. Rochester, 20 cially interested." 34. Hemming v. Zimmerschitte, 4 Teusts and Teustebs, 963 'the same rule prevails as to one who enters into possession under a contract to purchase ^^ until after the purchase money is due, and from that period the statute begins to run in his favor.^^ If a portion of trust funds, the income of which is to be paid to a married woman for her life, and after her death to her husband for his life, with remainder over of the principal fund, is lent to the husband upon his note, payable with interest semi-annually, and it is agreed by all the parties that the trustee shall not collect the interest, in order to avoid the trouble of receiving the same from the husband and paying it over to the wife, and in pursu- ance of this agreement the trustee omits for more than six years to collect the interest, the note is not thereby barred by the statute of limitations; but the trustee may set off the same in equity, after the wife's death, against a claim of the husband for the income.^' § 204. Guardians. While the relation of guardian and ward subsists, the guard- ian stands in the relation of trustee to the ward, and the statute is not applicable to his account ;^^ and even after the relation is terminated, it has been held that the statute will not bar a guardian's claim against his ward if the delay is sufficiently explained;^' but there would seem to be no good ground for such a doctrine, and the better rule seems to be that the statute begins to run from the termination of the guardianship,*" ex- Tex. 159. The rule is that after a 35. Richardson v. Broughton, 3 N. sale of real estate, and before a con- & M. (S. C.) 417; Richards v. M'Kie, veyance, the vendor is trustee of the 1 Harp. (S. C.) Ch. 184. legal title for the vendee; and theven- 36. Ray v. Goodman, 33 Tenn. (1 dor's possession, while it can be rea- Sneed) 586. sonably supposed to be in accordance 37. Upham v. Wyman, 89 Mass. (7 with the trust, will be construed to Allen) 499. be that of the vendee, and the statute 38. Kimball v. Ives, 17 Vt. 430; of limitations will not operate. Gra- Mathes v. Bennett, 31 N. H. 304. ham V. Nelson, 24 Tenn. (5 Humph.) 39. Kimball v. Ives, supra. 605. 40. Taylor v. Kilgore, 33 Ala. 214. 964 Statutes of Limitation. cept in cases where the cause of action arises from matters oc- curring after the guardianship has ceased.*"- § 205. Executors as trustees. Executors are technically trustees of the property of their testa- tor, and consequently cannot, as against the beneficiaries under the will, set up the statute of limitations to bar their claims, so long as the relation exists.*^ A legacy may be so held as to be a trust and where the executor has become a trustee of a legacy for the legatee the ordinary rules that exist between trustee and cestui que trust apply and the legatee will not be barred by any lapse of time.^ This happens more readily in the case where the executor is also expressly a trustee than where he is simply executor. Where an executor upon trust, who has therefore the double character of executor and trustee, has set apart and appropriated a sum to satisfy a certain legacy, he is considered to have changed the character of executor for that of trustee,^^ as much as if he had been trustee only, and a different person as executor had transferred to him the money. In a case before cited,*^ an executor upon trust had assented to a specific legacy, and it was held that the legacy 41. Shearman v. Akins, 21 Mass. (4 not depend upon the statute of limi- Pick.) 283. tations, but upon the rule that, in- 48. Norris's Appeal, 71 Pa. 106; dependency of that statute equity Arden v. Arden, 1 Johns. (N. Y.) Ch. will not assist a person who has slept 313; Decouche v. Savetier, 3 id. 190; upon his rights, and has acquiesced Dillebaugh's Estate, 4 Watts (Pa.) for a great length of time. St. Paul's 177; Ward v. Reeder, 2 H. & M. Church v. Atty.-Gen., 164 Mass. 188, (Md.) 145; Dundon v. Gaskill, 3 200, 41 N. E. 231; see supra, §§ 58- Yeates (Pa.) 271. 60, and notes. Iiength of time and neglect on the 43. Phillipo v. Munnings, 2 Myl. & part of the cestui que trust furnish a Cr. 309. rebuttable presumption that an exe- 44. Byrchall v. Bradford, 6 Maidd. cutor or administrator has paid over 13, 235; Dix v. Burford, 19 Beav. to and distributed among those en- 409; Brougham v. Poulett, 19 Beav. titled to them the funds and property 133. in his hands. Fuller v. Cushman, 170 45. Dix v. Burford, supra. Mass. 286, 49 N. E. 631. This does Teusts and Tetjstees. 965 became thereby clothed with a trust. An executor in trust becomes a trustee of a residue as soon as it is ascertained/" and he may be a trustee either by virtue of the wording of the will, or by implication arising from his acts. In the latter case, if the legacy is bequeathed simply, yet the executor may make himself a trus- tee by implication, by appointing assets for a particular legacy, although, as a fact, in most of the cases the executor had been made a trustee by the terms of the will. The reason why an executor should not be permitted to set up the statute to bar a legacy is because his retention of the money is consistent with the capacity in which he holds it, and indicates no intention on his part to claim it as his own.*'' But if an execu- tor should give notice to a legatee that unless a legacy was claimed within a certain period he would not pay it, after the lapse of that period the statute would undoubtedly run in his favor, because from that time he is treated as having disavowed his trust, *^ as such notice would be equivalent to a notice that from that time he should hold the funds adversely.*' Long delay in making a demand for a legacy, when the party entitled knows of his rights thereto, raises a presumption, either that it has been paid to him, or that he intended to relinquish his claim to it.^" 46. Willmott V Jenkins, 1 Beav. 401 ; the legacy over to A. B. in trust for Ex Parte Dover, 5 Sim. 500; Daven- the legatee, and it had actually been port V. Stafford, 14 Beav. 319, 331; paid over. A. B. would then be a Dinsdale v. Dudding, 1 Y. & C. Ch. trustee for the legatee. So, too, the 265; Freeman v. Dovpding, 2 Jur. N. executor, when he has retained that S. 1014; Downes v. Bullock, 25 Beav. sum of money, is in exactly the same 54; Bullock v. Downes, 9 H. L. C. 1. situation." See Ex pa/rte Dover, 5 In Tyson v. Jackson, 30 Beav. 384, Sim. 500. Romilly, M. E., said : " It is clear, 47. Kane v. Bloodgood, supra. . . . when an executor retains the money 48. Eobson v. Jones, 27 Ga. 266. for payment of the legacy, that he be- 49. Robson v. Jones, supra; Lewis comes, as in the ease of Phillipo v. v. Castleman, 27 Tex. 407; Colemiin Munnings, a trustee of the particular v. Davis, 2 Strobh. ( S. C. ) 334. fund or sum of money retained dis- 50. Thompson v. M'Gaw, 2 Watts tinctly from his character of execu- (Pa) 161; Higgins v. Crawford, 3 tor. It is as distinct as if the testa- Ves. Jr. 573; Parker v. Ash, 1 Vern. tor had directed his executor to pay 256. Thus, where a bill to recover a 966 Statutes of Limitation. But each Case depends upon its peculiar circumstances;^^ and where a party is ignorant of his rights, an account will be allowed after a very considerable time has elapsed.^^ An executor does not cease to be a trustee upon a settlement of his accounts in the proper court, but he still holds the assets remaining in his hands for the purposes of the will, and not adversely to it,^^ unless at the time of the settlement of his accounts, and afterwards, he denied that it was due, in which case the statute begins to run from the date of the settlement;^* and in some cases such denial may be presumed.^^ A bequest of personal property to an executor " in trust " to pay debts does not in any respect change his relation to the creditors, or in any manner change the operation of the statute, because in law executors are regarded as trustees for the creditors of his testator, and there is nothing added to his legal liability from the mere circumstance of the testator having de- clared in express terms that the estate shall be subject to the payment of his debts.^^ But where the testator creates a trust for the payment of certain creditors, naming them, the rule would doubtless be otherwise.^^ But a bequest of real estate in trust to pay debts stands upon a different footing, because it imposes upon the devisee a duty in excess of his legal liability, unless the legacy to a married woman was filed 53. Thompson v. M'Gaw, 2 Watts thirty-one years after the death of (Pa.) 161. the testator, twenty-four years after 54. App v. Dreisbach, 3 Eawle the settlement of the estate, and sev- (Pa.) 287; Doebler v. Snavely, 5 enteen years after the death of the Watts (Pa.) 225. executor, and no cause for the delay 55. Webster v. Webster, 10 Ves. 93; was shown, the bill was dismissed on State v. Blackwell, 20 Mo. 97; Fish«r the ground of a presumption that the v. Tucker, 1 McCord (S. C.) 176. demand had been paid, arising from 56. Scott v. Jones, 4 CI. & F. 382; the lapse of time. Peacock v; New- Proud v. Proud, 32 Beav. 234; Ough- bold, 4 N. J. Eq. 61. terloney v. Powis, Amb. 331; Anon., 51. Dean v. Dean, 9 N. J. Eq. 435; 1 Salk. 154; Blakeway v. Strafford, Pickering v. Stafford, 2 Ves. Jr. 584. 2 P. & W. 373; Andrews v. Brown, 52. Pickering v. Stafford, 3 Ves. Prec. Ch. 385; Burke v. Jones, 2 V. Jr. 584; Jones v. Tuberville, 4 Bro. & B. 275. C. C. 115. 57. Williamson v. Naylor, 2 Y. & C. 208, 310, note. Trusts and Teustees. 967 statute of a State makes both the real and personal estate assets in the hands of an executor or administrator for the payment of the debts of the testator, and such a devise will suspend the operation of the statute as to all debts not barred at the time of the testator's decease.^* As we have already seen, in order to create an express trust, there must be an estate or interest vested in the trustee, therefore a mere power in gross to sell the realty, conferred upon the executor by the terms of the will, does not constitute him a trustee, even though it is for the purpose of pay- ing the testator's debts.^' But an executor under such a provision in the will may by his conduct, which operates to put creditors and claimants off their guard relative to the collection of their claims, suspend the operation of the statute thereon. The fact that a testator in his will directs that all his just debts shall be paid, does not create a trust for the payment of his debts which will prevent the statute of limitations from applying to a demand against the estate.^* But the rule is otherwise where the debts are scheduled, and the schedule is referred to and made a part of the will.®^ § 206. Executor or administrator of a trustee. The executor or administrator of a person who was trustee for 58. Burke v. Jones, 3 V. & B. 275; himself out to the devisees as en- Scott V. Jones, CI. & F. 282. But not gaged in winding up the estate, and such as are barred, but when clear discharging claims prior to theirs, it and explicit and not merely implied, was held that while he was doing it suspends the statute on debts this, or professing to do it, the stat- which are due at the death of the tea- ute of limitations could not run tator. Agnew v. Fetterman, 4 Pa. 56. against those who had no rights 59. Dickinson v. Teasdale, 14 De G. against him until those prior claims J. S. 52. Thus, where an executor were paid. Carroll v. Carroll, 11 to whom the testator had given full Barb. (N. Y.) 293. See Jacquet v. power to sell, dispose of, lease, or Jacquet, 27 Beav. 332. mortgage any or all of his real es- 60. Bloodgood v. Bruen, 4 Sandf. tate, for the payment of his debts and (N. Y.) 437; Parker v. Carter, 8 legacies, and for the distribution of Tex. 318. the balance among the devisees 61. Williamson v. Naylor, 2 Y. t named in the will, by his acts held O. 210, note. 968 Statutes of Limitation. another cannot set up the statute to defeat the claim of the cestui que trust for the settlement of the trust.®^ Trust property held by the decedent, which was kept separate from his own property, is not assets in the hands of his executory and if the trust funds were invested by the decedent in personal securities, and kept distinct from his own estate, and they pass into the hands of his executor with the express trust on their face, they are in equity, to all intents and purposes, the property of the cestui que trust, and equity will compel their specific delivery; but if, instead of subsisting in the hands of the executor, as executor, it has be- come a mere money transaction, although it originated in a trust, it assumes the character of a debt, and the cestui que trust becomes a creditor, and liable to be barred as such.** § 207. Power to sell property. A simple power conferred by one person upon another to sell property does not create an express trust which suspends the opera- tion of the statute as to the avails of the sale, because the legal estate still remains in the person conferring the authority;** but it has been held that a power of attorney given by A. to B., placing the whole property of A. at the disposal of B., with full authority to collect all claims and make sale of all property, real or personal, and out of the interest of the proceeds to pay for the maintenance of A., with a provision that B. shall account whenever desired, is a direct trust, which lapse of time or the statute of limitations will not bar.*^ So where it is the duty of a trustee to give a cestui que trust notice of the sale of trust property, the statute will not begin to run imtil such notice is given.** 62. Johnson v. Overman, 55 N. C. re Post's Esrtate, 64 N. Y. Supp. 359, (2 Jones Eq.) 182. 374, 30 Misc. Kep. 551. See supra, % 199, note. When trust 63. Treco<>hick v. Austin, 4 Mason duties are imposed on an executor, (U. S. C. C.) 16. and final administration by payment 64. Dickinson v. Teasdale, supra. to legatees is deferred, the right to a 65. Cook v. Williams, 2 N. J. Eq. final accounting accrues only at the 209. time fixed for final distribution. In, 66. Fox v. Cash, 11 Pa. 207. Teusts and Teustees. 969 § 208. Effect on cestui que trust when trustee is barred — Sale of trust estate. When the legal title of property is vested in a trustee who can sue for it, and fails to do so within the statutory period, an infant cestui who has only an equitable interest will also be barred;®^ but the rule is otherwise when the legal title is vested in the infant, or east upon him by operation of law.^^ The rule only applies in cases where the trustee might have brought an action, but neglected to do so. If he has estopped himself from suing by a sale of the property, thus uniting with the purchaser in a breach of his trust, the wrong is to the beneficiaries, not to him, and, while he cannot sue, the beneficiaries, if under any dis- ability, are not affected by the statute. ^^ And if the cestui que trust 67. Wingfield v. Virgin, 51 Ga. 139; Brady v. Walters, 55 id. 25; Molton V. Henderson, 63 Ala. 426; Williams v. Otey, 27 Tenn. (8 Humph.) 563; Woodbridge v. Plant- ers' Bank, 33 Tenn. (1 Sneed) 297; Pendergrast v. Foley, 8 Ga. 1; Goss V. Singleton, 39 Tenn. (2 Head) 67. In Willson v. Louisville Trust Co., 102 Ky. 522, 44 S. W. 12, 19 Ky. Law Eep. 1590, this rule was held also to apply in the case of a constructive trustee who became so by buying trust property from the actual trus- tee, knowing that the latter was com- mitting a breach of trust. See 12 Harvard L. Eev. 132. 68. Wingfield v. Virgin, supra. 69. Parker v. Hall, 39 Tenn. (2 Head) 641; Evertson v. Tappen, 5 Johns. (N. Y.) Ch. 497; Fish v. Wil- son, 15 Tex. 430; Jones v. Goodwin, 10 Rich. (S. C.) Eq. 226. Where trustees, by authority of an act of assembly, sold and conveyed land, re- serving in the deed a ground rent, to be paid to the proprietor of the land, when he should be ascertained, and the proprietor of the land afterwards filed a bill against the purchaser to recover the ground rents, the statute of limitations was held to be no bar to the recovery. Mulliday v. Machir, 4 Gratt. (Va.) 1. Where a sale of infants' property was made by a master, under a decree by which he was directed to sell, and apply the interest, and as much as might be necessary of the principal, of the proceeds, to the support of the infants, it was held that he was a trustee, and that the statute did not run against a suit, by the infants, for an account, until he had denied his liability. Houseal v. Gibbes, Bailey (S. 0.) Ch. 482. A person giving to his children, by deed, property, real and personal, to be enjoyed by them after his death, himself retaining a life estate, is a trustee for the children, and cannot set up the statute of limitations against them in consequence of his possession. Dawson v. Dawson, Rice (S. C.) Ch. 243. A purchase at a sheriff's sale, ua- 970 Statutes of Limitation. ■was ignorant of the sale, and the purchaser knew of the trust, the cestui que trust will not be barred. If one having notice of the trust purchases of the husband and trustee a negro held in trust for the wife, he will not acquire a title under the statute of limi- tations by a continued possession of the negro for the statutory period, the wife being ignorant of the sale.™ The rule is that a person who purchases of a trustee the whole or part of the trust property, bona fide, and without notice or knowledge of the trust, will acquire a good title as against the cestui que trust f^ but a person who purchases trust property with notice of the trust holds the title as trustee, and stands in the place of his grantor, and is chargeable with the trust. ''^ § 209. Factors and agents. A common and very important fiduciary relation is that of an agent or factor to his principal. If a person acts as a general agent for another, and there is a current account, the rule is said to be that the statute does not begin to run until the expiration of the agency ;'^ but in Connecticut ''* a doctrine antagonistic to this was der an agreement to hold tlie prop- for the benefit of the principal, it was erty for the benefit of the debtor, oon- held that the statute did not run stitutes a technical trust not within against the principal's claim to the the statute of limitations. McDon- land. Hutchinson v. Hutchinson, 4 aid V. May, 1 Rich. (S. C.) Ch. 91. Desaus. (S. C.) 77. But the purchase of one's land at a, 70. Jones v. Goodwin, supra. sheriff's sale, with an agreement that 71. Wyse v. Dandridge, 35 Miss, he shall remain in possession and re- 673; Henderson v. Dodd, 1 Bkiley (S. fund the money at an indefinite per- C.) Eq. 138; Prevo v. Walters, 5 lU. iod, does not create a "continuing 35; Hudnal v. Wilder, 4 McCord (S. trust " to bar the statute. Hughes r. C.) 394; Christmas v. Mitchell, 38 Hughes, Cheves (S. C.) 33. If a N. C. (3 Ired. Eq.) 535; Bracken v. sheriff and a judgment creditor hold Miller, 4 W. & S. (Pa.) 103. money in trust to pay over to other 72. Stewart v. Chadwick, 8 Iowa, creditors who have appealed from 463; Pinson v. Ivey, 9 Tenn. (1 that judgment, they cannot avail Yerg.) 396; Jones v. Shattuek, 41 themselves of the bar of the statute. Ala. 363; Murray v. Ballou, 1 Johns. Gay v. Edwards, 30 Miss. 318. (N. Y.) Ch. 566; Webster v. French, Where an agent for the purchase 11 111. 354. of land took a title in his own name 73. Hopkins v. Hopkins, 4 Strobh. Trusts and Teustees. 971 adopted as to an agent for the collection of rents, the sale of lands, etc., and given full authority and control in that respect over the plaintiff's land, and the recovery in that case was restricted to such items as had accrued within six years next preceding the bring- ing of the action. It is held that, where the agency is special, the statute attaches upon the consummation of each transaction or the accrual of each item."^ Where an agent receives money for his principal, it is generally held that the statute does not attach until a demand has been made upon him therefor by the princi- pal.'® But this question depends largely upon the contract be- tween the agent and his principal relative to accounting. If a person is constituted an agent for the collection of rents, the sale ■of property, etc., and agrees to receive the money and account for the same, he is treated as agreeing to account immediately upon the receipt of the money and without demand;" but if money is deposited with him to be invested, and he agrees to account therefor on demand, a right of action does not accrue against him until a demand has been made upon him for an account, and consequently, whether the money has been loaned by him, or converted to his own use in violation of his trust, the statute does not attach until demand has been made.'^ As be- (S. C.) Eq. 207, 53 Am. Dec. 663. See up the statute of limitations to bar Parris v. Cobb, 5 Rich. (S. C. ) Eq. a suit by the latter for an account. 450; Estes v. Stokes, 2 id. 133. This Burdick v. Garrick, L. R. 5 Ch. 233; principle is well illustrated in a New In re Bell, 34 Ch. D. 462; Dooby v. York case, Davy v. Field', 1 Abb. (N. Watson, 39 Ch. D. 178. Y.) App. Dec. 490, in which it was 74. Appeal of Hart, 32 Conn. 520. held that, where a sheriff ooUeeta 75. Hopkins v. Hopkins, supra. money for several creditors upon sue- 76. Taylor v. Spearg, 8 Ark. 429; cesaive attachments against a single Hyman v. Gray, 49 N". C. (4 Jones debtor, the fund will be treated as en- L.) 155; Gardner v. Peyton, 5 Cranch tire, and the statute does not begin C. C. (U. S.) 560; Lever v. Lever, 1 to run against any creditor from the Hill (S. C.) Eq. 62; Merle v. An- time when his claim was collected, drews, 4 Tex. 200; Judah v. Dyott, 3 but from the time when the whole is Blackf. (Ind.) 324, 25 Am. Dec. 112. called. 77. Appeal of Hart, supra. An agent who stands in a fiduciary 78. Baker v. Joseph, 16 Cal. 173 ; relation to his principal cannot set s. P. Sadowaky v. M'Farland, 33 Ky. 972 Statutes of Limitation. tween a factor and consignor of goods, sent to the former to be sold, in the absence of any special contract relative to an ac- counting for the same, he is treated as contracting to account there- for on demand, consequently the statute does not run against the consignor until demand for an accounting is made by him,'^ or an account is rendered by the factor to the consignor, in which case the statute begins to run from the time of the rendition of the account,*" or directions from the consignor to remit the proceeds.*^ § 210. Partners. The statute does not run between partners so long as the part- nership continues, and each partner is in the exercise of his right, nor necessarily after its dissolution,- where there are debts due to or from it.*^ There is no definite rule of law that the statute begins to run immediately upon the dissolution of the partnership, and the question as to whether it does or not must depend upon the peculiar circumstances of each case.*^ But unless there is some covenant or agreement, express or implied, fixing a period for ac- counting beyond the time of dissolution, or circumstances that (3 Dana) 204. For a more extended 81. Ferris v. Paris, 10 Johns. (N. review of the rules and authorities Y.) 285; Burns v. Pillsbury, 17 N. bearing upon this question, see supra, 'EL. 66; HaJden v. Crafts, 4 E. D. Sm. Chap. XI. (N. Y.) 490, 2 Abb. Pr. 301; Cooley 79. Baird v. Walker, 12 Barb. (N. v. Betts, 24 Wend. (N. Y.) 203. Y.) 298; Topham v. Braddick, 1 82. McNair v. Ragaland, 16 N. C. Taunt. 571 ; Green v. Johnson, 3 Gill. ( 1 Dev. Eq. ) 533 ; Hammond v. Ham- & J. (Md.) 389; Collins v. Benning, mond, 20 Ga. 556. In Atwater v. 12 Mod. 444; Hyman v. Gray, 49 N. Fowler, 1 Edw. (N. Y.) Ch. 417, it C. (4 Jones L.) 155; Kane v. Cook, was held that where two persons are 8 Cal. 449. partners in certain stocks, which are 80. Murray v. Coster, 20 Johns. (N. left by one in the hands of the other Y.) 576, 11 Am. Dec. 333; Farmers' for sale, the statute does not begin to & Mechanics' Bank v. Planters' Bank, run until the stocks are finally dis- 10 Gill. & J. (Md.) 423; Clark v. posed of. Miller v. Millei-, L. R. 8 Moody, 17 Mass. 145. It is a factor's Eq. 499; Foster v. Hodgson, 19 Ves. duty to account in a reasonable time, 183; Millington v. Holland, W. E. without demand. Eaton v. Walton, Nov. 22, 1869; Robinson v. Alexan- 32 N. H. 352 ; Lyle v. Murray, 6 N. der, 2 CI. & F. 717. Y. Super. Ct. (4 Sandf.) 590. 83. Massey v. Tingle, 29 Mo. 437. Trusts and Teustees. 973 render an accounting impossible, the statute begins to run from the time when the partnership is in fact dissolved.** If at the date of dissolution there are debts due to or from the firm, the partnership liability continues until such matters are liquidated, or until they are barred by the statute; and, if one of the part- ners is appointed to liquidate the affairs of the firm, he may bind the late firm by a note given for money borrowed by him to pay the firm debts f^ and if no one of the partners is clothed with spec- ial authority to liquidate the affairs of the firm, any one of the partners may bind the others by notes given in satisfaction of a debt of the firm f^ but none of the partners have authority to bind the others by any promise to pay a debt of the firm which is barred by the statute f^ and except where provision is otherwise made by statute, one partner may bind another by a promise to pay a debt upon which the statute has not run.^* Upon the death of a partner, the firm is ipso facto dissolved, and the statute begins to run for and against his personal representatives at once.*' There is one serious difficulty in the application of this doctrine, and that is, where, after the lapse of six years, valuable partnership assets come into the hands of the surviving partner, in which the estate of the deceased partner ought to participate.^" 84. Taylor v. Morrison, 37 Ky. (7 tlie lapse of six years, whether the Dana) 341; Massey v. Tingle, supra; surviving partner be plaintiff or de- Hammond V. Hammond, supra. fendant, and that the punctum tem- 85. McOowin v. Cubbison, 73 Pa. poris from which time oommencea to 358 ; Davis's Estate, 5 Whart. Pa. run is the date at which the partner- 530; Robinson v. Taylor, 4 Pa. 343. ship estate is vested in the surviving 86. Ward v. Tyler, 53 Pa. 393. partner. See Lackey v. Lackey, Prec. 87. Bush V. Stowell, 71 Pa. 308; in Ch. 518. Lord Hatherley dissented Levy V. Cadet, 17 S. & K. (Pa.) 136; in Knox v. Gye. In Tatam v. Will- Reppert v. Colvin, 48 Pa. 348. iams, 3 Hare, 347, Wigram, V. C, 88. McCoon v. Galbraith, 39 Pa. said: " In this court there is direct 293. and very high authority for the prop- 89. Weisman v. Smith, 59 N. C. (6 osition that a court of equity will Jones Eq.) 134. In Knox v. Gye, L. not, after six years' acquiescence, R. 5 H. L. 674, it was held that a * * * decree an account between a court of equity will not. decree an ac- surviving partner and th« estate of a count between a surviving partner deceased partner." and a deceased partner's estate after 90. This difficulty was anticipated 974 Statutes of Limitation. Where partnership affairs are unsettled at the time the firm is dissolved, and by a written agreement one of the partners is designated to keep and dispose of the firm assets at such prices and upon such terms as he can, a continuing trust is thereby created, and the statute does not begin to run in favor of the in Knox v. Gye, by Lord Colonsay, who said: "I do not say that if a sum is unexpectedly recovered after the lapse of six years, the executor of the deceased partner, though he has lost the right to sue for an account of the partnership concerns, may not in another kind of suit demand a share of the particular fund so re- covered." And Lord Chelmsford said : " There may be a difficulty in determining what is the right of an executor of a deceased partner when he has allowed the statute of limita- tions to run against his claim to an account, and a debt has Jbeen received by the surviving partnei- after the six years has elapsed. But this is a diffi- culty occasioned by his own laches, and I see no reason why, if he thinks that his interest in the sum received has not been absorbed by its appli- cation to pay debts due from the partnership, he should not have a right to sue for his share in this sum (a very different thing from a suit for an account of all the partnership transactions), the surviving partner being at liberty to defend himself by alleging and proving that the whole sum received has been applied, or waa applicable, to the payment of partnership liabilities." It may be remarked, however, that according to the dictum of Lord Westbury, in the same case, the rep- resentative of a deceased partner has no specific interest in or claim upon any part of the partnership estate, so that it seems doubtful how far he would be able, as suggested by Lord Colonsay, to sue for the share of any newly acquired asset as prima facie due to him, and in that way, in fafit, obtain an account from the defendant by throwing the onus of proof (which would, in fact, require an account of the partnership transactions) upon the defendant, to show that the whole or part of such plaintiff's prima facie share was applicable to satisfy part- nership liabilities. So, too, it is dif- ficult to see how laches could be im- puted on the part of the representa- tives of a deceased partner, at all events in respect of unexpected assets which fall in after the lapse of six years, in respect that he has not kept alive his right to have an account by filing a bill, or even, as suggested by Lord Hatherley, by filing continuous bills at sexennial intervals. It was contended that a surviving ' partner was a trustee of the partnership as- sets, and as such not within the stat- ute; but this contention was over- ruled. Lord Westbury expressing i» clear opinion that there was no fidu- ciary relation between a surviving partner and the representatives of one deceased, and that the former was not a trustee in the strict and full sense of the term, the term being so used only by a convenient but decep- tive metaphor, and the rights of the parties being strictly legal rights. Teusts and Teustbes. 975 liquidating partner so long as he acts under the trust or admits its continuance.*^ § 211. Acknowledgment by one partner. As long as a partnership continues, each partner is an agent for the purpose of making an acknowledgment under the statute of limitations.^^ Under the old theory of acknowledgment, an acknowledgment made by a liquidating partner after a dissolution of partnership might revive a debt;^^ but under the new theory, and since the essential changes in these statutes both in this country and Eng- land, such agency will terminate at dissolution, and after a part- nership is dissolved one of the late firm cannot by his act or ad- mission involve his copartner in any new legal liability.^* It is possible, however, that it might be otherwise if the admission consisted of a part payment out of assets belonging to the late firm.'^ A right of action to sue for the settlement of partnership affairs does not, as a matter of law, accrue at the time of the dissolution of the firm, but depends on circumstances.^^ 91. Causler v. Wharton, 62 Ala. L. R. 461; Kilgour T. Finlyaon, 1 H. 358. BI. 155. 92. Watson v. Woodman, L. E. 20 See Kerper v. Wood, iO Ohio St. Eq. 730. 613, 29 N. E. 501, 15 L. R. A. 656, A part payment of a firm debt by and note, one partner, without his copartner's 95. Watson v. Woodman, L. R. 20 knowledge or authority, takes the Eq. ' 721. debt out of the statute of limitations. 96. When the right of action ac- Buxton V. Edwards, 134 Mass. 567; erues, so as to set the statute of limi- Harding v. Butler, 156 Mass. 84, 30 tations in motion, depends upon cir- N. E. 168. See Tucker v. Tucker eumstances, and cannot be held as (1894), 3 Ch. 429. matter of law to arise at the date 93. Wood V. Braddick, 1 Taunt, of the dissolution, or to be carried 104; Pritchard v. Draper, 1 R. & My. back by relation to that date. Todd 191- V. Rafferty, 30 N. J. Eq. 254; Part- 94. Watson v. Woodman, L. R. 20 ridge v. Wells, id. 176; Prentice v. Eq. 721; Thompson v. Waithman, 3 Elliott, 72 Ga. 154; Hammond v. Drew 628; Bristow v. Miller, 11 Ir. Hammond, 20 Ga. 556; Massey v. 976 Statutes of Limitation. When the partnership affairs are being wound up without antag- onism between the parties, and assets are being realized and debts paid, the statute does not begin to run. Where the dissolution is effected by the debt or assignment of one partner, the surviving or solvent partners hold the partnership property for the pur- pose of closing up its affairs. And where there is an agreement that one partner shall close up the business of the firm and settle its affairs, which have been under his management, a trust has been created and the statute does not begin to run against the right to account, so long as such partner acts under the trust until he repudiates it himself.^'' If a partner dies during the partnership, it seems that the maxim contra non volentem agere non currit lex prevails, and that time will not run against his estate, and in favor of the surviving Tingle, 39 Mo. 437; MoClung v. Cape- hart, 24 Minn. 17; Hendy v. March, 75 Oal. 566; Foster v. Rison, 17 Gratt. 331; Boggs v. Johnson, 26 W. Va. 831; Atwater v. Fowler, 1 Edw. Ch. 433, 6 N. Y. Oh. (L. ed.) 195. In Oausler v. Wharton, 63 Ala. 358, the court held 'that where one part- ner, by a written agreement with the other, left the partnership assets •with him to dispose of, whenever he could do so at a fair price, a con- tinuing trust was thereby created, and the bar of the statute of limita- tions would not begin to run against the right to an account of the part- nership dealings, so long as the party to whom the assets were de- livered acted under the trust or ad- mitted that it was still continuing. In Adams v. Taylor, 14 Ark. 62, it was held that " the relation between co-partners does not create such a trust as will exempt a bill for a mere account and settlement from the operation of the statute of limita- tions, or the analogous bar by lapse of time, or staleness of the demand." McGuire v. Ramsey, 9 Ark. 519. See Chouteau v. Barlow, 110 U. S. 338, 3 Sup. Ct. 620, 28 L. Ed. 133. Suits between partners to obtain an account and settlement of the partnership affairs are subject to the statute of limitations, which begins to run at the date of the dissolution, in tlje absence of any express con- tract. Or of conduct of the parties working an extension of the time for bringing suit. Currier v. Studley, 159 Mass. 17, 33 N. E. 709; Noyes v. Crawley, 10 Ch. D. 31, 39; Allen & Sons v. Woonsocket Co., 11 R. I. 288, 295; Richardson v. Gregory, 136 111. 166, 18 N. E. 777; Campbell v. Clark, 101 Fed. 972; Gray v. Kerr, 46 Ohio St. 653, 23 N. E. 136; Gilmore v. Ham, 142 N. Y. 1, 36 N. E. 836, 40 Am. St. Rep. 554; supra, % 24. 97. Riddle v. Whitehill, 135 U. S. 631, 10 Sup. Ot. 924, 34 L. Ed. 283. Trusts and Trustees. 977 partner, till there is administration to the estate of the dead part- ner, unless there have been disputes so as to give a cause of action before the death of the dead partner.'^ § 212. How trustee may put statute in operation in his favor. It is, as previously stated, a well-established rule in regard to direct, technical trusts, that, so long as the trust subsists, the rights of the cestui que trust will not be barred by the possession of the trustee, however long continued, as the possession of the trustee is treated as the possession of the cestui que trust, and although he does not execute his trust, his mere possession and inactivity as to the trust, of themselves, afford no indicia of an adverse claim by him.'^ But if the trustee denies the trust, and assumes absolute ownership of the trust property in such a man- ner that the cestui que trust has actual or constructive notice of the repudiation of the trust by the trustee, the statute attaches and begins to run from that time against the cestui que trusty 98. Spann v. Fox, 1 Ga. Dec. 1; Gardner v. Oummings, 1 Ga. Dee. Part I.; Banning on Xiimitations, 204-208. 99. Redwood v. Eiddick, 4 Munf. (Va.) 223; Howard v. Aiken, 3 Mc- Cord (S. 0.) 467; North v. Barnum, 12 Vt. 205; Overstreet v. Bates, 24 Ky. (1 J. J. Marsh.) 370; Thomp- son v. Blair, 7 N. C. (3 Murph.) 583; Wamiburzee v. Kennedy, 4 Desau. (S. C.) Eq. 474; Armstrong v. Camp- hell, 11 Tenn. (3 Yerg.) SOI; Martin V. Jackson, 27 Pa. 504; Jones v. Per- sons, 9 N. C. (2 Hawks) 369; Good- hue V. Barnwell, 1 Rice (S. C.) Eq. 198; Bowman v. Wathen, 3 McLean (U. S. 0. C.) 376; Alexander v. M'Murry, 8 Watts (Pa.) 504; Hoven- den V. Annesley, 3 Sch. & Lef. 633; Hemenway v. Gates, 23 Mass. (5 Pick.) 331; Steel v. Henry, 9 Watts 62 (Pa.) 533; Fishwick v. Sewell, 4 H. & J. (Md.) 393; Lawson v. Blodgett, 20 Ark. 195; Young v. Mackall, 3 Md. Ch. 395; McDonald v. Sims, 3 Ga.' 383. 1. When the trustee openly dis- avows his trust, the statute begins to run. Thomas v. Merry, 113 Ind.' 83; Reynolds v. Sumner, 126 111. 58; Ward V. Harvey, 111 Ind. 471; Reiz- enstein v. Marquardt, 75 Iowa 294; Gilbert v. Sleeper, 71 Gal. 290; Roach V. Caraffa, 85 Cal. 436; Hill V. McDonald, 58 Hun (N. Y.) 322; Hamilton v. Pritcbai'd, 107 N. 0. 138; Marshall's Est. 138 Pa. 385; State V. Shires, 39 Mo. App. 560; Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. 3, 27 L. Ed. 69; Ord v. De La Guerre, 54 Cal. 398; Governor v. Woodworth, 63 111. 254; Hayward v. Gunn, 82 111. 385; Grant v. Burr, 54 978 Statutes of Limitation. •unless the latter is at the time under some one of the statutory- disabilities, or is under undue influence proceeding from the trustee.^ Such denial of the trust, and assertion of an adversary claim in himself, is an abandonment of the fiduciary character Cal. 298; Belknap v. Gleason, 11 Conn. 160; Hickox v. Elliott, 23 Fed. 13; Hartley v. Head, 71 Ga. 95; Re MeKinley, 15 Fed. 913; McGuire v. Llnneus, 74 Me. 344; Robertson v. Dunn, 87 N. C. 191; Hastie v. Aiken, 67 Ala. 313; Bonner v. Young, 68 Ala. 35; Zuek v. Gulp, 59 Cal. 142; Lakin v. Sierra Buttes Gold Mine Co., 25 Fed. 337; Bostwick v. Dick- son, 65 Wis. 593; Fox v. Tay, 89 Cal. 339; Smith v. Glover, 44 Minn. 260; Butler v. Hyland, 89 Cal. 575; Byars v. Thompson, 80 Tex. 468; Hill V. McDonald, 58 Hun (N. Y.) 323; Hinton v. Pritohard, 107 N. C. 128; Wilson v. Brookshire, 126 Ind. 497; Conger v. Lee, 75 Tex. 114; Wren v. HoUowell, 52 Ark. 76; Dyer V. Waters, 19 Atl. (N. J. Eq.) 139; Re Camp, 50 Hun (N. Y.) 388; Mur- phy V. Murphy, 80 Iowa 740; Hall v. Ditto, 11 Ky. Law Rep. 667 ; Char- ter Oak L. Ins. Co. v. Gisborne, 5 Utah 319; Chadwiek v. Chadwick, 59 M'ich. 87; Robson v. Jones, 27 Ga. 266. Where an act is done by the trustee purporting to be an execution of the trust, he is from that time re- garded as standing at arm's length from the cestui que trust, who is then put to the assertion of his claim at the hazard of being barred by the statute. Thus, where an infant ex- ecuted a receipt as a discharge in full of a legacy to which he was entitled in right of his wife, and four years after filed a bill against the execu- tors for the recovery of her legacy. it was held that he was barred. Coleman v. Davis, 3 Strobh. (S. C.) Eq. 334; Moore v. Porcher, 1 Bailey (S. C.) Ch. 195; Britton v. Lewis, 8 Rich. (S. C.) Eq. 271; Gisborne v. Charter Oak L. Ins. Co., 143 U. S. 336, 12 Sup. Ct. 377, 35 L. Ed. 1029; Miles V. Thome, 38 Cal. 335; Sey- mour V. Freer, 75 U. S. (8 Wall.) 202, 19 L. Ed. 306; Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. 3, 27 L. Ed. 69; Henry v. Confidence Gold and Silver M. Co., 1 Nev. 619. In Lam- mer v. Stoddard, 103 N. Y. 673, 9 N. E. 328, the court said: "Edward Lammer was not the actual trustee of this fund, and he never acknowl- edged a trust as to the money loaned him. He could, at most, have been declared a trustee eai maleficio, or by implication or Construction of law, and in such a case the statute begins to run from the time the wrong was committed, by which the party be- came chargeable as trustee by impli- cation." Wilmerding v. Russ, 33 Conn. 67; Ashurst's Appeal, 60 Pa. 290; McClane v. Shepherd, 21 N. J. Eq. 76 ; Decouche v. Savetier, 3 Johns. Ch. 190, 216; Kane v. Bloodgood, 7 id. 90; Ward v. Smith, 3 Sandf. Ch. 592; Higgins v. Higgins, 14 Abb. N. C. 13; Clarke' V. Boorman, 75 U. S. (18 Wall.) 493, 21 L. Ed. 904; Perry on Trusts, § 865. 2. Keaton v, McGwier, 24 Ga. 217; Wheeler v. Piper, 56 N. C. (3 Jones Eq.) 249; Welborn v. Rogers, 24 Ga. 558. Teusts ahd Teustees. 9Y9 in which he has stood to the property, and from that time the claim of the cestui que trust is subject to the operation of the statute.^ But in order to put the statute in motion, it must ap- pear that the cestui que trust had, or ought to have had, knowledge of the trustee's denial, repudiation, or adverse claim, and that the trustee has been guilty of no fraud in that regard.* § 213 Exceptions to the rule relative to express trusts. The rule that a direct and technical trust is not within the operation of the statute is subject to two exceptions: first, that no open denial or repudiation of the trust is brought home to the knowledge of the cestui que tru^t, which requires him to act as upon an asserted adverse title; and, second, that no circumstances 3. Murdock v. Hughes, 15 Miss. 219; Kane ' v. Bloodgood, supra; Smitli V. Bicords, 53 Mo. 581; Far- nam v. Brooks, 26 Mass. (9 Pick.) 212; White v. Leavitt, 30 Tex. 703; Andrews v. Smithwick, 20 id. Ill; Lucas V. Daniels, 34 Ala. 188; Boone \. Ohiles, 35 U. S. (10 Pet.) 177, 9 L. Ed. 388; Pipher v. Lodge, 4 S. & E. (Pa.) 310; Eobson v. Jones, 37 366; Willison v. Watkins, 38 U. S. (3 Pet.) 52, 7 L. Ed. 596; Cunning- ham V. McKindley, 22 Ind. 149; Green v. Johnson, 3 G. & J. (Md.) 89; Starke v. Starke, 3 Kieh. (S. 0.) 438; Sollee v. Croft, 7 Rich. Ec(. (S. C.) 34; Perkins v. Cartmell, 4 Harr. (Del.) 270; Sheldon v. Sheldon, 3 Wis. 699; Tinnen v. Mebane, 10 Tex. 246. 4. Keaton v. Greenwood, 8 6a. 97; Pox V. Cash, 11 Pa. 207; Roberts v. Berdell, 61 Barb. (N. Y.) 37, 52 N. Y. 531; Moffatt v. Buchanan, 30 Tenn. (11 Humph.) 369.; Grumbles V. Grumbles, 17 Tex. 473; Houseal v. Gibbs, Bailey (S. 0.) Eq. 482; Rob- inson V. Hook, 4 Mason (U. S.) 153. When the trust is repudiated by clear and unequivocal words and acts of the trustee, who claims to hold the trust property as his own, and such repudiation and claim are brought to the notice of the beneficiary in such a manner that he is called upon to assert his equitable rights, the stat- ute of limitations will begin to run from the time such repudiation and claim came to the knowledge of the beneficiary. Turner v. Smith, 11 Tex. 630; Williams v. First Presby- terian Society, 1 Ohio St. 478; Oliver V. Piatt, 44 U. S. (3 How.) 333, 11 L. Ed. 633; Badger v. Badger, 69 U. S. (2 Wall.) 87, 17 L. Ed. 863; Pro- vost V. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 311; Merriam v. Has- sam, 96 Mass. (14 Allen) 516; Atty.- Gen. V. Federal St. Meeting-House, 69 Mass. (3 Gray) 1; Kane v. Blood- good, 7 Johns. Ch. (N. Y.) 90; Wed- derburn v. Wedderburn, 4 Myl. & Cr. 41; Bright v. Legerton, 2 De G. F. & J. 606. 980 Statutes of Limitation. exist to raise a presumption from lapse of time that the trust has been extinguished.^ There is, as we have seen in a former chap- ter,^ a defence peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limita- tions applies to it. In such cases, courts of equity often act upon their own inherent doctrine of discouraging antiquated claims, for the peace of society, by refusing to interfere where there has been gross laches in prosecuting the right, or acquiescence in the assertion of an adverse right.' 5. Story, J., in Baker v. Whiting, 3 Sumner (U. S.) 466; Bdmanda T. University, 21 N. C. (1 D. & B. Eq.) 325. It is true, as a general rule, that when the relation of trustee and cestui que trust is uniformly ad- mitted to exist, and there is no as- sertion of adverse claim or owner- ship by the trustee, lapse of time can constitute no bar to relief. But when the trust relation is repudia- ted, and time and long acquiescence have obscured the nature and char- acter of the trust, or the acts of the parties or other circumstances give rise to presumptions unfavorable to its continuance, in all such cases a court of equity will refuse relief on the gound of lapse of time, and its in- ability to do complete justice. Net- tles V. Nettles, 57 Ala. 539; Philippi V. Philippi, 61 Ala. 41; Lansdale v. Smith, 106 U. S. 391, 1 Sup. Ct. 350, 27 L. Ed. 319; Goodwyn v. Baldwin, 59 Ala. 127; Maury v. Mason, 8 Port. (Ala.) 211; Philippi v. Philippi, 115 U. S. 157, 5 Sup. Ct. 1181, 29 L. Ed. 336. If twenty years are allowed to elapse from the time from which pro- ceedings could have been instituted for the settlement of a trust without the commencement of such proceed- ings, and tliere has been no recogni- tion or admission within that period of the trust as continuing and undis- charged, a presumption of settlement arises which operates as a positive bar. MeCarty v. McOarty, 74 Ala. 546; Greenlees v. Greenlees, 62 id. 330; Harrison v. Heflin, 54 id. 552; Rhodes v. Turner, 21 id. 210; Black- well V. Blackwell, 33 id. 57; Worley V. High, 40 id. 171; Eagland v. Mor- ton, 41 id. 344; and this may be said to be the settled law of equity juris- prudence. Cholmondeley v. Clinton, a Jac. & Walk. 1,138. Hovenden v. Annesley, 2 Sch. & Lef. 607; Elmen- dorf V. Taylor, 23 U. S. (10 Wheat.) 152, 6 L. Ed. 289; Wagner V. Baird, 48 U. S. (7 How.) 333, 12 L. Ed. 681; Bowman v. Wathen, 42 U. S. (1 How.) 189, 11 L. Ed. 97; Kane V. Bloodgood, 7 Johns. Ch. (N. Y.) 90. 6. " Equitable actions," Chap. VI. 7. Wagner v. Baird, supra; Ken- nedy V. Bank of Georgia, 49 U. S. (8 How.) 586, 12 L. Ed. 1209; Stearns v. Page, 48 U. S. (7 How.) 819, 12 L. Ed. 928; Piatt v. Vattier, 34 U. S. (9 Pet.) 405, 9 L. Ed. 173; Fenson v. Sanger, 5 N. Y. Leg. Obs. 43. "A court of equity," says Lord Camden, " which is never active in Tktjsts and Trustees. 981 § 214. Stale trusts not favored in equity. Courts of equity do not apply the statute to matters peculiarly and exclusively within their own jurisdiction, and for this reason no lapse of time will preclude a court of equity from investigating transactions and accounts between parties standing in the relative situation of trustee and cestui que trust, where the transactions between them are not closed, and the delay of the claim is at- tributable to the trustee not having given that information to his cestui que trust to which he was entitled, and accounted with him in such manner as he ought to have done,* or where the circum- relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights. Nothing can call forth this court into activity but good conscience, good faith, and reasona,ble diligence. Where these are wanting, the court is passive and does nothing. Laches and neglect are always discounten- anced, and therefore from the begin- ning of this jurisdiction there was always a limitation to suits. But as the court has no legislative authority, it could not properly define the time of bar by positive rule; it was gov- erned by circumstances. But as often as Parliament had limited the time of action and remedies to a cer- tain period in legal proceedings, the Oourt of Chancery adopted that rule, and applied it to similar cases in equity; for when the legislature had fixed the time at law, it would have been preposterous for equity, which by its own proper authority always maintained a limitation to counten- ance laches beyond the period that the law haa been confined to by Par- liament, and therefore in all cases where the l^al right has been barred by Parliament, the equitable right to the same thing has been con- cluded by the same bar." Smith v. Clay, 3 Bro. C. C. 640, note. In Mel- lish's Estate, 1 Pars. (Pa.) 482, the oourt refused to compel a trustee to account after an unexplained delay oi thirty years. 8. Wedderburn v. Wedderburn, 3 Keen 749; Sheldon v. Weldman, 1 Oh. Cas. 26; Phillipo v. Munnings, 2 Myl. & Cr. 315; Hollis'a Case, 3 Vent. 345; Smith v. Pocock, 23 L. J. Ch. 596. Ignorance of one's rights, at law, does not prevent the operation r»f thp statute of limita- tions. Campbell v. Long, 20 Iowa 382; Bossard v. White, 9 Eich. (S. C.) Eq. 483; Martin v. Bank, 31 Ala. 115; Davis V. Cotton, 55 N. C. (3 Jones Eq.) 430; Abell v. Harris, 11 G. & J. (Md.) 367. This is so even though the action is founded on a breach of trust. Cole v. McGlathry, 9 Me. 131. But in equity it would operate as an excuse for delay, es- pecially if the trustee had failed to inform the cestui que trust of the facts. Pugh V. Bell, 24 Ky. (1 J. J. Marsh.) 399; Halsey v. Tate, 52 Pa. 311. 582 Statutes of Limitation. stances are such as to operate as a reasonable excuse for the delay ;' and where fraud is imputed and proved, the length of time during which the fraud has been concealed and practiced is rather an ag- gravation of the offence than a circumstance to execute delay.'"' In a Pennsylvania case/^ where after a delay of seventy years, upon a bill brought for an accounting for certain stocks which had been sold in trust for a person who was then dead, who knew the facts, but never set up any claim .under the trust, the court refused to interfere.-'^ Equity will decline to interfere to relieve against a trustee after a long lapse of time and the character of the trust has become obscure, or the acts of the parties or other circumstances raise a presumption against it.^^ So, also, equity will refuse to in- terfere where there has been a clear breach of trust, and the cestui que trust has for a long time acquiesced in the misconduct of the trustee, with full knowledge of the breach." § 215. Constructive or resulting trusts. The rule relative to express trusts has no application to that 9. Prevost v. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 311. 10. Bank of the United States v. Beverley, 42 U. S. (1 How.) 134, 11 L. Ed. 75; Miehoud v. Girod, 45 U. S. (4 How.) 503, 11 L. Ed. 1076. 11. Halsey v. Tate, 52 Pa. 311. 12. See Robertson v. Maclin, 6 Tenn. (3 Hayw.) 76, where great de- lay in seeking relief under a trust was held to have great weight against the application. Lapse of time with- out any claim or admission of an ex- isting trust, coupled with circum- stances tending to show that the trust has been executed, raises a pre- sumption of its execution, and, in the •case of a guardian, may authorize the court to require a less specific statement of the items of the account, and raise a presumption of payment to and for the ward to the amount. Gregg V. Gregg, 15 N. H. 190. Lapse of time does not operate as a bar of express trusts, especially where the trustee and those claiming under him have not asserted an adverse claim for .more than two years, and the rights of the cestui que trust will not be barred though he has neglected to claim the benefit of the trust for nearly forty years before. rporation, were the trustees of an express trust, and the statute f limitations does not run in their favor against the creditors of 95. In re Passmore's Estate, 104 96. Barnett v. Houston, 18 Tex. 1. 633, 45 Atl. 417. Civ. App. 134, 44 S. W. 689. Where a testator directed tLat all 97. Pollard v. Allen, (Tex. Civ. s debts be paid as soon after his App.) 171 S. W. 530. icease as possible, and that all his A mere admission in the nature of •operty be sold, and converted into an estoppel, of the receipt of money oney, and granted his executors five for the benefit of another, while suf- iSLTs in which to make sale of his ficient to establish liability, does not estate as aforesaid," there was no establish a continuing trust, or press trust to sell for payment of transform a former constructive trust ibts, and hence such provision in into a continuing one, so as to post- e will did not prevent limitations pone the running of limitations until om running against testator's knowledge of repudiation by the bts during such five years. Hemp- trustee is brought home to the cestui 11 V. Pry, 183 Pa. 593, 41 W. N. C. que trust, unless that admission is 7, 38 Atl. 1020. kept alive by others of like charac- Even if such provision created an ter, or by conduct recognizing a duty press trust to sell for payment of to perform the obligation assumed, bts, it did not affect the operation Bridgens v. West, 35 Tex. Civ. App. the statute, where the power to 277, 80 S. W. 417. 1 was not exercised within the five ars limited by the will. Id. 1004 Statutes of Limitation. the corporation.'* Other instances where parties have been held by the courts either to be or not to be trustees of an express or continuing trust may be found in the cases cited in the note below.'* § 220a (6). Resulting or implied trust. A suit against a trustee for a breach of implied duties, and which is not brought to recover property or funds in his hands, is subject to the bar of limitations.-^ When a trust is imposed by law, as in the case of a resulting trust, the statute of limitations begins to run in favor of the holder of the legal title against the equitable owner at the time of the conveyance, if there is no recognition of the rights of the cestui que trust; but, if the latter 's rights are 98. Boyd v. Mutual Fire Ass'n, 116 Wis. 155, 90 N. W. 1086, 61 L. R. A. 918, 96 Am. St. Rep. 948, modified on rehearing 94 N. W. 171, 98 Am. St. Rep. 948, under Rev. St. Wis. 1898, § 2081, subd. 5. But they ar« not trustees of a technical and continuing trust, cog- nizable only in equity, so as to be precluded from pleading limitations when sued by a receiver for acts of malfeasance and misfeasance for which they were amenable to an ac- tion at law at any time, either by the corporation or its stockholders, or, on insolvency, its creditors, the stat- ute (section 4206) making no ex- ception as against trustees of any kind. Id. 99. Cal. — Nichols v. Board of Po- lice Pension Fund Com'rs of City and County of San Francisco, 1 Cal. App. 494, 82 Pac. 557. Ga. — McCray v. Harrison, 136 Ga. 404, 71 S. E. 789, where an executor was appointed in January, 1900, and in a suit against him a decree was rendered in October, 1901, adjudging that one of the legatees was entitled to one-fifth of the proceeds of certain land, the executor did not, after such decree, sustain a fiduciary relation to the legatee, and the rule as to the limitation of action in cases of sub- sisting trusts is not applicable. loioa. — Smith v. Smith, 132 Iowa 700, 109 N. W. 194, where a husband purchased land with his wife's money, taking title in his name, limi- (tations did not run against the tru.it until repudiation of it by the trus- tee. y. r.—In re Smith's Estate, 66 Aipp. Div. 340, 72 N. Y. Supp. 1062, order aff'd 179 N. Y. 563, 71 N. E. 1140. Ohio. — Irwin v. Lloyd, 20 Ohio Cir. Ct. R. 339, 110 C. D. 212. Teao. — Laguerenne v. Farrar, 25 Tex. Civ. App. 404, 61 S. W. 953; Vernor v. D. Sullivan & Co., (Tex. Civ. App.) 126 S. W. 641. Wis. — Gibson v. Gibson, 108 Wis. 103, 84 N. W. 23; Merton v. O'Brien, 117 Wis. 437, 94 N. W. 340. 1. Frishmuth v. Farmers' Loan & Trust Co., 95 Fed. 5. Trusts and Teustees. 1005 recognized, the statute begins to rim from the time when the holder of the legal title asserts an adverse right.^ The statute of limita- tions will not begin to run against the enforcement of a resulting trust until the beneficiary learns of the existence of the trust* The statute of limitations begins to run against an action to establish or enforce a trust on the discovery of the facts constituting the trust.* In implied trusts, the statute of limitations begins to run as soon as the facts are brought to the knowledge of the cestui que trustj so that he can take steps to enforce the trust.^ Limitations do not commence to run in favor of trustees of a savings bank for their wrongful acts until discovery of the wrong.^ Limitations run against actions to enforce an implied trust to pay money on de- mand." Limitations run between a trustee and the cestui que trust in an implied trust.^ Limitations begin to rim against an implied trust from the time the wrong was committed by which the person becomes chargeable as trustee by implication.* Where a testator bequeathed a portion of his property, which was in the form of 2. Haney v. Legg, 129 Ala. 619, 30 A purchaser from a trustee with So. 34, S7 Am. St. Rep. 81. And see knowledge of the trust held to be a Brackin v. Xewman, 121 Ala. 311, 26 trustee ex maleficio in whose favor So. 3. limitations did not run as against 3. Cliff V. Cliff, 23 Colo. App. 183, the cestui que trust, and hence upon 12S Pac. 860. her death the remainder-men could The statute of limitations operates recover possession from those claim- as a bar of the right of the cestui ing under such purchaser. Case v. que trust to maintain an action to Goodman, 250 Mo. 112, 156 S. W. enforce aa ordinars- trust imposed by 698. law. Parks v. Satterthwaite, 132 6. Greenfield Savings Bank v. Ab- Ind. 411, 32 N. E. 82. ercrombie, 211 JIass. 253, 97 X. E. 4. Shelby County v. Bragg, 135 Mo. 897. 291, 36 S. W. 600; Smith v. Ricords, 7. Dunn v. Dunn, 137 N. C, 533, 50 52 Mo. 581; Ricords t. Watkins, 56 S. E. 212. Mo. 553. 8. Redford v. Clarke, 4 Va. Sup, 5. Freeland t. Williamson, 220 Mo. Ct. Rep. 36, 100 Va. 115, 40 S. E. 217, 119 S. W. 560; Smith v. Ricords, 630. supraj Ricords v. Watkins, supra. 9. Beecher v. Foster, 51 W. Va. 605, See also Hudson v. CaJioon, 193 Mo. 43 S, E. 647, 547, 91 S, W. 72; Prewitt v. Prewitt, 188 Mo. 675, 87 S. W, 1000, 1006 Statutes of Limitatioit. money, to his sister, but gave a small legacy to his brother and father; a few days thereafter he had the money drawn from the bank and given to him, and he then gave it to his sister and told her to keep it all, limitations in favor of the sister commenced to run against an action by the public administrator to enforce a trust on such money at the time when she received it.^° § 220a (7). What constitutes resulting or implied trust. The directors of a national bank are not trustees of an express trust, with respect to the property or funds of the bank, but of an implied or resulting trust created by the operation of the law upon their official relation to the bank; and the statute of limita- tions and the doctrine of laches may be invoked in their defense, when sued for a breach of such trust.^ Where there is no express trust created in personal property, and no subsequent declaration of trust, the purchase of real estate with the personalty does not create an express resulting trust which will prevent the running of limitations until the trust is repudiated.-^^ If plaintiff's share of the money collected by defendants, her coheirs, on a judgment obtained by them was a trust fund, the trust was an implied one to which the exception of the statute of limitations does not apply.^* Where a wife is before death the owner of a homestead which de- 10. Barker v. Hurley, 132 Cal. 21, Fleishman v. Woods, 135 Cal. 256, 63 Pac. 1071. 67 Pac. 376. 11. Cooper V. Hill, 94 Fed. 582, Where defendants furnished money 36 C. C. A. 402. to enable plaintiff's husband to 12. Barker v. Hurley, 132 Cal. 21, buy land, taking title in their own 63 Pac. 1071. name, and he afterwards paid them Where a vendee of land, in posses- the amount advanced, they held as Bion thereo'f, has performed his part trustees, and limitations did not run of tiie contract of sale, the statute of against the right to compel them to limitations will not commence to run execute a conveyance of the land until against his right of action for spe- demand made therefor. White v. ciftc performance of the contract as Costigan, 138 Cal. 564, 72 Pac. 178. lojig as he remains in possession of 13. Clarke v. Seay, 21 Ky. Law the land; the vendor, during suoh Rep. 394, 51 S. W. 589. period, being the equitable trustee of Whenever a trustee or other per- the legal title for the vendee. son in a fiduciary capacity, acting Trusts and Teustees. 1007 scended to her children, and the father after her death, collects the rents of the homestead, the father was not a trustee of the children in collecting the rent so as to suspend limitations." The fraud or jollucion of the purchaser at the sale under a deed of trust of prop- iitj of a corporation with the president of the corporation in pre- renting a redemption by the corporation does not raise a trust in favor of the corporation; but the stockholders must redeem, on refusal of the corporation, within two years of the sale, or within 1 year after knowledge of the fraud.^^ Where a husband fraudu- lently appropriated property belonging to his wife, an implied, and not a direct, trust arises, to which the statute of limitations ipplies.^^ Where a trust is created by the purchase of land with the oaoney of one person and its conveyance to another, it is created by implication of law, and the statute of limitations may begin to run before the trust is broken.^'' Where the owner of a mortgage purchases the land at mortgage sale, and agrees with the person liable on the bond that, if the mortgage sale is not set aside, he will sell the land at private sale, accounting to such person for any sur- plus over the amount of the debt, it is a promise to hold title to land for the benefit of another, which cannot be enforced after five ^ears, unless in writing, under the Pennsylvania statute.'^ Where ipparently within the scope of his Breach of promise, made by one powers, purchases property with buying notes secured by deed of trust trus't funds and takes title thereto in on the property of a corporation to his own name without any declara- the stockholder thereof of whom he tion of trust, a trust arises in favor bought them, that he would defer for of the beneficiary which belongs to a year exercise of the power of sale that class of trusts known as con- under the deed, does not render the itructive trusts, and as to such trusts sale void, so as to make him, on pur- limitation applies. Rogers v. Reid, chasing at the sale, a trustee for the 14 Ky. Law Rep. (abstract) 811. corporation, so as to suspend run- 14. Carroll v. Carroll, 93 Ark. 625, ning of limitations against a suit to 131 S. W. 947, limitations do not af- redeem. Id. feet the rights of the cestui que trust 16. Reed v. Painter, 145 Mo. 341, 30 long as the trust relation contin- 46 S. W. 1089. lea. 17. Norton v. MoDevit, 123 JN. C. 15. MoLester v. Woodlawn Ceme- 755, 30 S. E. 24. teiy, 165 Ala. 213, 51 So. 793. 18. Mellerio v. Freeman, 211 Pa. lOOS Statutes of LiMiTATioiir. land bought with community funds was by mistake conveyed to the wife as a part of her separate property, a suit by the husband after the wife's death to correct the mistake was to enforce a resulting trust, within the statute of limitations.-^' § 220a (8). Constructive, trust. The statute of limitations begins to run against the right of an heir to enforce a constructive trust growing out of a trust ex- isting in favor of his ancestor at the same time that it begins to ■ run against the ancestor.^" A suit to enforce a constructive trust to land is not stale and barred by limitations, where both parties continue to live on the premises together.^^ In cases of construc- tive or implied trusts the statute of limitations will not bar a suit where there is fraud. ^^ The statute of limitations commences to run in favor of the trustee of an involuntary or constructive trust as soon as the trust relation is created.^^ The statute of limitations runs against the right to assert a constructive trust.^^ Limitations do not begin to run where a guardian of a ward purchases prop- erty for him, and has title taken in the name of a third person, until the ward has knowledge that the deed was taken in the name of another.^^ The provision of the Kentucky statute of limitations that it shall not apply " in the case of a continuing and subsisting trust " applies only to trusts of an exclusively equitable character, 202, 60 Atl. 735; Freeman v. Laf- 28. Parks v. Satt«rthwaite, 133 ferty, 207 Pa. 32, 56 Atl. 230, under Ind. 411, 32 N. E. 82. * Act April 22, 1856, § 6 (P. L. 533). 23. Earle v. Bryant, 12 Cal. App. And see Frost v. Bush, 195 Pa. 544, 553, 107 Pac. 1018. 46 Atl. 80. 24. Markley v. Camden Safe De- 19. Strickland v. Baugh, (Tex. Civ. posit & Trust Co., 74 N. J. Eq. 279, App.) 169 S. W. 181. 69 Atl. 1100. 20. Lide v. Park, 135 Ala. 131, 33 25. Manahan v. HolmeS, 58 Misc. So. 175, 93 Am. St. Rep. 17. Rep. 86, 110 N. Y. Supp. 300. See, The right to enforce a constructive as to a trust created in shares of trust is barred in two years, unless corporate stock, Putnam v. Lincoln there are special circumstances jus- Safe Deposit Co., 49 Misc. Rep. 578, tifying greater delay. Id. lOO N. Y. Supp. 101, modified 118 21. Ackley v. Ci'oucher, 203 111. App. Div. 468, 104 N. Y. Supp. 4. 530, 68 N. E. 86. Tettsts and Teustees. 1009 ■where the trustee has the right to hold the estate and the cestui que trust has no right to sue for it, and therefore constructive trusts are not excluded from the operation of the statute.^ Under the Iowa statute, an action to enforce a constructive trust is barred tecause not brought vdthin five years after the discovery of the fraud relied on.^'' § 220a (9). What constitutes constructive trust. The statute of limitations does not commence to run against the claim of a husband that money in the possession of his wife was community property until the death of the wife, as the possession of community property by the wife is the possession of the hus- band.^ A stockholder, receiving in good faith dividends declared 26. Stubbins' Adm'r v. Briggs, 24 Ky. Law Kep. 230, 68 S. W. 392. A trustee of a fund paid over by Tnistake a portion of the body of the estate to the cestui que trust and on resigning was sued by his successor for the amount so paid. The cestui their respective rights to such income, and declaring it to be their property in certain proportions, does not remove such income fund from the trust so as to make such trustees simple debtors, and start limitations running against a claim therefor.^* Under a trust terminating on the creator's death, with provision for distribution of the residue then remaining among his daugh- ters, right of action bj one of the daughters against the trustee and his estate for an accounting accrued at such death ; no fraud of the trustee appearing.*" Where a bond and mortgage are assigned in trust, the trustee to raise funds for the mortgagee and account to him for the proceeds, and such accounting is had, the trust re- lation is at an end, and limitations begin to run in favor of the trustee from such accounting.*^ The trust relation between a grantor and grantee created by a conveyance of real estate to be sold by the latter, and the proceeds, after the payment of certain debts, to be paid to the grantor, is not terminated by the sale of such land by the grantee, and the relation of creditor and debtor substituted therefor, and limitations do not commence to run against the grantee for conversion of the surplus at the time of such sale and payment of debts.*^ Dated: Richardson v. Whitaker, 103 years later. It was held that the Ky. 425, SO Ky. Law Rep. 121, 45 right of action was barred both by S. W. 774; Jolly V. Miller, 30 Ky. the 6-year and the 10-year statute of Law Rep. 341, 98 S. W. 326; Hen- limitations; the cause of action hav- drick V. Miller, 30 Ky. Law. Rep. ing accrued at once, upon his receipt 330, 98 S. W. 330. of the property and failure to turn 39. Pearson v. Treadwell, 179 Mass. it over to th« wife's heirs. Townsend 462, 61 N. E. 44. v. Crowner, 125 N. Y. Supp. 329, 40. Olmstead v. Dodd, 144 App. judg. aff'd 145 App. Div. 906, 129 N. Div. 809, 129 N. Y. 519. Y. Supp. 1148. See also, as to when The heirs of a wife sued the heirs trust terminated: In re Sack, 70 of a husband to enforce a trust as to App. Div. 401, 75 N. Y. Supp. 120; the property of the wife, on the In re Farmers' Loan & Trust Co., 47 ground of a parol agreement between App. Div. 448, 62 N. Y. Supp. 359. them that the wife's property should 41. Hayes v. Walker, 70 S. C. 41, go to her heirs. The wife's adminis- 48 S. E. 989. trator turned over her property to 42. Irwin v. Holbrook, 26 Wash. 89, the husband, and the suit was not 66 Pac. 116. commenced until after his death, 13 Teusts and Teustees. 1013 § 220b(l). Repudiation or violation of trust — In general. The liability of a mortgage trustee to bondholders for loss re- sulting from his neglect to record the mortgage whereby a subse- quent mortgage obtains priority, accrues on the date the latter mortgage is recorded.^* When a trustee denies the trust to the cestui que trust, and claims the trust property by a title independ- ent of the trust and adversely to the claim of the beneficiary, the statute of limitations will run in favor of such trustee.** A sale by a trustee for his own interest is a repudiation of the trust, and limitations begin to run against the cestui que trust from the date- of the sale; hence, if the bank was a trustee holding title for the benefit of remaindermen when the stock was sold, there was a renunciation of the trust, in which the bank joined, and a cause of action arose at once in favor of the remaindermen.*^ Since no action accrues against an administrator in his individual capacity imtil there has been some violation of his trust, the statute of limi- tations does not begin to run imtil the date of such violation.** A grantee for life by conveying in fee repudiated his trust, so as to make limitation begin to run upon the taking of possession by As to tenninaton of trust, see for the violation of the trust, th^n also: the statute of limitations will run Ala. — liide v. Park, 135 Ala. 131, from tlie time that such legal action 33 So. 175, 93 Am. St. E.€p. 17. might have been brought. Id. La. — O'Neill v. Lienicke, 49 La. 45. Yeager v. Bank of Kentucky, Ann. 3, 21 So. 113. 33 Ky. Law Rep. 547, 106 S. W. 8M. N. C. — Dunn v. Dunn, 137 N. C. 46. Carr v. Catlin, 13 Kan. 393. 533, 50 S. E. 312. Where an administrator purchases Ohio. — Larwill v. Burke, 19 Ohio or acquires title to property of an Cir. Ct. E. 449, 10 O. 0. D. 605. estate, and afterwards, with the Tenn. — Lucas v. Malone, 106 Tenn. knowledge of the heirs, notoriously 380, 61 S. W. 83. asserts title in himself and claims 43. Miles v. Vivian, 79 Fed. 848, 25 adversely to the estate, he may avail C. C. A. 208 (C. C. A., N. Y.). himself of the statute of limitations 44. Larwill v. Burke, 19 Ohio Cir. against the heirs, and in the S'arae Ct- R. 449, 513, 10 O. C. D. 605. manner against the distributees, from Where a trust is of a nature of the date of final settlement and or- continuing and subsisting trust, and, der of distribution. Tapley v. Mc- iinder the articles of the law creat- Pike, 50 Mo. 589. ing it, there is given a legal action 1014 Statutes of Limitation. the grantee of the life tenant.^^ Where a grandfather sent a sum of money to his son to be held in trust for his grandson and paid to him on his attaining his majority, and such sum was accepted in trust for the benefit of such grandson, the statute of limitations did not run against such trust unless the son openly and expressly disavowed and repudiated the trust, and such repudiation waa brought to the knowledge of the grandson, and after receiving such personal knowledge he failed to use diligence in prosecuting his claim.** § 220b (2). Necessity for disclaimer or repudiation. Limitation does not begin to run in favor of a trustee under an express trust until a termination or repudiation thereof.*' Limita- tions do not run against an express trust, until there has been a re- pudiation thereof by the trustee, with notice thereof to the cestui que trust}" Limitations do not begin to run in favor of a trustee, as against the beneficiary, until the trustee repudiates the trust, 47. Horan v. O'Connell, (Tex. Civ. 350, 75 Pac. 854, modified on rehear- App.) 144 S. W. 1048. ing 28 Utah, 236, 78 Pac. 365. 48. Dawes v. Dawes, 116 111. App. 49. Ind. — Parks v. Satterthwaite, 36- 132 Ind. 411, 33 N. E. 82. As to repudiation or violation of Mass. — Andrews v. Tuttle-Smith trust in general, see: Co., 3 91 Mass. 461, 78 N. E. 99. tJ. S.— Patterson v. Hewitt, 11 N. Miss. — Stanton v. Helm, 87 Miss. M. 1, 66 Pax;. 552, 55 L. R. A. 658, 287, 39 So. 457. aff'd 195 U. S. 309, 25 Sup. Ct. 35, Tea!.— Barnett v. Houston, 18 Tex. 49 L. Ed. 214; Nash v. Ingalls, 79 Civ. App. 134, 44 S. W. 689. Fed. 510, aff'd 101 Fed. 645, 41 C. C. Wis.— Boyd v. Mutual Fire Ass'n, •A. 545 (C. C. A., Ohio.). 116 Wis. 155, 90 N". W. 1086, 61 L. III.— Maher v. Aldrich, 205 111. R. A. 918, 96 Am. St. Rep. 948, modi- 243, 68 N. E. 810. fied on rehearing 94 N. W. 171, 98 Kan.— Main v. Payn«, 17 Kan. Am. St, Rep. 948. 608, followed, Kennedy v. Kennedy, In the case of an express trust the 25 Kan. 151. statute of limitations commences to ffj/.— Stillwell V. Leavy, 84 Ky. run in favor of the trustee only on 379, 8 Ky. Law Rep. 321, 1 S. VV. his open repudiation of the trust. ^*°- Townsend v. Crowner, 125 N. Y. .V. y.— Greenley v. Shelmidine, 83 Supp. 329, judg. aff'd 145 App. Div. App. Div. 559, 82 N. Y. Supp. 176. 906, 129 N. Y. Supp. 1148. Utah.- Felkuer v. Dooly, 27 Utah, 50. Mioh.— Frank v. Morley's Es- Teusts and Teustees. 1015 and the beneficiary has notice thereof.^ The statute does not com- mence to run in favor of a trustee of land, as against the bene- :ficiary, until a renunciation of the trust.^^ A denial or repudia- tion of an implied or resulting trust is not necessary to cause limi- tation to run in favor of the trustee, but it commences at the time of the creation of the trust.^ Limitations do not begin to run against the enforcement of an express trust until there is a repvidia- tion of the trust by the trustee or some act by him amounting to a violation of the trust.^* No disaffirmance of an involuntary or ■constructive trust is necessary to set the statute of limitations in jnotion.^^ The statute of limitations begins to rim. against the enforcement of a trust against the trustee only upon the open dis- avowal of the trust.^^ Since limitations do not run against a trust tate, 106 Mich. 635, 64 N. W. 577; Shepherd v. Shepherd's Estate, 108 Mich. 82, 65 N. W. 580; Thome v. T'oley, 137 Mich. 649, 11 Detroit Leg. N. 438, 100 N. W. 905. Tex. — Bateman v. Ward, (Civ. App.) 93 S. W. 508. W. Va. — Jones v. Lemon, 26 W. \a. 639. 51. Idaho. — Nasholds v. McDonell, 6 Idaho, 377, 55 Pac. 894. Ind. — Daughertj v. Wheeler, 125 Ind. 431, 25 N. E. 543. A", r.— Hutton V. Smith, 74 App. Div. 284, 77 N. Y. Supp. 523, afiF'd 175 N. Y. 375, 67 N. E. 633. Tex. — Bamett v. Barnett, (Civ. App.) 80 S. W. 537. 52. Ind. — Warner v. Warner, 132 Ind. 313, 31 N. E. 466. Kan. — Kansas City Inv. Co. v. Fulton, 4 Kan. App. 115, 46 Pac. 188. 53. Cal. — Barker v. Hurley, 133 Oal. 31, 63 Pac. 1071. Ind. — Jackson v. Landers, 134 Ind. 329, 34 N. E. 333. 54. Title Ins. & Trust Co. v. Inger- ioll, 158 Cal. 474, 111 Pac. 360. Where defendant received plain- tiflf's goods to be sold by defendant as plaintiff's agent and accounted for, defendant was a trustee of an express trust, and hence limitations did not run against defendant's ob- ligation to account until after de- fendant had repudiated its agency. Allsopp V. Joshua Hendy Mach. Works, 5 Cal. App. 338, 90 Pac. 39. Where the pleadings and the evi- dence established a continuous trust, limitations did not commence to run until demand and a refusal to ae-- count for the property delivered pur- suant to the trust. Dillon v. Cross, 5 Cal. App. 766, 91 Pac. 439. 55. Earle v. Bryant, 12 Cal. App. 553, 107 Pac. 1018. So long as a trustee in a resulting trust under section 853 does not re- pudiate the same, limitations do not run against an action by the cestui que trust to have himself declared the owner. Faylor v. Faylor, 136 Cal. 93, 68 Pac 483. 56. Scott V. Dilley, 53 Ind. App. 100, 101 N. E. 313. 1016 Statutes of Limitation. until repudiation of it by the trustee, limitations do not run against the right to enforce a trust obligation of a purchaser of premises on a mortgage foreclosure, to refund to the mortgagor what she had in- vested in the premises, until he repudiated the trust ; for until that time he was charged as trustee, with the general duty of making repayment as a condition to holding his title as against the mort- gagor.^'' After a trust is repudiated the statute of limitations may be invoked by way of defense.^* The statute of limitations would not run in favor of a liquidating partner against the credi- tors and other members of the firm to bar an action for fraudulent misconduct in dealing with the firm assets until there was an offer to account as liquidating partner or an open repudiation of his trusteeship.^^ Where defendants held property acquired through legal proceedings by way of equitable mortgage, or transaction amounting to the same thing, in trust for plaintiff, on being paid what should appear to be due by him, the statute of limitations did not begin to run until the defendants repudiated the trust.^" Where a trust results by implication of law, a recognition by the trustee of the rights of the equitable owner tolls the running of limitations. To start the statute running ner v. Wilcox, 131 Iowa 223, 108 N. against an a/ction for money held by W. 238. one as trustee, there must be a clear 58. Babcock v. Farwell, 146 111. and unequivocal repudiation of the App. 307, judg. aff'd 245 111. 14, 91 trust. Lewis v. Hershey, 45 Ind. N. E. 683. App. 104, 90 N. E. 332. ^ 59. Breyfogle v. Bowman, 157 Ky. The statute does not run in favor 62, 162 S. W. 787. of one collecting money under a A mutual life insurance comipany foreclosure, where the mortgage pro- holds the equitable value of a policy vided that all money derived^ from in trust for the policy holder, and the foreclosure should be held by him the latter's cause of action on th& as trustee for the bondholder, so long policy is not barred by the statute of as he asserts no claim hostile to the limitations until after a demand for bondholder. Jones v. Henderson, 149 an accounting and a refusal to com- Ind. 458, 49 N. E. 443. ply with the demand. Southern Mut. 57. Carr v. Craig, 138 Iowa, 526, Life Ins. Co. v. Hodge, 13 Ky. Law 116 N. W. 720. Eep. 42. See also, as to necessity for repu- 60. Potter v. Kimball, 186 Mass. diation of trust: N«wis v. Topfer, 120, 71 N. E. 308. 121 Iowa 433, 96 N. W. 905; Wid- TeUSTS AlTD TeUSTEES. 1017 Tintil the holder of the title disavows the trust.^^ As hetween the trustee of an express trust and the cestui que trust, limitations do not run until repudiation hy the trustee and knowledge thereof by the cestui.^^ Limitations do not run in favor of an executor against one otherwise entitled to an accounting until the executor has by some act openly repudiated his trust.*^ The statute of limitations does not begin to run in favor of the trustee and against the bene- ficiary in personal property until the trustee does some act in open hostility to the trust, indicating a purpose to repudiate his obliga- tion and assert an individual right to the property constituting the corpus of the estate^* The six years' limitation prescribed by 61. Hunnicut v. Oren, 84 Kan. 460, 114 Pac. 1059. Limitations ordinarily do not com- mence to run against a trustee until he repudiates the trust or denies his liability, and it should appear that the beneficiary had, or ought to have had, knowledge of such repudiation or denial. Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091. 62. Watson v. Payne, 143 Mo. App. 721, 128 S. W. 238. Limitations did not begin to run against enforcing a parol trust in favor of trustee's mother, intended to be continued until her death, un- til repudiation of the trust by the trustee or his death. Murry v. King, 153 Mo. App. 710, 135 S. W. 107. Where a trustee permitted land held in trust to be sold for taxes and bid in for himself to cure a defect in title, the statute of limitations did not begin to run, as against the bene- ficiary, until the trustee repudiated the trust by selling the land to an innocent purchaser. Bender v. Zim- merman, 80 Mo. App. 138. 63. In re Anderson, 122 App. Div. 4S3, lOe N. Y. Supp. 818; In re Wood's Estate, 70 Misc. Eep. 467, 128 N. Y. Supp. 1102; In re Meyer's Estate, 181 N. Y. 562, 74 N. E. 1120, aff'g order 98 App. Div. 7, 90 N. Y. Supp. 185. See also In re Asheim's Estate, 111 App. Div. 176, 97 N. Y. Supp. 607, aff'd 185 N. Y. 609, 78 N. E. 1099; In re Jones' Estate, 30 Misc. Rep. 354, 63 N. Y. Supp. 726, judg. aflf'd 51 App. Div. 420, 64 N. Y. Supp. 667; In re Lyth, 32 Misc. Rep. 608, 67 N. Y. Supp. 579 ; Mount v. Mount, 35 Misc. Eep. 62, 71 ff. Y. Supp. 199, judg. rev'd 68 App. Div. 144, 74 N. Y. Supp. 148. 64. Devoe v. Lutz, 133 Aipp. Div. 356_, 117 N. Y. Supp. 339. The rule that the limitation of ac- tions against a trustee for an ac- counting does not begin to run un- til the trustee repudiates the trust does not apply to an action for an accounting against a trustee in in- vitum OT a constructive trustee, since the law will not presume that the trustee is not acting adversely to his trust. Hart v. Goadby, 72 Misc. Rep. 232, 129 N".' Y. Supp. 892. Property being purchased for joint account of two, and title taken by one 1018 Statutes of Limitation. the Minnesata statute, for actions to enforce a trust, does not begin to run against the suit by a monastic brotherhood to enforce its ownership under the constitution of the order in the gains of a member until the Tatter's death, where there has been no repudia- tion of the trust.*^ Where the vendee has repeatedly offered to pay the price and to receive a conveyance and stands able and willing to do so, the vendor holds the legal title in trust for the vendee; and limitations do not begin to run against specific performance until the vendor repudiated such trust, as by refusal to convey or recognize the contract.^" Limitation begins to run in favor of a trustee ex maleficio of a constructive trust from the time of the discovery of the fraud, but does not begin to run in favor of the trustee of a resulting trust until he by some act clearly repudiates his trust.^' The statute never runs against the enforcement of an express trust until by some declaration or act of the trustee an end is put to the relation of trustee and cestui que trust.^^ The statute of limitations does not run against an action on a bond as community administrator for failure to turn over assets until there is a repudiation of the trust or adverse holding under such circumstances as to be notice to the cestui que trust.^^ Where a advancing the price under agreement 66. Wright v. Brooks, 47 Mont. 99, that the other would paj' his share 130 Pac. 968. in three years, but he did not, and 67. Hanson v. Hanson, 78 Neb. 584, afterwards died without repudiating 111 N. W. 368. liability or request of performance, 68. Greenleaf v. Land & Lumber limitations could not be interposed Co., 146 N. C. 505, 60 S. E. 424; by heirs in a suit two years after Ruckman v. Cox, 63 W. Va. 74, 59 repudiation. Barney v. Hoyt, 150 S. E. 760. App. Div. 361, 135 N. Y. Supp. 126. If the equity consists of a riglit See also, as to the necessity for dis- on the part of the plaintiff to call claimer or repudiation of trust rela- upon the court to declare the holder tion : Seitz v. Seitz, 59 App. Div. of the legal title a trustee for any of 150, 69 N. Y. Supp. 170; Barnes v. the causes recognized by courts of C^ourtright, 37 Misc. Rep. 60, 74 N. equity, the statute runs from the Y. Supp. 203. time the right or cause of action ac- 65. Order of St. Benedict of New crues. Greenleaf v. Land & Lumber Jersey v. Kteinliauser, 234 U. S. 640, Co., supra. 34 Sup. Ct. 932. 69. Wingo v. Rudder (Tex. Civ. App.), ISO S. W. 1073. Trusts and Trustees. 1019 locative interest in land was held in trust, and possession was taken under such equitable title, limitations did not begin to run until the trust was repudiated.'" Where plaintiff deeded property to her son upon his representation that title would remain in her and lived on the property until he claimed it as his own, limitations did not run against an action to cancel the deeds until defendant disclaimed the trust. '^ In a suit for the enforcement of an ex- press trust, limitations do not begin to run until repudiation or ad- verse possession .by the trustee and knowledge thereof by the bene- ficiary.''^ A beneficiary of an express trust is not barred by limita- 70. Logan v. Robertson (Tex. Civ. App.), 83 S. W. 395. If a person held title to land in trust for a county, his possession would not be adverse, so as to start the statute of limitations, until there was a repudiation of the trust. Bell county v. Felts (Tex. Civ. App.), 12S S. W. 269. A suit to cancel a deed of land in trust for specific purposes is not barred by the four-year statute of limitations, though applicable to the case, where the evidence did not show a repudiation of the trust four years before the institution of the suit. Smith V. Olivarri (Tex. Civ. App.), 127 S. W. 235. Limitations, laches, or stale de- mand cannot be urged against the enforcement of a resulting trust un- til the trust has been repudiated. Pearce v. Dyess (Tex. Civ. App.), 101 S. W. 549. A corporation cannot plead limita- tion against its beneficiaries' demand until repudiation of the trust by it. Yeaman v. (Jalveston City Co. (Tex. Civ. App.), 167 S. W. 710, 173 S. W. 489. See also, as to necessity for dis- claimer or repudiation of the trust; Yeary v. Crenshaw, 30 Tex. Civ. App. 399, 70 S. W. 579; Oalcs v. West (Tex. Civ. App.), 64 S. W. 1033; Canadian & American Mortgage & Trust Co. V. Edinburgh-American Land-Mortgage Co., 16 Tex. Civ. App. 520, 41 S. W. 14'0; Scott V. Farmers' & Merchants' Nat. Bank: (Tex. dv. App.), 66 S. W. 485, 67 S. W. 343, rev'd 97 Tex. 31, 75 S. W. 7, 104 Am. St. Rep. 835. 71. Garvey v. Garvey, 52 Wash. 516, 101 Pac. 45. Where land was devised by a tes- tator to trustees absoliitely, and there was no repudiation . of the trust nor demand made upon the trustees for the land which the latter sold and conveyed, the statute of limita- tions does not begin to run against an action by one claiming to be the owner by descent from the testator to recover the same from the grantee until the date of the conveyance to ' him. Korsstrom v. Barnes, 156 Fed. 280 (U. S. C. C, Wash.). 72. Weltner v. Thurmond, 17 Wyo. 26«, 98 Pac. 590, afl"d 17 Wyo. 368, 99 Pac. 1128. 1020 Statutes of Limitatioic. tions from compelling the trustee to account, unless there has been an unequivocal repudiation of the trust.'^ § 220b (3). What constitutes repudiation or violation of trust. Where money appropriated by Congress is not paid to a bene- ficiary, but is covered into the treasury under the statute, and carried to the credit of the party for whose benefit the appropria- tion was made, an act repealing the appropriation must be re- garded as a disavowal of the trust, and it must be held that the statute of limitations began to run at the date of the repealing act.'* Where the issuance of stock certificates was deferred pending the formation of a pool, the issuance of the certificates to one not authorized, who sold them to another company, which was followed by two more unauthorized transfers, constituted a repudiation of the trust by the corporation sufficient to start the running of the statute of limitations, when brought to the knowledge of the owner of the stock.'^ Where heirs of an alleged trustee claimed owner- ship of the trust property, such claim was a renunciation of any trust, and limitations began to run against an action to enforce it from such time.'^ Where the grantee under deeds operating as mortgages conveys the land to a third person, such act is a disavowal of any trust resulting in the grantor's favor after payment of the 73. In re McClear's Will, 147 Wis. real property and the title to the 60, 133 N. W. 539. same was taken in the name of the 74. Russell v. United States, 37 Ct. defendant, plaintiffs could not sue to CI. (U. S.) 113. establish a resulting trust until ad- 75. Cortelyou v. Imperial Land verse claim by defendant, and the Co., 166 Cal. 14, 134 Pac. 981. statute of limitations would begin to Where an executor claimed land run only from that time. Pavlovich under a patent issued to the heirs of v. Pavlovich, 32 Cal. App. 500, 135 testator, the statute of limitations Pac. 303. See also, as to what con- ran from the date the executor noti- stitutes repudiation or violation of fied an heir in Pennsylvania of all trust: Castro v. Adams, 153 Cal. the facts respecting the patent. An- 382, 95 Pac. 1037; Norton v. Basaett, dreson Co. v. Regenold, 166 Cal. 44, 154 Cal. 411, 97 Pac. 894; Bowes v. 134 Pac. 999. Cannon, 50 Colo. 363, 116 Pac. 336. Where plaintiffs and defendant con- 76. Benson v. Dempster, 183 111. tributed equally for the purchase of 297, 55 N. E. 651. Teusts and Teustees. 1021 dett secured, and starts tlie statute of limitations running in the grantee's behalf against the grantor's suit for an accounting and to recoYcr the lands." Even if a bank is trustee of funds out of ■which a check certified by it is payable, its refusal of payment when demanded is a repudiation of the trust, and limitation runs from that time.'^^ Where plaintiff conveyed land to defendant un- der an agreement to reconvey on demand, the fact that defendant sold part of the land and accounted to plaintiff for the proceeds did not constitute such a repudiation of the agreement as to the remain- ing land as would start limitations against the plaintiff's right to recover the value of the latter on defendant's refusal to reconvey on demand.™ The acts of a trustee in selling a half interest in the trust estate with the full knowledge of the cestui que truest and his subsequent delivery of possession to the vendee without protest or objection, and in destroying a letter containing a re- cognition of the trust in the presence of the cestui que trust and his wife, were sufficient to indicate the repudiation of the trust by 77. Adams v. Holden, 111 Iowa 54, 82 N. W. 468. A trustee ew maleficio of land repu- iiates his trust, so as to initiate limi- tations, by selling the land. Black- ledge V. Blaekledge (Iowa), 91 N. W. S18. The failure to institute within the statutory period an action to enforce % trust in real estate based on the nisconduct of the trustee in convey- ng the land to another is not excused >y the fact that the beneficiaries sup- josed that the grantee, who was un- narried, would not live long, and ;hat the property would revert to ;hem as his heirs. Burch v. Nichol- on, 157 Iowa 502, 137 N. W. 1066. Where a husband who purchased and with his wife's money did not kny the existence of the resulting lurehase-money trust, but impliedly .dmitted it, lie cannot rely on limi- tations to prevent its enforcement. Johnson v. Foust, 158 Iowa 195, 139 N. W. 451. Enforcement of resulting trust in favor of a wife held not barred by limitations, where the husband had never repudiated or questioned his wife's rights. In re Mahin's Estate, 161 Iowa 459, 143 N. W. 430. 78. Blades v. Grant County Deposit Bank, 101 Ky. 163, 19 Ky. Law Rep. 340, 40 S. W. 246. Limitations against an action by a Grand Lodge against a bank for the amount of an overdraft by the de- faulting treasurer of the lodge do not begin to run in favor of the bank un- til the beneficiary discovered the breach of trust. Washbon v. Lin- scott State Bank, 87 Kan. 668, 125 Pae. 17. 79. Cromwell v. Norton, 193 Mass. 291, 79 N. E. 433. 1023 Statutes of Limitation. the trustee and to set limitations in motion against the enforcement of the trust.*" Where a trustee permits land, which by express agreement he holds for his cestui que trust, to be sold for taxes and bid in for himself, such act will not start the statute of limitations to rim in favor of the trustee as against the cestui que trust}^ Where a person receives the money of another and holds it in trust for his principal, the statute of limitations does not begin to run in favor of the person receiving the money until he assumes an attitude hostile to his principal's right, and indicates that his disposition of the money is no longer responsive to his principal's will.*^ That a trustee mingled the trust funds with her own in the purchase of property, and took title in her own name, does not justify a presumption that she thereby intended to repudiate the trust so as to set the statute of limitations running.'^ While the 80. Stanton v. Helm, 87 Miss. 287, 39 So. 457. In 1879 S. purohased land with his wife's money, and in 1880 it was con- veyed by a deed in which the wife joined, and the proceeds reinvested with her consent in a lot, and in 1882 the wife became of age, and died in 1884. It was held that a bill filed in July, 1900, by the wife's heirs to establish a resulting trust in the lot, was barred by the 10-year statute of limitations, which began to run from the tim-e the wife reached her ma- jority. Cox V. Menzing (Miss.), 30 So. 41. 81. Bender v. Zimmerman, 80 Mo. App. 138. 82. Morrison v. Blake, 33 Pa. Super. Ct. 290, 298. Where a will of testator, who died in 1893, made certain provisions for his widow, and the executors, under the widow's construction of the will, mad-e payments to her between 1892 *nd 1898, and the payments were not questioned by the residuary legatee until after the widow's death in 1906, the widow having received the money under a claim of right and not as a trust fund, the relation between her and the residuary legatee was that of'^debtor and creditor, and the residuary legatee could not reclaim the payments from the widow's ad- ministrator, the claim being barred by limitation. In re Skeel's Estate, 228 Pa. 407, 77 Atl. 635. 83. Hutton V. Smith, 74 App. Div. 284, 77 N. Y. Supp. 533, aff'd 175 N. Y. 375, 67 N. E. 633. Though a testamentary trustee characterizes his payments to the beneficiary as gifts, tliis is not such a disavowal of the relationship as will set in operation the statute of limitations. In re McCormick, 27 Misc. Rep. 416, 59 N. Y. Supp. 374. Where one negotiating a sale of land took the purchase-money bond and mortgage in his own name, and assigned them, and the assignee fore- TeUSTS and TEtrSTEES. 1023 statute of limitations is not available to the husband, who has qualified and taken possession of the community property, as against his children, so long as the trust relation continues, yet there is a repudiation of the trust, so that the statute commences to run against them, where there are unsuccessful negotiations for a com- promise, and he retains possession of the estate adversely to them.** X sale of land claimed by the son of the grantor to 'be impressed with a trust in his favor is a repudiation of the trust, setting in operation the statute of limitations in favor of the grantee.*^ If one occupying a position of trust makes false representations to closed, in a suit by the owner to have the property declared impressed with a trust, whether the trust was an ex- press one or one ex maleficio, limita- tions commenced to run when the mortgage was foreclosed by the as- signee, under Code Civ. Proc, § 388. Talmadge v. Russell, 74 App. Div. 7, 76 N. Y. Supp. 854. In an action by a remainderman against the personal representatives of a trustee, and beneficiary for an accounting and to enforce a liability against the estate of the beneficiary as a trustee, where it appeared that certain securities had stood in the name of the beneficiary, and were in- dorsed and sold by her, checks to her order being given in payment, and it does not appear how she disposed of the money, she, not having been a party to the decree adjudicating a trust, is presumed to hold the fund as trustee; so that the statute of limitations did not commence to run in her favor until her death, when the remaindermen became entitled to the possession of the estate. Putnam V. Lincoln Safe Deposit Co., 100 N. T. Supp. 101, 49 Misc. Rep. 578, modified 118 App. Div. 468, 104 N. Y. Supp. 4. 84. Koppehnann v. Koppelmann (Tex. Civ. App.), 59 S. W. 827. Where parents, holding property in trust as common family property of all the children, conveyed it to a son, and deed was duly acknowledged, delivered, and recorded, and the son entered into possession and dealt with the property as his own, a suit by the other children to set aside the deed, brought over nine years after the execution and recording of the deed, and the taking of possession by the son, was barred by limitations. Rymau v. Petruka (Tex. Civ. App. ) , 166 S. W. 711. 85. Phillips V. Sherman (Tex. Civ. App.), 39 S. W. 187. The wrongful sale of the trust property by the trustee does not set limitations running against the bene- ficiaries, where the trustee, after the sale, recognizes the continuance of the trust. Mixon v. Miles (Tex. Civ. App.), 46 S. W. 105. Where plaintiffs' father without their consent used money belonging to them to buy laud for himself, such act was a repudiation of the trust, and limitations then commenced to run, unless they were ignorant of 1024 Statutes of Limitatioit. the beneficiary, who relies thereon to his injury, he does an ac- tionahle wrong, and the limitations run from the commission of such wrong.^ Where a county upon collection of a city's taxes re- tained an amount, as commission, in excess of that allowed by stat- ute, but the retention was public and open under a claim of right in good faith, and known to the city, limitations ran against each amount so retained by the county from the date of each settlement with the city, and back of six years the statute of limitations was a bar to recovery of the excess retained.*'' § 220b (4). Notice of repudiation. The statute of limitations will not run against a positive vol- untary trust resting in parol, until repudiation of the trust by the trustee and knowledge of the repudiation by the beneficiaries.^ The their rights. Oakes v. West (Tex. Civ. App.), 64 S. W. 1033 Where a cestui que trust aban- doned and dismissed a suit to en- force the trust because of circum- stances leading him to believe that his title was not in fact repudiated by the trustee, and that the suit was not necessary, limitations did not run against the cestui. Snouflfer v. Heisig (Tex. Civ. App.), 130 S. W. 913. 86. Ott V. Hood, 152 Wis. 97, 139 N. W. 763. 87. City of Centerville v. Turner County, 25 S. D. 3O0, 136 N. W. 605, aflF'g judg. 33 S. D. 405, 133 IST. W. 350; City of Parker v. Turner County, 36 S. D. 85, 137 N. W. 533. A mere change in the course of studies, contrary to the condition on which a Protestant Mission was transferred by the American Board of Commissioners for Foreign Mis- sions to the Hawaiian government, viz., that the government should con- tinue the same as an institution for the cultivation of sound literature and solid science, and should teach no religiotis tenet or doctrine contrary to those theretofore inculcated by the mission, as set forth in a con- fession of faith, the institution, in case of breach of such condition, to revert to the mission with an alter- native, at the election of the govern- ment, to pay a stipulated sum, does not instantly operate to make the grantor of the property a claimant for money against whom the statute of limitations immediately begins to run. Lowrey v. Territory of Hawaii, 215 U. S. 554, 30 Sup. Ct. 309, 54 L. Ed. 325. 88. Taylor v. Morris, 163 Cal. 717, 127 Pac. 66. Where defendant in a suit to quiet title set up by cross claim that plain- tiff's title as trustee was derived from defendant by fraud and undue influ- ence, and it appeared that a convey- ance had been made on an under- standing that the property would ba Tbusts and Teustees. 1025 statute of limitations applicable to an action for repudiation of a resulting trust commences to run at the time notice of the re- pudiation is brought to the beneficiary.'' A cause of action to en- force a resulting trust accrues when the trust is repudiated by the trustee, and plaintiff has knowledge thereof.'" Limitations do not begin to run against trover by a bailor against the bailee until the bailor has knowledge of facts putting him on notice of the bailee's repudiation of the bailment.'^ Though limitations do not run against the right of the cestui que trust to recover the trust property from the trustee in a direct and continuing trust, yet when the trustee openly repudiates the trust and unequivocally sets up a right adverse to the cestui que trusty to the latter's knowledge, the statute begins to run."^ A transferee of trust property becomes trustee by construction of law, and the statute of limitations ordi- narily begins to run from the time of transfer, or as soon as the cestui que trust has knowledge.'* Where an express trust is re- managed by plaintiff, and defendant taken care of by her, limitations did not run against the cause of action set up in the cross complaint until a time when it had been brought to ■the notice of defendant that plain- tiff asserted title in herself. Odell V. Moss, 130 Cal. 352, 63 Pac. 555. 89. Bradley Bros. v. Bradley, 30 Cal. App. 1, 127 Pac. 1044. The statute of limitations operates against an express trust only from the time the trustee assumes a posi- tion of hostility to the trust. Mac- Mullan V. Kelly, 19 Cal. App. 700, 127 Pac. 819, aff'g judg. 124 Pac. 93. 90. Dennison v. Barney, 49 Colo. 442, 113 Pac. 519. A corporation being a trustee for its stockholders, before lapse of time begins to run by limitation or laches against the stockholder's right to an accounting for dividends on stock, the company must have repudiated 65 the relation and claimed the stock ad- versely, and brought the repudiation and claim to the knowledge of the stockholder. Mountain Waterworks Const. Co. V. Holme, 49 Colo. 412, 113 Pac. 501. See also, as to notice of repudiation of trust: Ballard v. Golob, 34 Colo. 417, 83 Pac. 376; French v. Woodruff, 25 Colo. 339, 54 Pac. 1015. 91. Plummer v. Hardisoa, 6 Ala. App. 525, 60 So. 502. 92. Hitchcock v. Cosper, 164 Ind. 633, 73 N. E. 264, rev'g judg. (Ind. App.), 69 N. E. 1029. 93. Blackett v. Ziegler, 147 Iowa 167, 125 N. W. 874. The statute of limitations does not begin to run in favot of one holding land in trust, as against the bene- ficiary, until the former has clearl}' notified the latter that he claims the land adversely. Zunkel v. Colson, 109 Iowa 695, 81 N. W. 175. 1026 Statutes of Limitation. pudiated, limitations begin to run from the time the beneficiary has notice thereof.^'' Whenever a trustee, whether the trust be created by power of attorney or by appointment as guardian, execu- tor, or administrator, repudiates the trust and asserts title to the subject of the trust,, the statute of limitations begins to run when a knowledge of the repudiation is brought home to the cestui que trust?^ Where there is an express trust limitations will not bar equitable relief, so long as the trustee has not repuidated the trust, to the knowledge of the beneficiary.'^ Limitations run against an action for the recovery of trust funds on the performance of tho trust, or when the trustee repudiates the trust, and the benefi- ciary is notified.'' Limitations do not begin to run against a. cou- 94. Olympia Min. & Mill. Co. v. Kerns, 24 Idaho 481, 135 Pae, 255. The statute of limitations dees not run against an action by the cestui que trust after becoming of age until she has notice that the trustee denies her right to the property. Goodman V. Smith, 94 Neb. 237, 142 N. W. 521. Limitations run in favor of a trus- tee only after he repudiates tha trust and asserts an adverse claim to th« knowledge of the cestui, and while the latter is sui juris and not under undue influence. Caro v. WoUenberg, 68 Or. 420, 136 Pac. 866. 95. .Jolly v. Miller, 30 Ky. Lav? Hep. 341, 98 S. W. 336; Hendrick v. Miller, 30 Ky. Law Rep. 330, 98 S. W. 330. See also, as to notice of repudiation: Williams v. Williams' Ex'r, 35 Ky. Law Rep. 836, 76 S. W. 413, judg. modified 25 Ky. Law Rep. 1085, 77 S. W. 184; Teeter v. Ander- son, 7 Ky. Law Rep. (abstract) 600, 8 Ky. Law Rep. 108. 96. Allen v. Stewart, 214 Mass. 109, 100 N. E. 1092. The statute of limitations does not begin to run in favor of a defendant alleged to hold in trust property paid, for , by plaintiff, until defendant's repudiation of the trust has been brought to plaintiff's knowledge- Martin V. Barnes, 214 Mass. 29, 100 N. E. 1033. 97. Johnston v. Johnston, 107 Minn. 109, 119 N. W. 652. See also. In re Welles' Estate, 79 Minn. 53, 81 N. W. 549. A cause of action accrues and limi- tations begin to run, under Miss. Rev. Code 1892, § 2763, in case of a trust, either express or implied, not cognizable by the courts of common law, where by express declaration or act adverse to the recognition and existence of the trust relation the cestuis que trust are actually ad- vised of the repudiation of the trust by the trustee. Stanton v. Helm, 87 Miss. 287, 39 So. 457. Where complainant and L. pur- chased a part of a mining claim, and. the deed to the interest of both was taken in L.'s name, the five-year stat- ute of limitations prescribed by Mont. Code Civ. Proc, § 518, began to run against an action by complainant to Tkusts and Tbdstees. 1027 structive trust arising from a disavowal or assertion of an adverse light by the trustee in possession of the trust property until the cestui que trust has learned, or from the circumstances should have learned, of such disavowal or assertion.'^ Where the cestui que trust has knowledge of the transaction, and is under no disability, and his right to demand and have the funds has accrued, the stat- ute of limitations will run against his claim.^' The statute does not begin to run against a trust till it has been openly disavowed by the trustee, insisting on an adverse right and interest, clearly ajid unequivocally made known to the cestui que trust} Limita- tions run against a suit to establish a trust in lands, in which the trustee has a life estate, only from the time the cestui que trust ascertains that he claims a greater estate than one for life.^ Limi- tations will not run in favor of a trustee against his beneficiai-y until there is some manifestation of a hostile purpose by the trustee, notice of which is brought home to the beneficiary.* enforce the trust created by such conveyance on the date complainant acquired knowledge that L. repu- diated the trust. Mantle v. Specula- tor Min. Co., 27 Mont. 473, 71 Pac. 665. 98. Crowley v. Crowley, 73 N. H. 241, 56 Atl. 190. In an action by a widow against the heirs of her deceased husband to establish a resulting trust in her favor in lands purchased by the hus- band with her money, the title being taken in his name without her knowl- edge, the constructive notice im- parted by the recording of the deed by the husband will not start limi- tations running against the wife, ■where during the transaction the hus- band acted as the agent of the wife and concealed from her the fact that the title was not taken in her name. Hinze v. Hinze, 76 Kan. 169, 90 Pac. 763. 99. Ward v. Ward, 12 O. C. D. 59. In 1846 legal limitations were not applied as between trustee and cestui que trust until after there had been an open rejpudiation of the trust brought home to the cestui que trust. Moton V. Dewell, 32 Ohio Cir. Ct. R. 35. 1. Levy V. Ryland, 32 Nev. 460, 109 Pac. 905. A suit to impress money as a trust, filed as an amended peti- tion in 1911 to an action begun in 1907 for money paid by mistake, is barred by limitations, where the trust had been disavowed in 1903 with notice to all interested. Nicholson v. Nicholson, 94 Kan. 153, 146 Pac. 340. 2. Preston v. Preston, 203 Pa. 515, 52 Atl. 193. 3. Home In v. Co. v. Strange (Tex. Civ. App.), 153 S. W. 510. In case of a resulting trust, the statute does not begin to run against an action by the cestui que trust till 1028 Statutes of Limitation. repudiation of the trust by the trus- tee, and notioe to the cestui que trust thereof. Teunisou v. Palmer (Tex. Civ. App.), 142 S. W. 948. Where defendant received money in trust, to be loaned pursuant to a continuing trust, limitations would not run against his liability to ac- count and pay over the balance until he had repudiated the trust, and such repudiation had been brought home to the cestui que trust. Watson v. Dodson (Tex. Civ. App.), 143 S. W. 339. See also, as to notice of repudia- tion of trust: W. Y.—In re Smith's Estate, 66 App. Div. 340, 73 N. Y. Supp. 1062, order aff'd 179 N. Y. 563, 71 N. E. 1140. 8. 0. — Montague v. Priester, 82 S. C. 492, 64 S. E. 393. Tenn. — Fennell v. Loague, 107 Tenn. 239, 63 S. W. 1131. Tea!.— Campbell v. Shifflett (Tex. Civ. App.), 154 S. W. 664; Wood v. Dean (Tex. Civ. App.), 155 S. W. 363; Japhet v. Pullen (Tex. Civ. App.), 133 S. W. 441; Bond v. Poindexter (Tex. Civ. App.), 116 S. W. 395; Woodward v. San Antonio Traction Co. (Tex. Civ. App.), 95 S. W. 76; Davis v. Harwick, 43 Tex. Civ. App. 71, 94 S. W. 359; Hall v. Semple (Tex. Civ. App.), 91 S. W. 248; McCarthy v. Woods (Tex. Civ. App.), 87 S. W. 405; Laguerenne v. Farrar, 25 Tex. Civ. App. 404, 61 S. W. 953; Gregory v. Montgomery, 23 Tex. Civ. App. 68, 56 S. W. 231; Davis V. Davis, 20 Tex. Civ. App. 310, 49 S. W. 726; Scott v. Farmers' & Merchants' Nat. Bank (Tex. Civ. App.), 66 S. W. 485, 67 S. W. 343, rev'd 97 Tex. 31, 75 S. W. 7, 104 Am. St. Rep. 835; Eice v. Ward (Tex. Civ. App.), 54 S. W. 318, judg. rev'd 93 Tex. 532, 56 S. W. 747. Wash. — New York Security & Trust Co. v. City of Tacoma, 30 Wash. 661, 71 Pae. 194. Wis.— Hill V. Tru«, 104 Wis. S94, 80 N. W. 462. MOETGAGOE AND MoETGAQEB. 1029 CHAPTEK XXI. MOKTGAGOE ASTD MoETGAGEE. Section 221. Kelation of, to the property. 222. Distinction between note or bond, and the mortgage given to secure its payment. Periods of limitation as to, in the several states. 223. Statutory provisions relative to mortgages. 224. When statute begins to run in favor of or against the mortgagor. 225. Eight of redemption barred, when. 226. When mortgagor is in possession of a part of the premises. 227. Liability of mortgagee in possession. 228. Welsh mortgages. 229. Presumption of payment. Effect of part payment. 230. Effect of acknowledgment or new promise upon the mortgage. 231. Effect of fraud on part of mortgagee. 232. Distinction between equitable lien for purchase-money and mort- 233. Distinction between a pledge and a mortgage. Difference ia application of statute to the one and the other. 234. Discharge of mortgage debt, effect of. 235. Mortgagee in possession. 236. Absolute conveyances, but in fact mortgages. § 221. Relation of, to the property. Strictly speaking, by a mortgage conveyance the mortgagee is invested with the legal title to the estate, while the mortgagor re- tains only the equitable title, which gives to him the right to rein- vest himself with the legal title upon performance of the conditions imposed by the conveyance. In other words, the mortgagee takes the legal title subject to a condition, unless, as is the case in some of the States, the statute regulates the character of the relative estates.^ 1. In some of the Western States, Rep. 199; Cook v. Prindle, 97 Iowa when the statute bars the debt, it 464, 66 N. W. 781, 59 Am. St. Eep. discharges the mortgage. See e. g. 424. But this is not the view taken Leeds Lumber Co. v. Haworth, 98 in most of the Eastern States, or Iowa 463, 67 N. W. 383, 60 Am. St. probably in a majority of the States. 1030 Statutes of Ltmitation. There is raucL. confusion in the cases as to the precise relation of a mortgagor and mortgagee to the estate;^ but this results mainly from a difference in the form of the mortgages under which the decisions have arisen, and in some instances from the. peculiar provisions of statutes relating to the matter.^ The mort- gagor has sometimes been treated as a tenant at will to the mort- gagee, or as a mere tenant at sufferance; but at the present day, imtil condition broken and foreclosure, a mortgagor is treated both at law and in equity, as the legal owner of the estate, the mortgage being only a security, and the mortgagee having only a lien upon the land, as a security for his debt.* But in some of the States it is held that a mortgage in fee See 2 Jones on Mortgages (5th Ed.), § 1203 et seq.; McKisaon v. Daven- port, 83 Mich. 211, 47 N. W. ICO, 10 L. R. A. 507, and note; Kulp v. Kulp, 51 Kan. 341, 32 Pae. 1118, 21 L. E. A. 550 and note. Where, as in Kentucky, there is no statute of limi- tations as to liens, then if the instru- ment shows no different intent, they are only valid and enforceable so long as the debt they secure is a valid and enforceable obligation. Craddock v. Lee, 22 Ky. Law Rep. 1651, 61 S, W. 23, 24. As to deeds of trust, see Ful- ler v. Oneal, 82 Texas, 417, 18 S. W. 479, 481; McGovney v. Gwillim, 16 Col. App. 284, 65 Pao. 346; Angell on Limitations (6th Ed.), § 468. 2. A mortgagor, says Parke, B., " can be described only by saying he is a mortgagor." Litchfield v. Ready, 20 L. J. Exch. 51. 3. "A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only quodam modo. Nothing is more apt to confound than a simile. When the court or counsel call a mortgagor a tenant at will, it is barely a compari- son. He is like a tenant at will." Moss v. Gallimore, Doug. 279. 4. Elfe V. Cole, 26 Ga. 197; Cas- borne v. Soarfe, 1 Atk. 603; Jackson V. Lodge, 36 Cal. 28; Thayer v. Cramer, 1 McCord (S. C.) Ch. 395; McMillan v. Richards, 9 Cal. 365; United States v. Athens Armory, 35 Ga. 344; Pay v. Cheney, 31 Mass. (14 Pick.) 399; Caruthers v. Humphrey, 12 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Hall v. Savill, 3 Iowa 37. But in some of the States the legal title is held to pass for some purposes. Thus, in Glass v. Ellison, 9 N. H. 69, it was held toat, for the protection of the interests of the mortgagee, and in order to give him the full benefits of his security, the legal estate passes, but that for other purposes the mortgage is in general held to operate only as a mere security for the debt. See also, to same effect, Clark v. Reyburn, 1 Kan. 281. In many of the States, as between the mortgagor and mort- gagee, it is held that the title passes, but not as to third persons. Terry V. Rosell, 32 Ark. 478. MOETGAGOE AWD MoETGAGEE. 1031' passes both the legal and equitable estate, defeasible by the per- formance of the condition according to its legal effect.^ The preponderance of authority, however, relative to ordinary mort- gages, is in favor of the doctrine that the title remains in the mortgagor, at least until after condition broken (and in many of the States until after foreclosure) f and in England, while the 5. Blaney v. Bearce, 2 Me. 133; Briggs V. Fish, 2 D. Chip. (Vt.) 100; Carter v. Taylor, 40 Tenn. (3 Head) 30; Erskine v. Townsend, 2 Mass. 495; Wood's Landlord & Tenant, 183 «t seg. 6. Whitemore v. Shiverick, 3 Nev. 288; Jackson v. Lodge, 36 Cal. 28 McMillan v. Kichards, 9 Cal. 365 Goodenow v. Ewer, 16 Cal. 461 Boggs V. Hargrave, Gal. 559; Fog- arty V. Sawyer, 17 Cal. 589; Button V. Warscha'uer, 21 Gal. 609; Blud- worth V. Lake, 33 Cal. 265; Davis v. Anderson, 1 Ga. 176; Ragland v. Justices, etc., 10 Ga. 65; Elfe Ass'n V. Cole, 26 Ga. 197; United States V. Athens Armory, 35 Ga. 344; Seals V. Cashin, 2 Ga. Dec. 76; Hall V. Savill, 3 G. Greene (Iowa) 37; Chick V. Willetts, 2 Kan. 384; Caru- thers V. Humphrey, 13 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Thayer v. Cramer, 1 MeGord {S. C.) Ch. 395. In Alabama, a mortgage is re- garded as possessing a dual nature, tearing one character in a court of law and another in a court of equity, but the legal estate is treated as re- maining in the mortgagor until con- dition broken, when it at once vests in the mortgagee, leaving only an equity of redemption in the mort- gagor. Welsh V. Phillips, 54 Ala. 309. In Arkansas, the legal estate, as between the mortgagor and mort- gagee, is treated as being in the lat- ter, but as to third persons it is in the mortgagor. Terry v. Resell, 33 Ark. 478; Collins v. Torry, 7 Johns. (N. Y.) 278, 5 Am. Dee. 273; Blan- chard v. Brooks, 29 Mass. (12 Pick.) 47. In Kansas, Life Association v. Cook, 20 Ka,n. 19; Michigan, Wagar V. Stone, :!6 Mich. 364; Nebraska, Harley v. Estes, 6 Neb. 386; Cali- fornia, Jackson v. Lodge, supra; Georgia, Eayland v. Justices, 10 Ga, 65; Nevada, Whitraore v. Shivericlc, 3 Nev. 288; and, indeed, in most of the States, a mortgage is held to be a mere security, vesting no estate in the mortgagee until after foreclosure, Myers v. White, 1 Rawle (Pa.) 353; State V. Laval, 4 MoCord (S. C.) 336; Cheever v. Railroa.d Co., 39 Vt. 363; while in Rhode Island, Connec- ticut,- New Hampshire, Minnesota, Indiana, North Carolina, Mississippi, Missouri, and Massachusetts, the common law rule, with some limita- tions, prevails. It is a mere incident of the debt, and falls with it. Mor- ris V. Bacon, 123 Mass. 58; Benton v. Bailey, 50 Vt. 137. In New York, by statute, an action of ejectment by a mortgagee is ab- olished, and, in the absence of any contract for possession, the mort- gagor is entitled thereto, and to the rents and profits of the estate, unless, upon a proper showing as to the in. 1032 Statutes of Limitatioit. mortgagor is in possession, or in receipt of the rents and profits, he is treated as a freeholder, and as such is entitled to vote in the election of members of Parliament,'' and is entitled to retain possession until the mortgagee enters or brings ejectment,* and is not liable to the mortgagee for the rents or profits of the premises.* The right of the mortgagor to retain possession of the premises, and consequently his right to lease the same after mortgage, is generally upheld, but must depend largely upon the language of the mortgage, and upon the statutes relating thereto in the several States, although the instances are very rare where a mort- gagee takes possession before condition broken, or even before foreclosure and final decree. But, without stopping to discuss the relation of the parties to the estate further, it may be said that the tenant can acquire no greater rights than the mortgagor himself had, but may defend his title under the lease to the same extent that the mortgagor could, and may even redeem the estate to protect his term.-^" adequacy of the security, and the irresponsibility of the mortgagor, the courts will appoint a receiver of the rents. Astor v. Turner, 11 Paige (N. Y.) Ch. 436; Sea Ins. Co. v. Stebbins, 8 id. 565. But after sale, a tenant who went in under the mortgagor, and was made a party to the proceed- ings, is bound to attorn to the pur- chaser. Lovett V. Church, 9 How. Pr. (N. Y.) 226. 7. 3 & 4 Will. IV., c. 45, § 23. 8. Rex V. Edington, 1 East 293; Keech V. Hall, 1 Doug. 21; Eree v. Ilolbeeh, 2 id. 655; Reading of Judge Trowbridge, 8 Mass. 551; Clark v. Reyburn, 1 Kan. 281. 9. Renard v. Brown, 7 Neb. 449. The mortgagor's right to lease and take the rents continues until it is divested by some positive interfer- ence of the mortgagee. Dunn v. Til- lery, 79 N. C. 497; Chadbourn v. Henderson, 61 Tenn. (2 Baxter) 460; Gibson v. Farley, 16 Mass. 280. 10. Rogers v. Moore, 11 Conn. 553. As to tenant's right to redeem, see Averill v. Taylor, 8 N. Y. 44. In, Walker v. King, 44 Vt. 601, it waa held that a mortgagee who has never taken possession under his mortgage, but has permitted the assignee of the mortgagor to remain in possession, has no greater claim against him for rents and profits than he would have against the mortgagor; and it is well settled that he has no claim upon the mortgagor therefor, either at law or in equity. Eic parte Wilson, 2 V. & B. 252; Hele v. Bexley, 20 Beav. 127; Walmsley v. Milne, 7 C. B. N. S. 115; Moss V. Gallimore, 1 Doug. 279 ; Trent v. Hunt, 9 Exch. 14 ; Jolly V. Arbuthnot, 28 L. J. Oh. 547; Col« MOETGAGOE AND MoETGAGEE. 1033 The mortgagor is now generally treated, at least in equity, as retaining both the legal and the equitable title, and the mort- gagee as only holding under his mortgage a conditional title or lien upon the land for the payment of the debt it is given to secure. -"^ But whatever may be the true relation of the parties on Ejectment, 38, 473. In Greorgia, the mortgagor is entitled to all the rents arid profits of the land, until he is sold out and dispossessed by foreclosure proceedings Vason v. Ball, 56 Ga. 268. In Kentucky, un- less the rents and profits are specially pledged, the same rule prevails, and the mortgagee cannot claim them as a legal incident of the estate. A court of equity may, after the debt becomes due, if the property is in- adequate to secure the debt, in an ac- tion to foreclose the mortgage, ap- point a receiver of the rents. But if there is no deficiency, they go to the mortgagor. Douglass v. Cline, 75 Ky. (12 Bush) 608. In Mississippi, the mortgagor retains the legal title and right of possession until condition broken, and the mortgagee cannot in- terfere therewith, nor can the mort- gagee take the rents and profits un- less so agreed. Myers v. Estell, 48 Miss. 373; Black v. Payne, 52 Miss. 271. In North Carolina, the mortga- gor is treated as having an equitable freehold. State v. Eagaland, 75 N. C. 12. In Tennessee, the mortgage to the extent of the mortgage debt is pro tanto a sale, giving the mort- gagee all the rights of a bona fide purchaser. 3 Tenn. Ch. 531. So in Iowa. Hewitt v. Rankin, 41 Iowa 35. In Vermont, after condition broken, lie may enter and take possession ■■without previous notice, if he can do 8o peacefully. Fuller v. Eddy, 49 Vt. II. So in Maine, he may enter and harvest the crops, unless the mort- gagor is occupying by agreement, aa tenant. Gilman v. Wills, 66 Me. 273. In Pennsylvania, the mortgagee is treated as having the title and right of possession to hold until payment, and may enter and hold the lands and receive the rents and profits until the mortgage debt is paid. Tryon v. Munson, 77 Pa. 250. These conflict- ing doctrines are, however, only ap- plicable to ordinary mortgages, and the parties may, by special provi- sion, entirely change the respective rights of the parties under the mort- gage. 11. Carpenter v. Bowen, 42 Miss. 28; Trimm v. Marsh, 54 N. Y. 599; Fletcher v. Holmes, 32 Ind. 497; Buchanan v. Munroe, 22 Tex. 537; Williams v. Beard, 1 S. C. 309 ; John- ston V. Houston, 47 Mo. 227; Fletcher V. Holmes, 32 Ind. 497; Elfe Ass'n V. Cole, 26 Ga. 197; Mack v. Wetzlar, 39 Cal. 247; Priest v. Wheelock, 58 III. 114. Although in form a convey- ance in fee upon condition, yet, in effect, even after condition broken, it is a mere security for a debt, and the title reverts without a reconvey- ance, whenever the debt is paid. Pease v. Pilot Knob Iron Co., 49 Mo. 124; and, before foreclosure, is not subject to levy and sale, Buckley v. I>aley, 45 Miss. 338. And until con- dition broken he is entitled to pos- session, unless otherwise provided in 1034 Statutes of Limitation. to the property, it is held that, whichever may be in possession he holds the possession for the other, until condition broken, and neither can set up an adverse claim against the other until that the mortgage, and is in by right and by virtue of his title, and not as a tenant at sufferance. Hooper v. Wil- son, 12 Vt. 695; Crippen v. Morri- son, 13 Mich. 23; Kidd v. Temple, 23 Cal. 255. And if a mortgagee takes a lease of the mortgagor of the same lands, he will be treated as holding under the lease until be has made his election to hold under the mortgage. Wood V. Felton, 36 Mass. (9 Pick.) 171. And after condition broken he may hold under his mortgage with- out first surrendering possession un- der the lease. Shields v. Lozear, 34 N. J. L. 496. The mortgagor's inter- est is an estate of inheritance in no wise affected by the mortgage before entry and foreclosure. White v. Eit- tenmeyer, 30 Iowa 268. See Miner v. Beekman, 11 Abb. Pr. N". S. (N. Y.) 147; Norcross v. Norcross, 105 Mass. 265; O'Dougherty v. Felt, 65 Barb. (N. Y.) 220. And even after the debt is due he is not entitled to the rents and profits unless the security is insufficient. Myers v. Estell, 48 Miss. 373. As to the nature of mort- gagor's estate, see Kline v. Mc- Guckin, 24 N. J. Eq. 411; Hill v. Hewitt, 35 Iowa 563; Trimm v. Marsh, 54 N. Y. 599; Annapolis, etc., R. R. Co. V. Gantt, 39 Md. 115. The mortgage is but a security, and the freehold still remains in the mortga- gor. Jackson v. Willard, 4 Johns. (N. Y.) 41. He is seised and is the legal owner. Orr v. Hadley, 36 N. H. 575; Hitchcock v. Harrington, 6 Johns. (N. Y.) 390; Runyan v. Mer- sereau, 11 id. 534. The mortgagee. before condition broken at least, haa no estate in the land distinct from the debt. Aymar v. Bill, 5 Johns. Ch. 570. When out of possession he cannot be treated as the proprietor of the estate. Norwich v. Hubbard, 22 Conn. 587. It is only a security, and the mortgagor has the sam6 rights to the estate that he ever had, except against the mortgagor. Wil- kins V. French, 30 Me. Ill; Orr v. Hadley, 36 N. H. 575. And as against him, until he has legally entered for condition broken, Kennett v. Plum- mer, 38 Mo. 143; imder foreclosure proceedings, or as a judgment of a court of law, or by the consent of the mortgagor. Hooper v. Wilson, 13 Vt. 695; Crippen v. Morrison, 13 Mich. 23; Pierce v. Brown, 24 Vt. 195; Hill v. Robertson, 24 Miss. 368; Pratt v. Skolfield, 45 Me. 386. Lord Mans- field, in The King v. St. Michael's, 3 Doug. 631, very clearly defines the relations of the mortgagor and mort- gagee to the lands. He says: "A mortgagor in possession gains a set- tlement because the mortgagee, not- withstanding the form, has but a chattel, and the mortgage is only se- curity. It is an affront to common sense to say that the mortgagor is not the real owner." See Martin v. Weston, 3 Burr. 978. In Eaton v. Jaques, 3 Doug. 455, a term for years was assigned by way of mortgage with a clause of redemption, and it was held by the court that the les- sor could not sue the mortgagee as assignee of all the estate, right, title, interest, etc., of the mortgagor evea MOBTGAGOE AND MoETGAGEE. 1035 event has transpired.^^ The rule is that the mortgagor and his vendee hold in subordination to the title of the mortgagee, not adversely to him; and the statute of limitations does not run, even after the law-day is past, as in favor of the mortgagor or his vendee, without some overt act throwing off allegiance; for it cannot be known otherwise that the mortgagor or his vendee is not quietly enjoying the possession of the equity of redemption, at all times acknowledging the rights of the mortgagee; and if, in an action by the second mortgagee against the mortgagor, he recover the property, and purchase subsequently at his own sale, the first mortgagee is not barred, by limitation, until six years from the sale, of his right of foreclosure.^^ " One is much at a after the mortgage had • been for- feited, unless the mortgagee had taken actual possession. See also, Walker V. Reeves, S Doug. 461, note 1. In The King v. Eddington, 1 East 288, it was held that the object of a mort- gage is merely to secure a debt, and that the legal estate still remains in the mortgagor; and it was held also that the husband of a woman who had an estate in a term for ninety- nine years, but which had been by her and her first husband mortgaged to secure a loan, gained a settlement by a residence upon the estate for forty days, under a statute which en- abled a person owning a freehold es- tate in a parish, who resided upon it for the period of forty days, to ac- quire a settlement therein; and the court adopted the rule as stated by Lord Mansfield in The King v. St. Michael's, supra. See opinion of Grose, J. The legal estate of the mortgagor ia not divested by condi- tion broken or entry therefor by the mortgagee, but he retains such an estate therein that it may be levied upon and sold under execution. Trimm v. Marsh, 54 N. Y. 599; Gor- ham V. Arnold, 23 Mich. 247. But contra, see Buckley v. Daly, 45 Miss. 338. In Kennett v. Plummer, 58 Mo. 142, it was held that, until after condition broken and entry by the mortgagee, the mortgagor continues owner, and may lease the estate, and in every respect deal with it as owner, M'Kirclier v. Hawley, 16 Johns. (N. Y.) 289; Partington v. Woodcock, 5 N. & M. 672; Watts v. Coffin, 11 Johns. (N. Y.) 495; Rogers v. Humphreys, 4 Ad. & El. 299; Part- ington V. Woodcock, 5 N. & M. 672; Peters v. Elkins, 14 Ohio 344; Rog- ers V. Moore, 11 Conn. 553. 12. Gould V. Newman, 6 Mass. 239; Sweetser v. Lowell, 33 Me. 446; Col- ton V. Smith, 11 Pick. 28 Mass. 311; McGuire v. Shelby, 20 Ala. 456. 13. Boyd v. Beck, 29 Ark. 703; Jamison v. Perry, 38 Iowa 14; Rock- well V. Servant, 63 111. 424; Parker v. .Banks, 79 N. 0. 480; Medley v. Elliott, 62 III. 532; Martin v. Jack- son, 27 Pa. 504. 1036 Statutes of Limitation. loss," says PattefSon, J.," " as to the proper terms in which to describe the relation of mortgagor in possession to the mortgagee. In one case ^^ such mortgagor is held to be tenant to the mort- gagee; sometimes he is said to be the bailiff of the mortgagee; and in a late case Lord Tenterden said that his situation was of a peculiar character. But it is clear that his possession is, at all events, not adverse to the title of the mortgagee." ^^ It has sometimes been thought that the mortgagee occupies the position of a trustee to the mortgagor; but as there is no trust expressed in the mortgage, if he can be said to be a trustee at all, it is only by implication, and in subordination to the main purposes of the contract. His right is qualified and limited, yet he has a distinct and beneficial interest in the estate which may in a certain contin- gency becoine absolute and perpetual, and may be enforced against the mortgagor. It is a general rule that a trustee is not allowed to deprive his cestui que trust of the possession; but a court of equity never interferes to prevent the mortgagee from assuming the possession. In this respect, it will be perceived that there is a marked difference in the contract between mortgagor and mort- gagee, and trustee and cestui que trust. A trustee is estopped in equity from dispossessing his cestui que trusty because such dis- possession would be a breach of trust. A mortgagee cannot he estopped, because in him it is no breach of trust, but in con- formity to his contract. On the same principle a mortgagee is not prevented, but assisted in equity, when he has recourse to a proceeding which is not only to obtain the possession, but the absolute title to the estate, by forclosure. There is no resem- blance, in this respect, to the character of a trustee, but to a character directly opposite; and it is in this opposite character that the mortgagee accounts for the rents and profits when m possession, and when he is not, receives the interest of his mort- 14. Jones v. Williams, 5 A 109; Knowltou V. Walker, 13 Wis. 264; Cook v. Finkler, 9 Mich. 131; Ross V. Norvell, 1 Wash. (Va.) 17; Gunn v. Brantley, 21 Ala. 633; Montgomery v. Chadwick, 7 Iowa 114; Hallesy v. Jackson, 66 111. 139; McNair v. Lot, 34 Mo. 285. MOETGAGOE AND MORTGAGEE. 1041 ■fixed by statute, unless the operation of the statute has been saved by some one of the modes provided in the statute; and a court of equity will decree the satisfaction of a mortgage which has been permitted to lie dormant during the entire period fixed by statute for the maturing of this presumption j^" whereas, under the common-law presumption, while a court of equity in analogy to the statute will not enforce a mortgage, which has been per- mitted to lie dormant for the period requisite imder the statute to acquire the title to land by adverse possession, neither, on the* other hand, will it ordinarily decree its satisfaction unless pay- ment in fact is proved, — ^the mere lapse of time, of itself, not being regarded as a sufficient ground for its interference,'^ and the | presumption raised by the lapse of such period is liable to rebuttal by evidence which fairly raises a contrary presumption.'^ It may be said that the special reasons which will let a mortgagor in to redeem after the lapse of such period must come within some one of the exceptions named in the statute;'' and if the mortgagor or those claiming under him is under any disability at the time when the mortgage debt matures, or the condition thereof is broken, neither the statute nor the presumption applies until such disa- bility is removed.'* There is another circumstance to be con- 30. Kellogg V. Woods, 7 Paige (N. will not, except for special reasons, Y.) Ch. 578. be admitted to redeem. See Robin- Si. Coates V. Roberts, 2 Phila. son v. Fife, 3 Ohio St. 551. (Pa.) 344. 33. Limerick v. Voorhis, 9 Johns. 32. Ayres v. Waite, 64 Mass. (10 (N. Y.) 129; Demarest v. Wynkoop, Cush.) 72, where it was held that, 3 Johns. Ch. (N. Y.) 129. where no entry to foreclose a mort- 34. Beckford v. Wade, 17 Ves. 87; gage has been made in compliance Price v. Copner, 1 S. & S. 347; Jen- with the statute, a bill to redeem ner v. Tracey, 3 P. Wms. 387, note; may be brought by a mortgagor at White v. Ewer, 2 Vent. 340; Beleh any time within twenty years, an-d v. Harvey, 3 P. Wms. 387, note; that ifv the mortgagee has been in Lamar v. James, 3 H. & M. (Md.) peaceable possession after condition 328; Demarest v. Wynkoop, supra. broken for that period, no interest The instances where a mortgagee or having been paid, the right to re- mortgagor are under disabilities deem ia not favored in equity, and in must be extremely rare, as usually analogy to the statute the mortgagor neither will be under a disability at 66 1042 Statutes of LiMiTATrow. sidered in determining the right of the mortgagor to redeem after the mortgagee has been in possession for the requisite statutory period, and that is, whether during the entire period his possession has been adverse to the mortgagor, because, if he has misled the mortgagor by assuming any obligation to him as a return for his being let into possession or otherwise, whereby the mortgagor has been induced to lie by without redeeming the land, a court of equity will not treat the possession as adverse.'^ In those States where special statutory provisions are made ^* that a failure to bring proceedings to redeem mortgaged premises within a certain number of years after entry by the mortgagee shall forever bar the mortgagor, of course a court of equity has no power to override the statute and let the mortgagor in to redeem, where the time has run and the statute fairly applies ; but where no statutory provision is made, courts of equity adopt the period prescribed by the statute for the acquisition of a title by possession as the period requisite to bar a right of entry by a mortgagor or mortgagee.^'' the date of the mortgage. But in- remain in possession of the mortgaged stances may arise where a disability premises during that period cannot intervenes between the date of the afterwards sustain a bill to redeem mortgage and the accruing of a right without sihowing such circumstances of action under it, as where either as will reliev« his case from the opera- party becomes insane. tion of the general rule. As in this 35. Demarest v. Wynkoop, supra; State the right of entry upon lands is Rafferty v. King, 1 Keen 601; Hyde limited to a period of fifteen years, V. Dillaway, 2 Hare 538. our courts, proceeding upon the same 36. As in California, New Jersey, principle, have repeatedly held that Kentucky, Mississippi, and North the mortgagor under such circum- Carollna. stances must bring his bill within 37. Jarvis v. Woodruff, 2Z Conn, fifteen years, and is not allowed 548; Crittendon v. Brainard, 2 Root twenty years for that purpose. And (Conn.) 485; Skinner v. Smith, 1 they have said that it may be adopted Day (Conn.) 124. In Haskell v. as a rule that the mortgagee being in Bailey, 33 Conn. 569, Waite, J., says: possession, a mortgagor shall not " Where the right of entry upon have more than fifteen years to re- lands is, by statute, limited to a deem after his equitable right haa period of twenty years, a mortgagor accrued, unless the delay shall be ac- "who haa suffered the mortgagee to counted for by statute disabilities, or MOETGAGOE AND MORTGAGEE. 1043 § 223. Statutory provisions relative to mortgages. The same rule prevails as to mortgage debts as prevails in refer- ence to other debts — that the statute simply defeats the remedy, but does not extinguish the debt; but as there are distinct remedies upon the debt, and the mortgage given to secure it,^* and the nature of the remedies depends upon the character of the respec- tive instruments, it vfould seem to follov? that, in the absence of an express statute to the contrary in those States where a dis- tinction is made between simple contracts and instruments under seal, the circumstance that the statute has run upon the one would not prevent or bar the remedy upon the other, upon which the statute has not rim;^' and, as we have before seen, except other special circumsta-noes that may be considered equivalent." Skinner V. Smith, 1 Day (Conn.) 127} Lock- wood V. tiockwood, id. 295; Jarvis v. Woodward, supra. In Maine, it is held that the right of redemption is not lost by lapse of time when the mortgagor retains pos- session for himself alone and not for the mortgagee; that while lapse of time may either bar the mortgagee's right to redeem or give rise to a pre- sumption of payment in his favor, yet, as both these facts cannot exist as to the same mortgage at the same time, the question which of them will prevail depends upon the posses- sion for the requisite lapse of time. Bird V. Keller, 77 Maine, 270, 273; Hemmen^y v. Lynde, 79 id. 299, 9 Atl. 620. In New York, where a mortgage is merely a personal secur- ity, and does not pass the fee, a tender need not- be made in order to extinguish the lien of a mortgage; the tender must be kept good, al- though it need not be kept good as between debtor and creditor when, upon payment, the debtor is entitled to the possession of his property. See Watkins v. Vrooman, 51 Hun (N. Y.) 175, 5 N. Y. Supp. 172; Nelson V. Loder, 55 Hun 173, 7 N. Y. Supp. 849; Exchange F. Ins. Co. v. Norris, 74 Hun 527, 26 N. Y. Supp. 823; Foster v. Mayer, 70> Hun 265, 24 N. Y. Supp. 46; 4 Kent Com. (14th Ed.) 188, and n. 1; McManaman v. Hich- ley, 82 Minn. 296, 84 N. W. 1018. 38. Lent v. Shear, 26 Cal. 361 ; Law v. Allen, 26 Cal. 141. 39. Hough v. Bailey, 32 Conn. 288; Heyer V. Pruyn, 7 Paige (N. Y.) Ch. 465, 34 Am. Dec. 355; Myer v. Beal, 5 Oreg. 130; Grain v. Paine, 58 Mass. (4 Gush.) 483. Sustaining this doctrine, see Hayes v. Frey, 54 Wis. 503; Whittington v. Flint, 51 Ark. 504, 51 Am. Rep. 573; Buckner v. Street, 15 Fed. 365; Nichols v. Briggs, 18 S. O. 473. In Hardin ,-. Boyd, 113 U. S. 765, 5 Sup. Ct. 771, 28 L. Ed. 1141, Harlan, J., says: "An action to recover the debt may be barred by limitation, yet the right to enforce the lien for purchase money may still exist." Ooldcleugh V. Johnson, 34 Ark. 312; Lewis v. 1044 Statutes of Limitation. where the statute expressly or by fair inference destroys the remedy upon the mortgage, at the same time that the remedy is destroyed as to the debt, it may be enforced after the statute has rxm upon the debt, unless the same statutory period is applicable to both. Thus, in California, no distinction exists between simple contracts and those under seal, but the statute rums upon all contracts, obligations, etc., founded upon an instrument of writing, except a judgment or decree, etc., in four years; and, as the courts do not regard a mortgage as a conveyance of real ''estate, they hold that when" the debt is barred, the mortgage is also extinguished, because, being a mere incident of the debt, it cannot exist independently of its principal, which is the debt. The same rule prevails in several of the new States, where the old theories relative to real estate and the effect of sealed instru- ments are not adopted to their full extent, as in lowa,^" Nevada,*'^ ISTebraska,*^ Texas,^^ Illinois,^* and Kansas ;*^ and such, indeed, Hawkins, 90 U. S. (23 Wall.) 119, 33 L. Ed. 113; Bimie v. Main, 29 Ark. 591; Cheney v. Cooper, 14 Neb. 415; Crook v. Gleiin, 30 Md. 55; Bird V. Keller, 77 Me. 270; Locke v. Caldwell, 91 111. 417; Chouteau v. Burlando, 20 Mo. 482; Elsberry v. Boykin, 65 Ala. 336; Mich. Ins. Co. V. Brown, 11 Mich. 365; Browne v. Browne, 17 Pla. 607, 35 Am. Rep. 97; M'cNair v. Lot, 34 Mo. 385; Arring- ton V. Liscom, 34 Cal. 365; Bizzell V. Nix, 60 Ala. 281; Waldo v. Hice, 14 Wis. 286; Lingan v. Henderson, 1 Bland (Md.) 236; Cheney v. Jana- sen, 20 Neb. 138; Edmands v. Tipton, 85 N. C. 459; Earnsbaw v. Stewart, 64 Md. 513; Christy v. Dana, 42 Oal. 174; Clough V. Rowe, 63 N. H. 563; Smith V. Woolfolk, 115 U. 8. 143, 5 Sup. Ct. 1177, 39 L. Ed. 357; Allen V. Early, 34 Ohio St. 97; Tryon v. Munson, 77 Pa. 250; Potter v. Stransky, 48 Wis. 335; Fuller v. Eddy, 49 Vt. 11; Fisk v. Stewart, 36 Minn. 365; Green v. Mizelle, 54 Miss. 330; Baltimore & Ohio R. R. Co. v, Trimble, 51 Md. 99; Cape Girardeau County V. Harbison, 58 Mo. 90; Wood V. Augustine, 61 Mo. 46. 40. Clinton County v. Cox, 37 Iowa 570; Green v. Turner, 38 id. 112; Gower v. Winchester, 33 id. 303. 41. Henry v. Confidence Gold M. Co., 1 Nev. 619. 42. Hurley v. Estes, 6 Neb. 386; Kyger v. Ryley, 2 Neb. 30. 43. Ross V. Mitchell, 28 Tex. 150; Duty V. Graham, 12 Tex. 437. 44. Hagan v. Parsons, 67 111. 170. But in this State a distinction exists between a sealed instrument and one not under seal; but as the debt is treated as the principal, and the mortgage as an incident, they both fall together, unless the mortgage contains a covenant for the payment of the debt, in which case the mort- MOETGAGOE AND MoETGAQEE. 1045 ■would seem to be the necessary rule -where this theory relative to the nature and effect of mortgages prevails. In some of the States, express limitations are provided as to the period within which an action for the enforcejpent or redemption of a mortgage must be brought. Thus, in New York,*^ it is provided that an action for the redemption of a mortgage, either with or without an account for rents and profits may be maintained, unless the mortgagee or those claiming under him have continuously main- tained an adverse possession of the premises for twenty years ;^^ and such a provision, in effect, exists in the New Jersey statute.^^ In Illinois,** it is provided that a mortgage shall be barred in ten years after a right of action accrued thereon. In Kentucky,^" the remedy of a mortgagor for the redemption of a mortgage is barred when the mortgagee, or any person claiming under him, has been in the continuous adverse possession of the premises for fifteen years. In Mississippi,^^ the right of redemption is barred in ten years, and the remedy upon the mortgage is barred when the debt is.^^ In Minnesota,^^ a remedy upon a mortgage is gage is not barred until the period has not assumed the mortgage. Mack for the limitation of sealed instru- v. Anderson, 165 N. Y. 529, 59 N. E. ments has expired. Harris v. Mills, 289. See also, M'urdook v. Water- 28 111. 44. man, 145 N. Y. 55, 39 N". E. 829, 37 45. Chick V. Willetts, 3 Kan. 384; L. R. A. 418; Boughton v. Van Valk- Schmucker v Sibert, 18 Kan. 104, 26 enburgh, 61 N. Y. S. 574, 46 App. Am. Rep. 765. Div. 352. In general, the agreement 46. Appendix, New York. of a mortgagor's vendee to assume 47. The New York Code of Civil the mortgage, when made before the Procedure, §§ 380, 381, limiting ac- note is barred by limitation, is a new tions upon sealed instruments to promise continuing the note. Dan- twenty years, applies to an action to iels v. Johnson, 129 Cal. 415, 61 Pac. foreclose a mortgage; and if a mort- 1107, 79 Am. St. Rep. 133. See Rob- gagor has paid nothing for twenty ertson v. Stuhlmiller, 93 Iowa 326, years on the mortgage debt, but cer- 61 N. W. 986. tain grantees of a part of the prem- 48. Appendix, New Jersey, ises, have assumed the debt, and 49. Appendix, Illinois. made payments thereon, this does not 50. Appendix, Kentucky, stop the running of limitations in 51. Appendix, Mississippi, favor of the grantee of another par- 52. Appendix, Mississippi. eel, who has paid nothing, and who 53. Appendix, Minnesota. 1046 Statutes of Limitation. barred in ten years after the cause of action accrued; and such, also, is the provision in North Carolina/^ both as to the foreclosure and redemption of a mortgage. ^^ In California, ^^ an action to redeem a mortgage is barred in ^ve years. In the other States, the period of limitations is made to depend upon the period requisite to bar an entry upon lands, or, in most of the new States and some of the old ones,^' upon the period provided for the limi- tation of actions upon contracts in writing, or of instruments under seal. In ISTew Hampshire, by statute,^^ the note is kept on foot as long as an action may be maintained upon the mortgage, which is twenty years from the time when the debt becomes due.^' In Pennsylvania and Wyoming, the period of limitation is twenty- one years, adopting, as is generally the case, the period re- quisite to bar a right of entry upon lands, and treating the mort- gage as a conveyance of land. In Maine, Khode Island, Mass- achusetts, New Jersey, New York, Georgia, Indiana, Delaware, South Carolina, Wisconsin, and Dakota, the mortgage is barred in twenty years from the time when the obligation it is given to secure matures. In Vermont, Connecticut, Kentucky, Virginia, and Kansas, the limitation is fifteen years. In Alabama, Iowa, Oregon, North Carolina, West Virginia, Texas, Nebraska, Mis- isouri, Minnesota, and New Mexico, ten years ; in Tennessee, Florida, and Utah, seven years ; in Colorado, six years ; in Arkan- sas, California, and Idaho, five years ; in Nevada, four years ; in Montana, three years. Where a creditor has an election of reme- dies for the same debt, one of which is barred and the other not, he may maintain an action on the one not barred. Thus, where a. note is given as collateral security for an account, an action may be maintained upon the note, although the statute has run aainst the account ^*' and the same rule prevails where there is a note and mortgage. The note may be barred, but an action to recover the 54. Appendix, North Carolina. 58. Appendix, New Hampshire. 55. Id. 59. Id. 56. Appendix, California. 60. Shipp v. Davis, 78 Ga. 201. 57. Rhode Island, Oregon. MOETGAGOR AND MoETGAGEE. 1047 amount secured by the mortgage may be maintained until the statute has run against that. § 224. When statute begins to run in favor of or against the mortgagor. The statute begins to run in favor of the mortgagor from the time when the mortgagee's right of action accrues against him, under the mortgage,^^ or, in other words, from the time of con- dition broken, so that the mortgagee may foreclose fully ;*^ and, as the proceedings are in rem, the fact that the defendant is out of the State during the whole period does not save the mort- gage from the operation of the statute.®^ When the mortgagee enters into the possession of the mortgaged premises for condi- tion broken, the statute begins to run against the mortgagor from the time of such entry.^* But if the mortgagee enters under an 61. Nevitt V. Bacon, 32 Miss. 212. 62. Wilkinson v. Flowers, 37 Miss. S79, 75 Am. Dec. 78 ; Trayser v. Trus- tees, 39 Ind. 556; Hale v. Paxik, 10 W. Va. 145; Gladwyn. v. Hitchman, 3 Vem. 134; Gillett v. Balcom, 6 Barb. (N. Y.) 370. 63. Anderson v. Baxter, 4 Oreg. 105. 64. Bailey v. Carter, 42 N. C. (7 Ired. Eq.) 282; Montgomery v. Chad- wick, 7 Iowa 114; Waldo v. Eioe, 14 Wis. 286; Hubbell v. Sibley, 50 N. Y. 468; Miner v. Beckman, 50 N. Y. 337; Peabody v. Roberte, 47 Barb. (N. Y.) 41; Knowlton v. Walker, 13 Wis. 264. In Massachusetts the possession of the mortgaged premises by the mort- gagor, and those claiming under him, for more than twenty years after the debt has matured, and without any recognition thereof, affords presump- tive proof of pa.ymcnt. Kellogg v. Dickinson, 147 Mass. 432, 18 N. E. 223, 437, 1 L. R. A. 346, and note. And after an entry of foreclosure, the mortgagor and those claiming un- der him become tenants at sufferance of the mortgagee, and during the next three years they are assumed to hold under him, in the absence of any evidence of an adverse holding. Cunningham v. Davis, 175 Mass. 213, 222, 56 N. E. 2. In Massachusetts it is settled in favor of the mortgagor that the day of the entry to foreclose is to be excluded from the statutory three years, while the mortgagee ia not allowed the corresponding bene- fit with regard to the last day. Jager v. Vollinger, 174 Mass. 521, 523, 55 N. E. 458. In Missouri, it is held that, in or- der to bar a foreclosure, there must have been, for the required period, an. adverse possession of the property; tliat the relation of the mortgagor and mortgagee, being in its inception friendly, as created by their volun- 1049 Statutes of Limitation. agreement expressed in the mortgage, or entered into sub- sequently, that he shall take possession and reimburse himself the mortgage debt from the rents and profits, the statute does not begin to rim against the mortgagor until the debt is fully sat- isfied from such rents and profits, or he asserts title in him- self, and gives the mortgagor distinct notice thereof.^^ But if the agteement is that the mortgagee shall enter and have the rents and profits for a distinct or definite period, the' statute will not begin to run against the mortgagor until such period has elapsed;^" as in such case a court of equity would restrain the mortgagor from setting up a legal title to the land in himself, or from disturbing the mortgagee in his possession until the debt is satisfied."'' When a mortgage is payable by installments, the stat- ute attaches to each installment as it becomes due, but the mort- gagor's possession does not become adverse until the last in- stallment has matured.^* Nothing short of actual possession by the mortgagee, continued for the entire statutory period, without recognition of the right of the mortgagor to redeem, will operate to convert his estate into an absolute title in equity,*' and mere constructive possession is not sufficient j™ nor is payment of taxes taty contract, is presumed so to con- In England, as to the effect of the tinue until the mortgagor by his axjts statute 1 Vict., c. 38, by which a pay- or declarations repudiates the mort- ment of interest upon a mortgage gage, of which the mortgagee must gives a new starting point for the- have notice enough, at least, to put running of limitation against a mort- him upon inquiry. Eyermann v. gagee out of possession, see t Law Piron, 151 Mo. 107, 117, 52 S. W. Quarterly Rev. 43. 229. Also, that a grantee of a mort- 65. Frink v. Le Roy, 49 Cal. 315 i gagor with constructive notice of the Anding v. Davis, 38 Miss. 574. mortgage is in no better situation 66. Frink v. Le Roy, supra. than his grantor, and can only avail 67. Id. of the presumption of payment from 68. Parker v. Banks, 79 N. C. 480. lapse of time when the mortgagor 69. Miner v. Beekman, 50 N. Y. could do so, under the same circum- 337; Demarest v. Wynkoop, 3 Johns. stances. Ibid; Lewis v. Schwenn, 93 (N. Y.) Ch. 129. Mo. 26, 2 S. W. 391, 3 Am. St. Rep. 70. Slee v. Manhattan, 1 Paige (N. 611. Y.) Ch. 48; Moore v. Cable, 1 Johns. (N. Y.) Ch. 385. MOETGAGOE AITD MoETGAGEE. 1049 for the statutory period, without actual possession, enough to cut off the mortgagor's right to redeem;'^ and the rule is not varied by the circumstance that the lands are wild and uncleared.''* Where a right to redeem is not cut off by foreclosure proceedings, it seems that the statute does not begin to run in favor of the purchaser until the expiration of the period fixed in the decree for redemption.''^ § 225. Right of redemption barred, when. When a mortgagee has been in possession of mortgaged premises after condition broken, for the period requisite to acquire a title to lands by adverse possession, without the payment to him of any part of the principal or interest due upon the mortgage, in the ab- sence of any statute fixing the period within which the mortgagor may redeem, courts of equity, acting in analogy to the statute, treat the lapse of such period as ■prima facie a bar to his right to redeem,''* unless the mortgagor or those claiming under him, dur- ing that period, were under some of the disabilities specified in the statute as suspending the statute, in which case proper allow- ance is made therefor,''^ which, in the absence of any provision in the statute itself, is usually ten years after the removing of such disabilities in analogy to the Stat. 21 James 1.-^^ but if the statute makes specific provision as to the period within which 71. Bollinger ^. Chouteau, 20 Mo. ilieh. 392; Slee v. Manhattan Co., 1 89. Paige (N. Y.) Ch. 48; Hall v. 72. Moore v. Cable, supra. Denckla, 38 Ark. 506; Phillips v. 73. Rockwell v. Servant, 63 111. Sinclair, 30 Me. 269; Slicer v. Bank 424. of Pittsburg, 57 U. S. (16 How.) 571, 74. Barron v. Martin, 19 Ves. 397; 14 L. Ed. 1063; Knowlton v. Walker, Crawford v. Taylor, 42 Iowa 260; 13 Wis. 264; Gunn v. Brantley, 21 Robinson v. Fife, 3 Ohio St. 551; De- Ala. 633. marest v. Wynkoop, 3 Johns. (N. Y.) 75. Price v. Copner, 1 S. & S. 347; Ch. 129; Blake v. Foster, 2 B. & B. Beekford v. Wade, 17 Ves. 87; White 403; Montgomery v. Chadwick, 7 v. Ewer, 2 Vent. 340; Demarest v. Iowa 114; Howland v. Shultleff, 42 Wynkoop, supra. Mass. (2 Mete.) 26, 35 Am. Dec. 384; 7G. Lamar v. Jones, 3 H. & McH. Dexter v. Arnold, 1 Sumner (U. S.) (Md.) 328. 109; Hoffman Y. Harrington, 33 1050 Statutes of Limitation. action may be brought after tbe removal of such disabilities, such statutory period would be adopted. As we have already seen in New York, New Jersey, Mississippi, Minnesota, and North Carolina, by statute, the right of redemption is barred in ten 5 years, in Kentucky in fifteen, and in California, in five years. In 'j all the other States the right is left subject to the common-law rules which have grown up under the statutes. But, as has been stated, this bar is only prima facie, and in order to be operative the mortgagee's possession must have been adverse during the ' respective periods;'^ and if his possession is consistent with the rights of the mortgagor, this prima facie bar does not attach,''* as, if he recognizes the mortgagor's right to redeem by accept- ing a part payment of the principal or interest upon the mort- ■ gage,'^ or recognizing such right, by acknowledging the mortgagee as such, and the commencement of foreclosure proceedings, either under a statute or in equity, is sufficient to let the mortgagor in to redeem;^" or, indeed, any acknowledgment in writing sufficient to take an ordinary debt out of the operation of the statute would be sufficient;*^ but a mere parol acknowledgment would not be sufficient, as now in nearly all the States and territories of this country except those previously named, as in England, an acknowledgment of a debt to be sufficient must be in writing, signed by the person to be charged. Where there are two or more mortgagees, all must sign the acknowledgment, as only those who do sign will be bound thereby*^ in those States wherg pro- 77. Hyde v. Dallaway, 3 Hare, 528. 79. Knowlton v. Walker, supra. 78. Wallen v. Hufi', 24 Tenn. (5 80. Calkins v. Ishell, 20 N. Y. Humph.) 91; Rockwell v. Servant, 64 147; Jackson v. Slater, 5 Wend. (N. 111. 424; Waldo v. Eice, 14 Wis. 286 Humphrey v. Hurd, 26 Mich. 44 Crawford v. Taylor, 43 Iowa 260 Y. ) 295; Eobinson v. Fife, supra; Cutts V. York Mfg. Co., 18 Me. 140; Jackson v. De Lancey, 11 Johns. (N. Yarbrough v. Newell, 18 Tenn. (10 Y.) 365. Yerg.) 376; Quint v. Little, 4 Me. 81. Stansfield v. Hobson, 3 De G. 495; ICohlheim v. Harrison, 34 Miss. M. & G. 620; Price v. Cover, 1 S. & S. 457; Frink v. Le Roy, 49 Gal. 315; 347; Lake v. Thomas, 3 Ves. 17. Teulon v. Curtis, 1 Younge, 610; 82. Richardson v. Y^oung, L. R. 1ft Morgan v. Morgan, 10 Ga. 297; Eq. Cas. 275. Knowlton v. Walker, 13 Wis. 264. MOETGAGOE AND MoETGAGEE. 1051 vision is made that the acknowledgment of one joint contractor, etc., shall not be binding upon the others. The acknowledgment, to be operative, must be made by and to the proper party. It is not the naked possession, but the nature of it, which de- termines his right.^ The possession must not only be adverse, but it must also be actual ; and mere constructive possession will not avail,** nor will an occasional occupation be sufficient. It must be continuous and without interruption, and adverse to the mortgagor's right to redeem. Payment of taxes on wild land of itself does not amount to a possessory act,*^ but accompanied with actual possessory acts, such as the premises are susceptible of, and which constitute a badge of ownership, it would doubtless be held sufficient. § 226. When mortgagor is in possession of a part of the premises. When the mortgagor is in possession of a part of the premises, and the mortgagee is in possession of the other part, it seems that no length of time will bar the mortgagor's right to redeem, because, 80 long as the right to redeem any part of the estate remains, it exists as to the whole under the rule that, except in special in- stances, there can be no redemption of separate parts of the mort- gaged estate,*^ and the same rule prevails when the mortgagor is constructively in possession.*'' § 227. Liability of mortgagee in possession. If a bill to redeem is brought by a mortgagor before the mort- gagee has been in possession for the period requisite to bar the mortgagor's right, he will be compelled to account for the rents 83. Reynolds v. Green, 10 Mich. 86. Rsikestraw v. Brewer, Sel. Cas. 355 ; Robinson v. Fife, 3 Ohio St. temp. King, 55 ; Burke v. Lynch, 2 B, 551; Blethen v. Dwinal, 35 Me. 556; & B. 426. But see Lake v. Thomas, Hurd V. Coleman, 42 Me. 182. 3 Ves. 17. 84. Milner v. Beekmaji, 50 N. Y. 87. Arehbold v. Scully, 9 H. L. 337. 360; Drummond v. Sant, L. R. 6 Q. 85. Bollinger v. Chouteau, 20 Mo. B. 763. 89. 1052 Statutes of Limitation. and profits of the estate during his occupancy. He is not obliged to lay out money any further than to keep the estate in necessary re- pair ; biit on a bill to redeem he will be made to account for all loss and damage occasioned by his gross negligence in respect of bad cultivation and non-repair.** He will also be charged, not only for all rents received, but also for all rents which but for his willful neglect or default he might have received.*' A mortgagee in pos- session has been held not chargeable as for willful default in declining to defend an action of replevin brought by the owner of goods distrained on the premises by such mortgagee.'" If he has expended any sum in supporting the right of the mortgagor to the estate, where his title has been impeached, the mortgagee may certainly add that to the principal of his debt; and it shall carry interest. Where a mortgagee has been put to expense In defending the title to the estate, the defense being for the benefit of all parties interested, he is entitled to charge such expenses against the estate; but if his title to the mortgage only is dis- puted, the costs of his defense should not be borne by the estate as against parties interested in the equity of redemption, unless they can be shown to have concurred or assisted in the litigation.'^ If the estate lies at such a distance that the mortgagee must employ an agent to collect the rents, what he pays to the agent shall be allowed; but not where he does or may receive the rents himself. It is the settled practice in the Court of Chancery not to take an account against a mortgagee in possession with annual rests, where, at the time of his entering into possession, there is an arrear of interest.'^ A mortgagee of leaseholds may take pos- session, even where there is no arrear of interest due, under cir- cumstances which may not render him liable to account with annual rests ; as where he enters in order to prevent a forfeiture 88. Wragg v. Denham, 2 Y. & C. 90. Cocka v. Gray, 1 Giff. 77. 117; Fisher, §§ 901-909; Wood's 91. Parker v. Watkina, 1 Johjia. Landlord & Tenant, 198-199. 133. 89. Fisher, §§ 873, 894, 895; Bran- 92. Nelson v. Booth, 3 De G. & J. don V. Brandon, 10 W. R. 287. 119. ^ MOETGAGOE AND MoETGAGEE. 1053 for non-payment of ground-rent or for non-insurance.®* The Court of Chancery -will not suffer, in a deed of mortgage, any stipulation to prevail, that the estate should become an absolute purchase in the mortgagee upon any event whatsoever.'* A court of common law has no power to compel a reconveyance of a mortgaged estate after payment of the mortgage debt, interest, and costs.'^ The statute does not run against the mortgagor's right to have an account, until his right to redeem is lost. § 228. Welsh mortgages. Welsh mortgages are effected by a conveyance of property to a mortgagee, coupled with occupation by him on the understanding that he is to pay himself the interest of the money lent by re- ceiving the profits of the land. The land may be redeemed at any time on repayment by the mortgagor of the money lent ; and the mortgagee cannot foreclose,®* though now equity would prob- ably compel an account against the mortgagee.®^ The reason for this is, that the receipt of the rents and profits in reduction of the debt operates as a constant renewal of the mortgage.®^ If a mort- gagee after repayment of the mortgage debt continues to hold the property twenty years, the mortgagor will, it appears, be barred his right to recover it.®® Any arrangement for securing repayment of a loan by demise, or granting annuities possessing characteristics similar to those above mentioned, is considered in the nature of a Welsh mortgage.-^ When no time of payment is fixed, as is the case in this class of mortgages, it is perhaps true that a redemption will 93. Patch V. Wild, 30 Beav. 99. Lawley v. Hooper, 3 Atk. 280; Yates 94. Bonham v. Newxsomb, 1 Vern. v. Hambly, 2 id. 237. 8, 232; Toomes v. Conset, 3 Ark. 261; 97. Fulthrope v. Foster, 1 Vern. Vernon v. Bethell, 2 Eden 110; 477. Fisher, § 126; Powell on Mortgages, 98. Orde v. Heming, 1 Vern. 418; 116 a, note (H). Marks v. Pell, supra; Fenwick t. 95. Gorely v. Gorely, 1 H. & N. Reed, 1 Mer. 114. 144. 99. Fenwick v. Reed, 1 Mer. 119. 96. Talbot v. Braddil, 1 Vern. 395; 1. Teulon v. Curtis, 1 Younge, 610. 1054: Statutes of LiMiTATioir. be decreed at any time;^ but this right may be lost by a subse- quent agreement of the parties;^ so, too, by an express notice given by the mortgagee to the mortgagor that he claims adversely.'' § 229. Presumption of payment — Effect of part payment. Courts of equity, although not strictly bound by the statute of limitations, except in those States where express provision to that effect is made, nevertheless, as we have seen,^ usually adopt a period in analogy to the statute as sufficient to raise a presump- tion against the right sought to be enforced; and where it is sought to enforce a mortgage after the lapse of the statutory period, when the mortgagor has been in possession and there has been no payment thereon within that period, or express recog- nition of the rights of the mortgagee, the courts will presume that the debt has been paid and the mortgage lien satisfied;^ and this 2. Orde v. Heming, 1 Vern. 418; " Penwick v. Reed, 1 Mer. 114. 3. Hartpole v. Walsh, 5 Bro. P. C. 267. 4. Talbot V. Braddil, 1 Vern. 395; Yates V. Hambly, 3 Atk. 360; Alder- son V. White, 2 De G. & J. 97; Ix)nguet V. Scavven, 1 Ves. 403. 5. See Chap. VI., Equitable Ac- tions. 6. Eeynolds v. Green, 10 Mich. 355; Bacon v. Mclntire, 49 Mass. (8 Mete.) 87; Martin v. Bowker, 19 Vt. 536; Hoffman v. Harrington, 33 Mich. 393; Newcomb v. St. Peter's Church, 2'Sandf. (N. Y.) Ch. 636; Bonald v. Sims, 3 Ga. 383; McNair V. Lot, 34 Mo. 285. The possession of the mortgagor before condition broken is not hostile to that of the mortgagee, but after that event, if no payments are made upon the mortgage for the entire statutory period, the presumption that the mortgage has been satisfied is well sustained, although until the entire statutory period has elapsed the mortgagee is treated as construc- tively in possession. Atkinson v. Patterson, 46 Vt. 750; Doe v. Wil- liams, 5 Ad. & El. 291; Hall v. Doe, 5 B. & Aid. 687; Pitzer v. Burns, 7 W. Va. 63 ; Howland v. Shurtleff, 42 Mass. ( 2 Mete. ) 26, 35 Am. Dec. 384 ; Martin v. Jackson, 27 Pa. 504; Bates v. Conrow, 11 N. J. Eq. 137; Boyd V. Beck, 29 Ala. 703 ; Sheafe v, Gerry, 18 N. H. 345; Higginson v. Mein, 4 Cranch (TJ. S.) 415; Benson v. Stewart, 30 Miss. 49; Rotwrta v. Lit- tlefield, 48 Me. 61; Chick v. Rollins, 44 Me. 104; Inches v. Leonard, 13 Mass. 379 ; Drayton v. Marshall, Rice (S. C.) Eq. 373; Downs v. Sooy, 38 N. J. Eq. 55. And a less period than that fixed by the statute for barring similar rights at law will not be suf- ficient to raise a presumption of pay- ment Boon v. Pierpont, 28 N. J. Eq. 7. MOETGAGOE AND MoETGAGEE. 1055 furnishes a good defense to an action of ejectment or a bill to foreclose brought by the mortgagee.'' This presumption is not irrebuttable, but may be overcome by proof of a part payment of principal or interest, or a direct recognition of the mortgagee's rights, sufficient under the statute to amount to an acknowledg- ment,* which acknowledgment or recognition, in those States 7. Jackson v. Pratt, 10 Johns. (N. y.) 381; Jackson ex dem. People v. Wood, 12 Johns. (N. Y.) 243, 7 Am. Dee. 315; Howland v. Shurtleff, supra; Martin v. Bowker, 19 Vt. 536; Hughes V. Edwards, 33 U. S. (9 Wheat.) 498, 6 L. Ed. 142; Reynolds V. Green, 10 Mich. 355 ; Field v. Wil- son, 45 Ky. (6 B. Mon.) 479; Hoff- man V. Harrington, 33 Mich. 892; Wilkinson v. Flowers, 37 Miss. 579, 75 Am. Dec. 7«; McNair v. Lot, 34 , Mo. 285. 8. Jarvis v. Albro. 67 Me. 310. And where the mortgagee is in pos- session, the mortgagor may avail himself of a part payment to save the statute as against him. ford v. Ager, 2 H. & C. 279 ; Palmer v. Eyre, 17 Q. B. 366. This presumption may be overcome by circumstances which fairly overthrow it. Snavely v. Pickle, 29 Gratt. (Va.) 37; Brobst v. Brock, 77 U. iS. (10 Wall.) 519, 19 L. Ed. 1002; Leman v. Newham, 1 Ves. 51; Hale v. Pack, 10 W. Va. 145. Where a mortgage was exe- cuted, in 1706, to a resid-ent of Great Britain, who remained there, and never was in possession of the land mortgaged, au-d the mortgagor had, in 1741, devised the lands to his sons — hgld, that no presumption could arise that the mortgage had been satisfied, before the year 1780, in favor of a person with fifty years' exclusive possession, who did not de- rive his title under the mortgage. Owing V. Norwood, 3 Har. & J. (Md.) 96. When a mortgagor has retained possession of the mortgaged premises for more than twenty years after the execution of the mortgage, but has acknowledged the debt and paid in- terest upon it within twenty years there is no presumption that the debt is discharged. Howard v. Hildrebh, 18 N. H. 105; Wright v. Eaves, 10 Rich. (S. C.) Eq. 582. But unex- plained possession of mortgaged premises for less than twenty years by the mortgagor may be left to the jury in connection with the partial payments and other evidence, as tend- ing to show that the debt was fully paid. Gould v. White, 26 N. H. 178. The retention of mortgaged property after the law-day has passed is not prima facie evidence of fraud, nor does it authorize a legal presumption of payment. Steele v. Adams, 21 Ala. 534; Clark v. Johnson, 5 Day (Conn.) 373. But a mortgage given to secure the title to land sold and conveyed will be presumed extinguished after a lapse of from thirty to fifty-six years, and the enjoyment of the land under the title conveyed. Murray v. Fishback, 44 Ky. (5 B. Mon.) 403; Inches v. Leonard, 13 Mass. 379. Mere lapse of time raises no presump- tion in favor of a stranger against the title of a mortgagee; and in this case the stranger was in adverse pos- 1056 Statutes of Limitation. where parol acknowledgments are ineffectual, must be in writ- ing and signed by the mortgagor; and if there are two of them both must sign it, or it will be ineffectual to bind the entire estate.' Mere silence on the part of the mortgagor, where de- mands for payment are made upon him by the mortgagee, does not of itself amount to such a recognition of the mortgagee's rights as will save the statute.'^* Any act of the mortgagor which operates to keep the mortgage debt on foot, also operates to keep up the mortgage lien, as an acknowledgment of the debt by the mortgagor ^^ in the mode and with the formalities required by law. A part payment of principal or interest made by the mortgagor or his agent revives the mortgage, and gives it a new lease of validity from the date of such payment; and a payment by one of two or more mortgagors, while the mortgage is still operative, it seems, will keep up the right of entry against all.-^ But, in session at the commencement of the action. Appleton v. Edson, 8 Vt. 241. But as between the parties, the presumption of the payment of a mortgage becomes absolute aft«r the lapse of fifteen years, if there is no entry, or payment of interest; and being a presumption of law, it is in itself conclusive, unless encountered by distinct proof. Whitney v. French, 25 Vt. 663. 9. Richardson v. Younge, L. R. 6 Ch. 478. In Cheever v. Perley, 93 Mass. (11 Allen) 584, it was held that this presumption is not conclu- sive, but that, where parol evidence is relied upon to control it, it should clearly show some positi\'e act of un- equivocal recognition of the debt within th« statutory period. 10. Cheever v. Perley, 93 Mass. (11 Allen) 584. 11. See Hough v. Bailey, 33 Conn. 289; Hart v. Boyd, 54 Miss. 547. 12. Pears v. Laing, L. R. 12 Eq. Cas. 41; Roddam v. Morley, 1 De G. & J. 1. Payments of interest made by tenant for life have been held sufficient as against the remainder- man. Toft V. Steph^nsonj 1 De G. M. & G. 28 ; Pears v. Laing, L, R. 13 Eq. 51; Roddam v. Morley, supra. So a payment by the mortgagor's solicitor. Ward v. Carter, L. R. 1 Eq. 29. But in order to make a pay- ment by a person other than the mortgagor operative to ke«p the mortgage on foot, either express au- thority must be established, or the payment must be made by a person so situated in reference to the prop- erty and the mortgagor that the law will imply authority. Cthinnery v. Evans, 11 H. L. Cas. 115. On a, testatof's simple or mortgage contract debt carrying interest, pay- ment of the interest by a devisee for life so acknowledges the debt as to keep alive the right of action against the remaindermen. In re Hollin^- MoitTGAGOE AND MoETGAGEE. 1057 order to have that effect, the payment must be made while the mortgagor owns the equity of redemption, and a payment made after he has parted with the same does not revive or keep on foot the mortgage security, as, from the time when he parts with his interest in the land, his power to bind it in any manner is gone, either as to past or future debts. The payment of interest on a mortgage debt by the mortgagor repels the presumption of payment arising from the lapse of time.^^ § 230. Effect of acknowledgment or new promise upon the mort- gage. So long as the debt which a mortgage is given to secure is kept on foot, the mortgage lien remains in full force. There- fore, any acknowledgment or promise of the debtor sufficient to prevent the statute from running against the debt, equally prevents the statute from running upon the mortgage;^* and, as we have seen, such also is the effect of a part payment, either of principal or interest made upon the mortgage.-'^ But where the rights of subsequent mortgagees intervene, or where the mort- gagor has sold the premises, an acknowledgment or payment af- terwards made by the mortgagor after the statute bar has become head, 37 Oh. D. 651; Barclay v. it. Wood v. Goodfellow, 43 Oal. 185; Owen, 60 L. T. 230, 222. Sichele v. Carrillo, 43 Cal. 493; Lent 13. Hughes V. Blackwell, €9 N. C. v. Shear, 26 Cal. 361; Barber v. (6 Jones Eq.) 73; Howard v. Hild- Babel, 36 Cal. 11. But this doctrine, reth, 18 N. H. 105; Wright v. Eaves, so far as the mortgagor's power to 10 Rich. (S. 0.) Eq. 582. suspend the running of the statute is 14. Hart v. Boyd, 54 Miss. 547. concerned, does not find any support See Ch-eever v. Perley, 93 !Mass. (11 in the courts of other States. Wat- Allen) 584;- Jarvis v. Albro, 67 Me. erson v. Kirkwood, 17 Kan. 9; Cliu- 310, as to the effect of acknowledg- ton Co. v. Cox, 37 Iowa 570. ment in repelling presumption of pay- 15. Eoddam v. Morley, 1 De G. & ment. In California, it is held that J. 1; Pears v. Laing, L. R. 13 Eq. "after the rights of third parties have 51; Hough v. Bailey, 32 Conn. 288; intervened, the mortgagor cannot, by Ayres v. Waite, 64 Mass. (10 Cush.) any act of his, either suspend the 72; Baton v. Mclntire, 49 Mass. (8 running of the statute, or revive the Met.) 87; Clinton Co. v. Cox, 37 debt after the statute has run upon Iowa 570. 67 1058 Statutes of Limitation. complete, does not revive the mortgage so as to defeat any of the rights of such subsequent mortgagee or grantee.-'® But so far as his own interests are concerned he may revive the mortgage hy such acts, but not so as to impair or defeat the rights of other parties who, previous to such acts, acquired an interest in the premises.^' Where a subsequent grantee or mortgagee agrees to pay the mortgage, and the mortgagor, either by suit or otherwise, insists upon his performance of this contract, a payment of either principal or interest made by such grantee or mortgagee upon the mortgage, will keep it on foot not only as against him, but also as against his grantor or mortgagor.^^ It seems that, when the statute has run upon a prior mortgage, the holder of a subse- quent mortgage is entitled to have the prior mortgage cancelled as against a mortgagee out of possession, and a court of equity, upon proper proceedings to that end, will direct its cancellation on the ground of such bar.''^ § 231. Effect of fraud on part of mortgagee. When the mortgagee has been guilty of fraud, either at the time the mortgage was made or subsequently, which has prevented the mortgagor from redeeming, a court of equity will let the mortgagor in to redeem, although more than the statutory period has elapsed since the mortgagee went into possession.^ In an English case ^^ the mortgage contained a provision that it should be redeemed with the mortgagor's own money. The court held that the -^Fords signified nothing where the money was to be repaid, " for the 16. New York Life Ins. & Trust 20. In Reigal v. Wood, 1 Johns. Co. V. Covert, 29 Barb. (N. Y.) 435, (N. Y.) Cli. 403, this rule was ap- reversed 3 Abb. Dec. (N. Y.) 350, 6 plied in a case where a judgement was Abb. Prac. (U. S.) 154. revived by fraud and im(position. 17. Schmucker v. Siibert, 18 Kjan. Rakestraw v. Brewer, Sel. Cas. 104, 36 Am. Rep. 765. temp. King, 55; Marks v. Pell, 1 18. Cucullu V. Hemaixdez, 103 U. Johns. (N. Y.) Ch. 594. S. 105, 26 L. Ed. 322. 21. Ord v. Sm^th, Sel. Ch. temp.. 19. Fox v. Blossom, 17 Blatohf. King, 9. (U. S. C. C.) 35a. MOETGAGOE AND MoETGAGEE. 1059 torrower being necessitated, and so under the lender's power, the law makes a benign construction in his favor," and the imposition of such terms was held to amount to a fraud in its creation, and therefore that the mortgage was redeemable at any time. § 232. Distinction between equitable lien for purchase-money and mortgage. While the statute does not, run upon a mortgage until the lapse of the period requisite to bar an entry upon lands, yet it is held in New York and Mississippi that an equitable lien in favor of the vendor of land for the purchase money is barred when the debt itself is barred.^^ " There is," says Bowen, J.,^^ " a material dis- tinction between a mortgage and an equitable lien for the pur- chase price of land given by law, and also between an action to foreclose a mortgage and one to enforce a lien." A lien created by law must coexist with the debt, and cannot survive it.^* In the case last cited it was held that, while a vendor's lien has the in- cidents of, it is not a mortgage, but consists solely in debt, and must be subject to all the incidents of the debt, and cannot be enforced when the debt cannot be, and therefore that, when a purchase-money note is barred by the statute, the remedy to enforce the equitable lien is also barred. " It is," say the court, " a secret equity, and is not recognized as against the rights of a purchaser from the vendee without notice." "^ Upon principle and the weight of authority, the fact that the debt is barred appears not to destroy 22. Trotter v. Erwin, 27 Miss. 772; is presumed not to have been paid iin- Littlejohn v. Gordon, 32 Miss. 235. til the expiration of twenty years 23. Borst V. Corey, 15 N. Y. 505. after it becomes due and payable. 24. Borst V. Corey, supra; Trotter The six years' limitation has no ap- X. Erwin, supra. plication to a mortgage. * ♦ ♦ 25. In Borst v. Corey, supra, the The equitable lien is neither created court say: "The action to foreclose nor evidenced by deed, but arises by a mortgage is brought upon an in- operation of law, and is of no higher strument under seal which acknowl- nature than the debt which it se- edges the existence of the debt to se- cures. It must coexist with the debt, cure which the mortgage is given; and cannot survive it." and by reason of the seal the debt 1060 Statutes of Limitation. the lien which the law gives to the vendor of lands for the pur- chase money, but it remains liable to be enforced in equity, until the lapse of such a period as, by the statutes of the State, is requisite to give a title by possession. This doctrine is sustained by the courts of Maryland,^* Virginia,^'' Connecticut,^* and Ala- bama.^ 26. Magnider v. Peter, 11 G. & J. (Md.) 217. 27. Lingan v. Henderson, 1 Bland (Md.) 236, 282; Hopkins v. Coek- erell, 2 Gratt. (Va.) 88. 28. In this State the question was not directly passed upon, but the rule stated in the case sustains the gen- eral doctrine announced in the text. Belknap v. Gleason, 11 Conn. 160. 89. Driver v. Hudspeth, 16 Ala. 348; Relfe v. Eelfe, 34 Ala. 500. In Bizzell V. Nix, 60 id. 281, 31 Am. Hep. 38, a bill was brought to enforce a vendor's lien for the unpaid pur- chase money of land. The statute had run against the notes given there- for, and as a consequence it was in- sisted that the lien was' destroyed. But the court held otherwise, Brickell, C. J., saying: "The au- thorities, which doubtless induced the decree of the Chancellor, and which are now relied on to support it, are Driver v. Hudspeth, 16 Ala. 348, and Relfe V. Relfe, 34 Ala. 500. The first was a proceeding under the statute then in force in the Orphans' Court, at the instance of a vendee holding a bond for title, to compel the personal representatives of the vendor, who had died, to make him title. The purchase money had not been paid, but an action at law on the notes given for it was barred by the stat- ute of limitations. It was held that a vendor retaining the legal titles, and entering into bond for its con- veyance only on payment of the pur- chase money, had a lien in the nature of a mortgage; that this lien the court would not divest until the pur- chase money was paid, and that it was not impaired, because an action at law for the recovery of the pur- chase money was barred by the stat- ute of limitations. The court say: ' The fact that the notes were barred by the statute of limitations does' not destroy the lien, which is regarded in the nature of a mortgage. If the vendor whose notes are barred, or his heirs after his death, should bring ejectment to recover the land, and thus drive the purchaser into a court of equity to enjoin the action, it is clear to my mind that the Court of Chancery would not interfere un- til he had paid up the purchase money, the remedy to recover which, at law, had been barred by the stat- ute of limitations. The court of equity would not decree a specific performance in favor of one who withholds the compensation he stipu- lated to pay, upon the ground that the legal remedy to recover it is barred. The vendor is not bound to sue upon his note, but may rest upon the security furnished by his lien.' The contract of sale, in Relfe v. Eelfe, was by parol, and, so far as is shown by the report of the case, the vendor had not conveyed. It was held that MOETGAGOE AND MoETGAQEE. 1061 § 233. Distinction between a pledge and a mortgage — Difference in application of statute to the one and the other. A wide distinction exists between a pledge of personal property and a transaction that amounts to a mortgage thereof. Thus, where property is deposited as collateral security with a creditor, with no understanding or agreement that he may sell the same and apply the proceeds in liquidation of the debt, it is a pledge merely, and the title to the property remains in the pledgor until he is divested thereof by due process of law; but where property is the lien for the payment of the pur- chase money was not lost or de- stroyed, because the statute of limi- tations had operated a bar for its re- covery in an action at law. It was further held that the lien could not be regarded as a stale demand within less than twenty years after the sale. It is said by the court : ' The prin- ciple which preserves liens, notwith- standing the bar of the debt, is neither confined to those secured by a oonveyanoe, as for example a mort- gage, nor to those secured by a sealed instrument, nor even to those pro- vided by an express contract.' Again: ' The principle is, the statute of limi- tations does not extinguish the debt, but merely bars the remedy by action at law, and there is no inconsistency in the prosecution of another remedy after the action at law is barred.' The court was referred to the New York and Mississippi decisions, to which the appellant now refers, and declined to follow them, ' These de- cisions are not correct expositions of the law.' We are not inclined to de- part from these decisions. The gen- eral principle, that when the security for a debt is a lien on property, per- sonal or real, the lien is not impaired, because the remedy at law for the recovery of the debt is barred, is not, as is very emphatically and clearly stated in Relfe v. Kelfe, confined to liens created by contract, or by in- stmments under seal, or by mort- gages which convey a legal estate and confer a right of entry. The d«bt is not extinguished, though the stat- ute of limitations may have barred legal remedies for its recovery. The bar of the statute may be removed by a subsequent promise or acknowl- edgment which is supported by the debt as a consideration, and the con- sideration rests on the moral ob- ligation to pay, which statutes can- not obscure or impair. Cook v. Bramel (Ky.), 45 L. R. A. 212. The debt not being extinguished, the lien for its security remains, and though legal remedies are barred, the equit- able remedy to enforce the security is unafl'ected. ' It is not necessary fur- ther to pursue a discussion of the question. We cannot regard it as res integra. The discussion was ex- hausted, and is foreclosed by the de- cisions to which we have referred, and on their authority we are con- tent to rest." See Higgins v. Scott, 2 B. & Ad. 413; Spears v. Hartley, 3 Eap.^ 81; Hopkins v. Cockerell, 2 Gratt. (Va.) 68. 1062 Statutes of LaMiTATiow. deposited with a creditor to be sold, and tlie proceeds applied in discharge of the debt, the transaction amounts to a mortgage, and the title to the property vests in the creditor. The distinction, as far as the operation of the statute is concerned, is, that in the former case the statute does not begin to run against the pledgor tmtil he has paid or offered to pay the debt, while in the latter case the statute begins to run against the debtor's right to re- deem at once upon the maturity of the debt, and is fully barred by the lapse of the statutory period requisite to bar the debt it was given to secure.'" 30. Huntington v. Mather, 2 Barb. (N. Y.) 538. Edmonds, J., who de- livered the opinion of the court, said: " It seemed to be conceded on the argument that unless the original transaction between these parties was a, pledge of the stock in question, the plaintiff's bill could not be sustained; and therefore it was that so much of the argument was directed to that point. One consideration very strenu- ously urged was the expression used in the note that the stock had been ' deposited as collateral security,' which it was insisted conveyed the idea of a pledge, and that alone. But such an expression is not of itself sufficient to determine the character of the transaction; for it has been held that even the use of the word ' pledge ' has not that efTect, ex m termini; and where it is the clear in- tent of the parties that the possession of the goods, etc., shall remain in the debtor until default in payment, it will be regarded as a mortgage, even if the word ' pledge ' is used. Lang- don V. Buel, 9 Wend. (N. Y.) 80; Eeeves v. <3apper, 5 Bing. N. C. 136; Ferguson v. Union Furnace Co., 9 Wend. {N. Y.) 345. " There are two leading considera- tions to be regarded in determining whether the transaction is a pledge or a mortgage; namely, the title and the possession. If it ia a mortgage, the legal title passes to and is ves- ted in the creditor. Story on Bailm., § 387; Langdon v. Buel, supra; Patchen v. Pierce, 12 Wend. (N. Y.) 61. With a pledge it is different; the legal title, until a sale on default of payment or redemption, continuing in the pledgor. Story on Bailm., supra; Cortolyou v. Lansing, 2 Caines Cas. (N." Y.) 200. The paw- nee has indeed a qualified property in the article pledged, but upon a tender to him of the debt he becomes di- vested even of that quali^ed prop- erty, and becomes a wrong-doer if after that, he persists in retaining the article pledged, from the pawnor. Story on Bailm., §§ 339, 341; Coggs V. Bernard, 2 Ld. Raym. 916. The essential difference as to matter of right is, that the title passes, and in the other it does not. But the differ- ence in substance and fact is, that in the case of a pawn or pledge the pos- session must pass out of the pawnor, but in the case of a mortgage it need not. In this case the possession and title both passed out of the debtor." MOETGAGOE AND MORTGAGEE. 1063 § 234. Discharge of mortgage debt, effect of. As a general rule, the discharge of the debt which a mortgage is given to secure operates as a discharge of the mortgage; but this rule does not apply where the personal liability of the mortgagor merely is discharged, without intending to extinguish the debt,^^ nor does it apply where the debt is merely barred by the statute of limitations.^^ § 235. Mortgagee in possession. Where a mortgagee is in possession of the premises for the full statutory period after condition broken, the mortgagor's right of redemption is forever barred, unless within that period the mortgagee has accepted from him some portion of the principal or interest of the mortgage debt, or in some other legally effectual way acknowledged the right of the mortgagor to redeem. This may be done by settling the account of the rents and profits of the premises within that period, as the principal objection urged by courts of equity against letting the mortgagor in to redeem after that period is the difficulty of settling the accounts between the parties for so long a period; and where this objection is obviated by a settlement made by the parties themselves, the mortgagor will be admitted to redeem partly upon that ground, and partly upon the ground that such settlement operates as an admission of the mort- gagor's right. Thus, in an English case,^ a mortgage was held to 31. Donnelly v. Simonton, 13 Minn. lesy v. Jackson, 66 111. 139; Mont- 301. See Hayden v. Smith, 53 Mass. gomery v. Chadwiek, 7 Iowa 114; (13 Met.) 511. Crawford v. Taylor, 43 id. 260; Rob- 32. Chamberlain v. Meeder, 16 N. erts v. Littlefield, 48 Me. 61; Hertle H. 381; Bush V. Cooper, 36 Miss. 599. v. McDonald, 3 Mid. Oh. 128; Crook 33. Conway v. Shrimpton, 5 Bro. v. Glenn, 30 Md. 55; Stevens v. Ded- P. C. 187 ; Blake v. Foster, 3 B. & B. ham Inst., 129 Mass. 547 ; Reynolds 387; Chapman v. Corpe, 41 L. T. N. v. Green, 10 Mioh. 355; Hoffman v. S. 23; Guthrie v. Field, 31 Ark. 379; Harrington, 38 id. 392; McNair v. Gunn V. Brantley, 21 Ala. 633; Ar- Lot, 34 Mo. 285; Tripe v. Marcy, 39 rington v. Liscom, 34 Cal. 366; Tay- N. H. 439; Miner v. Beekman, 50 N. lor V. McCTain, 60 Cal. 651, 64 id. Y. 337; Bailey v. Carter, 43 N. C. 513; Bunce v. Wolcott, 2 Conn. 37; (7 Ired. Eq.) 383; Yarbrough v. Ne- Morgan v. Morgan, 10 Ga. 397; Hal- well, 18 Tenn. (10 Yerg.) 376; 1064 Statutes of Ltmitation. be redeemable where the mortgagee had been in possession for forty years, upon the foot of a stated accoimt and an agreement for turning interest into principal.'* Any act of the mortgagee by which he acknowledges the trans- action to be still a mortgage, any time within twenty years before a bill to redeem is brought, is held sufficient to keep the mort- gagor's right to redeem on foot. Thus, if the mortgagee, in his will, disposes of the money " in case the mortgage is redeemed," ^ or by any other deliberate acts admits that he is mortgagee as to the estate, a bill to redeem will lief^ or where the mortgagee enters under an agreement to reimburse himself out of the pro- fits.^' Before the statutes required acknowledgments to be in writ- Knowlton v. Walker, 13 Wis. 364; Ross V. Norvell, 1 Wash. (Va.) 14; Hughes y. Edwards, 22 U. S. (9 Wheat.) 489, 6 L. Ed. 142; Fox v. Blossom, 17 Blachf. (U. S. C. C.) 353; Amory v. Lawrence, 3 CliflF (U. S. C. C.) 533; see Doe v. De Veber, 3 Allen (N. B.) 23; Miner v. Beek- man, 14 Abb. Pr. N". S. (N. Y.) 1; Hammonds v. Hopkins, 11 Tenn. (3 Yerg.) 525; Wood v. Jones, 19 Tenn. (Meigs) 513; Anding v. Davis, 38 Miss. 574. 34. Cholmondeley v. Clinton, 3 J. & W. 188; Giles v. Baremore, 5 Johns. (N. Y.) Gh. 545. In Proctor V. Cowper, 2 Vern. 377, a bill was brought to redeem a mortgage made in 1642. The mortgagee entered into possession in 1650, and there were three descents on the defendant's part and four on the part of the plaintiff; but the length of time being un- severed for the greatest portion of the time by infancy or coverture, and because the mortgagee, in 1686, brought a bill to foreclose, and an account was then made up by the mortgagee, the court decreed a re- demption and an account from the foot of the account in 1686. 35. Cruise's Digest, 156. See Hauselt v. Patterson, 134 N. Y. 349. 36. Perry v. Marston, 2 Bro. Oh. 397; Eoss v. Norvell, 1 Wash. (U. S. C. C.) 18; Marks v. Pell, 1 Johns. (N. Y.) Ch. 594; Whiting v. White, 2 Cox 290. A recognition of the mortgage incidently in any convey- ance or other instrument is sufficient. Pender v. Jones, 2 N. C. (2 Hayw.) 294; Price v. Copner, 1 S. & S. 347; Hansard v. Harvey, 18 Ves. 455; Con- way v. Shrimpton, supra; Ord v. Smith Sel. Cas. temp. King, 9; Hodle V. Healey, 1 V. & B. 536; Ver- non V. Bethell, 3 Eden 110; Elmen- dorf V. Taylor, 23 V. S. (10 Wheat.) 153, 6 L. Ed. 289. See Turlock v. Eoby, 12 Scott, 87; Lucas v. Denni- son, 7 Jur. 1122. 37. Marks v. Pell, supra. Acknowl- edgments by a mortgagee in posses- sion have been held sufficient to re- move the statute bar in numerous cases, as stating an account of the rents and profits of the land. Barron V. Martin, Cooper's Ch. 189; Palmer MOETGAGOE ATTD MORTGAGEE. 1065 ig, it was seriously questioned whether any form of parol acknowl- igment would be sufficient, and in an early case in this country.'^ tory, J., in a very able opinion in which he carefully reviewed le cases, held that such an acknowledgment or admission would ot be sufficient.^ . Jackson, 3 Bro. P. C. 194; Ley ▼. •eter, 3 H. & N. 101; Kalheim v. [arrison, 34 Miss. 457, or the execu- ion of a written promise; Snavely . Pickle, 29 Gratt. (Va.) 27; Hall . Felton, 105 Mass. 516; Lyon v. EcDonald, 51 Mich. 435; Haywood . Ensley, 27 Tenn. (8 Humph.) 60; Murphy v. Coates, 6 Stew. Eq. N. J.) 424; Kerndt v. Porterfield, 6 Iowa 412 ; Wells v. Harter, 56 Cal. 42; Schmucker v. Sibert, 18 Kan. 04; 26 Am. Eep. 765, or a eed to third persons; Cape Gir- rdeau CJounty v. Harrison, 58 lo. 90; Randall v. Bradley, 65 le 43; Biddel v. Brizzolara, 56 Cal. 74; or by an acceptance of interest r a part of the principal debt; Win- hester v. Ball, 54 Me. 558; Stump . Henry, 6 Md. 201; Fisk v. Stew- rt, 24 Minn. 97; Pears v. Laing, L. L 12 Eq. 41; or by bringing a bill foreclose, or any proceeding to en- jrce payment of the mortgage debt; [obinson v. Fife, 3 Ohio St. 551; >exter v. Arnold, 1 Sumner (U. S.) 09; Erskine v. North, 14 Gratt. Va.) 60; Giles v. Baremore, 5 Johns, m. (N. Y.) 545; Johnson v. John- on, 81 Mo. 331; Cleveland v. Harri- on, 15 Wis. 870; Martin v. Bowker, 8 Vt. 526; Rieker v. Blanchard, 45 r. H. 39; and purposely absenting r concealing himself so as to pre- ent a tender of the amount due on li« mortgage has been held sufficient. ^aldo V. Rice, 14 Wis. 286. See Wal- lace V. Stevens, 66 Me. 190; Cun- ningham V. Hawkins, 34 Cal. 403. As to the effect of mere parol ad- missions, see Green v. Cross, 45 N. H. 574; Cheever v. Perley, 93 Mass. (11 Allen) 584; Hough v. Bailey, 33 Conn. 288 ; Morgan v. Morgan, 10 Ga. 297; Wimmer v. Ficklin, 77 Ky. (14 Bush) 193; Shepperd v. Murdock, 7 N. C. (3 MurpK) 218. 38. Dexter v. Arnold, 3 Sumn. (U. S. C. C.) leo, where Story, J., com- ments on the case of Perry v. Mars- ton, 2 Bro. Oh. 357, where it has been supposed (though it is not, per- haps, certain) that Lord Thurlow thought parol evidence admissible, and suflScient to give the plaintiff a decree for redemption, but he, in fact, decided against it on another ground. See Reeks v. Postlethwaite, Cooper's Eq. 160; Barron v. Martin, 19 Ves. 326; Marks v. Pell, 1 Johns. (N. Y.) Ch. 594. 39. See also. Whiting v. White, 2 Cox 290. A mortgagee of land, while dis- seised by a stranger, cannot make a valid assignment of his mortgage; but exclusive possession by a mort- gagor and those claiming under him, with a claim of exclusive ownership, does not so disseise the mortgagee as to invalidate a transfer of the mort- gage title, or the execution of a power of sale contained in the mortgage. Dadmun v. Lamson, 91 Mass. (9 Allen) 85; Murphy v. Welch, 128 1066 Statutes of LiMiTATroN. § 236. Absolute conveyances, but in fact mortgages. If the parties to an instrument, at the time of its execution, in- tend it as a security, whatever may be its form, equity will consider it as a mortgage, and no terms or words used in it will be allowed to change its character, and cut off the right of redemption;'*" and this is the case even though the conveyance on its face is absolute, and there is nothing to indicate that it was intended as a security for. a loan or a pre-existing debt;''^ and parol evidence Mass. 489; Holmes v. Turner's Falls Co., 150 Mass. 535, 547, 23 N. E. 305, 6 L. R. A. 283. See 1 Encyc. of L.iw aad Proc, p. 1069; 3 Kerr on Keal Property, § 2104; Longstreet v. Brown (N. J. Eq.), 37yAtl. 56. As to who is a " person claiming under a mortgage " under the Eng- lish Real Property Limitation Act, 1874, § 9, see Thornton v. France (1897), 2 Q. B. 143. As stated supra, § 219, possession subject to a vendor's lien is like pos- session subject to a mortgage, and is not adverse. Lewis v. Harkins, 90 U. S. (23 Wall.) 119, 137, 23 L. Ed. 113; Wheeling Bridge & T. Ey. Co. V. Eeymaun Brewing Co., 90 Fed. 189, 195. See Morgan v. Mueller, 107 Wis. 241, 83 N. W. 313; Milnes v. Van Gilder, 197 Pa. 347, 47 Atl. 197, SO Am. St. Rep. 828 ; Cochran v. Lin- ville Impr. Co,, 127 N. C. 386, 37 S. E. 496; Watson v. Heyn, 62 Neb. 191, 86 N. W. 1064; Chase v. Cathright, 53 Ark. 358, 14 S. W. 90, 23 Am. St. Eep. 307, and note; 32 Am. L. Reg. (N. S.) 859. 40. Robinson v. Farrelly, 16 Ala. 472; Richardson v. Barrick, 16 Iowa 407; Howe v. Russell, 36 Me. 115; Artz V. Grove, 21 Md. 456; Bank of Westminster v. Whyte, 1 Md. Oh. 536; Parks v. Hall, 19 Mass. (2 Pick.) 211; Steel v. Steel, 86 Mass. (4 Allen) 417; Vasser v. Vasser, 1 Cush. (Miss.) 378; Davis v. Clay, 2 Mo. 161; WUson v. Drumrite, 31 Mo. 325; Somersworth v. Roberts, 38 N. H. 32; De Camp v. Crane, 19 N. J. Eq. 166; Holliday v. Arthur, 35 Iowa 19; Phoenix v. Gardner, 13 Minn. 430; Bingham v. Thompson, 4 Nev. 324; Cotterell v. Long, 20 Ohio 464; Miami, etc., Co. v. United States Bank, Wright (Ohio) 249; Pattison V. Horn, 1 Grant (Pa.) Cas. 301, 304; Halo V. Schick, 57 Pa. 319; Nichols V. Reynolds, 1 R. I. 30; Ben- nett V. Union Bank, 24 Tenn. (5 Humph.) 612; MeCan v. Ma.rshall, 26 Tenn. (7 Humph.) 121; Webb v. Patterson, id. 431; Hinson v. Partee, 30 Tenn. (11 Humph!) 587; Yar- brough V. Newell, 18 Tenn. (10 Yerg.) 376; Delahay v. McConnel, 5^11. 156; Nichols v. Cabe, 40 Tenn. (3 Head) 92; Nickerson v. Toney, id. 655; Yates V. Yates, 21 Wis. 473; Oatlin V. Chittenden, Brayt. (Vt.) 163; Campbell v. Worthington, 6 Vt. 448; Mott v. Harrington, 12 Vt. 119; Wright V. Bates, 13 Vt. 341; Rogan v. Walker, 1 Wis. 527. 41. Kellum v. Smith, 33 Pa. 158; Holmes v. Grant, 8 Paige (N. Y.) Ch. 243; Parmalee v. Lawrence, 44 111. 405; Baxter v. Deas, 24 Tex. 17.; MOKTGAGOK AND MORTGAGEE. 1067 is admissible to show that it was intended as a mortgage,*^ or that the defeasance was omitted by fraud or mistake.*^ Upon this Mills V. Darling, 43 Me. 565; Cras- sen V. Swoveland, 32 Ind. 427; Barke- lew V. Taylor, 8 N. J. Eq. 206; Chairea v. Brady, 10 Fla. 133. 42. Babcoek v. Wyman, 60 U. S. (19 How.) 289, 15 L. Ed. 644; Ro- gan V. Walker, 1 Wis. 537; Bishop V. Bishop, 13 Ala. 475; Bryan v. Cowart, 21 Ala. 92; Blaliemore v. Byrnside, 7 Ark. 505; Jordon v. Fenno, 13 Ark. 593; Pierce v. Rob- inson, 13 Cal. 116; Jones v. Jones, 38 Tenn. (1 Head) 105; Guinn v. Locke, id. 110; People v. Irwin, 14 Cal. 428; Johnson v. Sherman, 15 Cal. 287; Cunningham v. Hawkins, 27 Cal. 603; Hopper v. Jones, 29 Gal. 18; Trucks v. Lindsey, 18 Iowa 504; Jackson v. Lodge, 36 Cal. 28; Wash- burn V. Merrill, 1 Day (Conn.) 139; Marks v. Pell, 1 Johns. (N. Y.) Ch. 594; Collins v. Tillou, 26 Oonn. 368; Hovey v. Holoomb, 11 111. 660; Shaver v. Woodward, 28 111. 277; Roberts v. McMahan, 4 Greene (Iowa) 34; Green v. Ball, 67 Ky. (4 Bush) 586; Whitney v. Batchelder, 32 Me. 313; Emerson v. Atwater, 7 Miclh. 12; Johnson v. Huston, 17 Mo. 58; Carlyon v. Lannan, 4 Nev. 156; Condit V. Tichenor, 19 N. J. Eq. 43; Crane v. Buchanan, 29 Ind. 570; Key V. MoCleary, 25 Iowa 191; Phoenix V. Gardner, 13 Minn. 430; Bingham V. Tliompson, 4 Nev. 224; Walton v. Cronly, 14 Wend. (N. Y.) 63; Swart V. Service, 21 id. 36; Webb v. Rice, 1 Hill (N. Y.) 606; Hodges v. Ten- nessee, etc., Ins. Co., 8 N. Y. (4 Seld.) 416; Kimborough v. Smith, 2 Dev. (N. C.) Eq. 558; Couch v. Sut- ton, 1 Grant (Pa.) Cas. 114; Patti- son V. Horn, id. SOI, 304; Stamper V. Johnson, 3 Tex. 1; Mead v. Ran- - dolph, 8 Tex. 191; Hannay v. Thomp- son, 14 Tex. 142; Mann v. Falcon, 25 Tex. 271; Plato v. Roe, 14 Wis. 453. See Fitzpatrick v. Smith, 1 Desaus (S. C.) 340. To the con- trary. Hale V. Jewell, 7 Me. 435; Bryant v. Crosby, 36 Me. 562; Wat- son V. Dickens, 20 Miss. 608. 43. Taylor v. Luther, 2 Sumn. (U. S. C. C.) 228; Morris v. Nixon, 42 U. S. (1 How.) 118, 11 L. Ed. 69; Slee v. Manhattan Co., 1 Paige jN. Y.) Ch. 48; Whittrick v. Kane, 1 id. 202; Van Buren v. Olmstead, 5 id. 1; Strong v. Stewart, 4 Johns. (N. Y.) Ch. 167; Ross v. Norvell, 1 Wash. (Va.) 14; Anon, 2 N. C. (2 Hayw.) 26; M'Laurin v. Wright, 37 N.'C. (2 Ired. Eq.) 94; Hudson v. Isbell, 5 Stew. & P. (Ala.) 67; Eng- lish V. Lane, 1 Port. (Ala.) 328; Craft V. BuUard, S. & M. (Miss.) Ch. 366; Murphy v. Trigg, 17 Ky. (1 T. B. Mon.) 72; Lewis v. Rob- ards, 19 Ky. (3 T. B. Mon.) 406; Lindley v. Sharp, 33 Ky. (7 T. B. Mon.) 248; Overton v. Blgelow, 11 Tenn. (3 Yerg.) 513; Miami Export- ing Co. V. United States Bank, Wright (Ohio) 249; Blair v. Bass, 4 Blackf. (Ind.) 539; Delahay v. McCounel, 5 111. 156; Wadsworth v. Loranger, Harr. (Mich.) 113; Lane V. Dickerson, 18 Tenn. (10 Yerg.) 373; Conwell v. Evill, 4 Blackf. (Ind.) 67; Scott V. Britton, 10 Tenn. (2 Yerg.) 215; May v. Eastin, 2 Port. (Ala.) 414; Abom v. Burnett, 3 Blackf. (Ind.) 101; Bank of West- minster V. Whyte, 1 Md. Ch. 536; 1068 Statutes of Limitation. class of mortgages it has been held that the statute does not begin to run until a tender of the money which it was given to secure, and a refusal to reconvey.*^ But there is no question but that a court of equity would refuse to enforce a right to redeem, where the grantee had slept upon his rights until his claim had become stale/^ Lokerson v. Stillw«ll, 13 N. J. Eq. 357. To the contrary, Streator T. Jones, 5 N. C. (1 Murph.) 449; Thompson v. Patton, 15 Ky. (5 Litt.) 74. 44. Wilson v. Richards, 1 Keb. 342. 45. Neglect by a grantee for thirty years to enforce any right und«r a deed absolute on its face does not pre- clude the claim that such deed was in fact a mortgage only. Mott v. Piske, 155 Ind. 597, 58 N. E. 1053; Porter v. White, 128 N. C. 42, 38 S. E. 24. See Johnson v. Prosperity h. & B. Assoc., 94 111. App. 260. Disabilities ik Pebsonax Actions. 1069 CHAPTEK XXII. Disabilities in Personal Actions. Section 237. Saving clauses in statutes in favor of plaintiffs. 237a (1). Disabilities in general. 237a (2). Disability of part of several jointly interested. 238. Infancy. 238a (1). Infancy. In general. 238a ( 2 ) . Personal actions. 238a (3). Actions for recovery of real property. 238a (4). Effect of marriage. 238a ( 5 ) . Effect of absence or nonresidenee. 238a (6). Effect of action during disability. 239. Insajie persons, Non Compotes, etc. 239a ( 1 ) . Insanity and other incompetency. 239a (2). Eemoval of disability. 240. Coverture. 240a ( 1 ) . Coverture. In general. 240a (2). Effect of separate acts. 240a (3). Nature of property or cause of action involved. 240a (4). Claim by wife against husband. 240a (5). Claim to real property in general. 240a (6). Recovery of property disposed of by husband. 240a (7). Recovery of property purporting to have been conveyed by wife. 240a (8). Effect of separation from husband. 240a ( 9 ) . Effect of disability on joint action of husband and wife. 240a (10). Effect on husband of wife's disability. 240a (H). Effect on husband's right to wife's property. 240a (12). Effect on wife's heirs of surviving husband's interest. 241. Imprisonment. 242. Alien enemy. 242a (1). Disability intervening after accrual of cause of action. In general. 242a (2). Infancy. 242a (3). Coverture. 242a (4). Insanity. 243. Injunction. 244. Absence of defendant from state, statutory provisions as to. 245. What constitutes absence from the state. 245a. Absence at time of accrual of cause of action. 243b. Departure after accrual of cause of action. 246. Joint debtors, absence of one, effect of. 1070 Statutes of Limitation. Section 247. Residence need not be continuous. 247a (1). Nonresidence. In general. 247a (2). Persons entitled to sue. 247a (3). Persons liable. 247a (4). Nature of residence. 247a (5). Actions relating to specific property or interests therein. 247a (6). Effect of agency within jurisdiction. 247a ( 7 ) . Corporations. 247b. Return and residence after absence. 248. Absconding debtors. 249. Concealment. 249a ( 1 ) . Concealment of person or residence. In general. 249a (2). Ignorance of person entitled to sue. 249b. Concealment of property involved or liable. 249c. Effect as to parties jointly or severally liable, guarantors, and sureties. 250. Foreign corporations. 251. Cumulative disabilities. 251a. Co-existing disabilities. 251b. Tacking successive disabilities. 252. Disability must be one provided by statute. 253. Disability of defendants. § 237. Saving clauses in statutes in favor of plaintiff. In the seventii section of the statute of James it is provided that, if at the time when a cause of action accrued any person entitled to bring the same shall be within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas,-*^ such person shall be at liberty to bring the same action within the time limited by the statute after his disability has terminated ; and substantially the same provision is incorporated into the statutes of most of the States. In Maine,^ these and other exceptions are made, the words " married woman " and " insane " being sub- stituted for " feme covert " and non compos mentis; so, also, in Vermont, but the statute of which State also contains the ad- ditional exceptions existing in the Maine statute, except that in cases where a debtor is out of the State at the time when an ac- 1. See Appendix, Maine Rev. Stats. out of the jurisdiction. Maurice v. (1903), ch. 83, 95, 96, 106, § 91. Worden, 52 Md. 283, 291; Mason v. 2. In America the phrase " beyond Union Mills C?o., 81 Md. 446. the seas " means out of the Statei, or Disabilities in Peesonal Actions. 1071 tion accrues, or after it accrues, the exception does not apply if the debtor has within the State known property which, by the common and ordinary processes of law, could be attached; so, also, by section 1564 (1212), of the statute of Vermont, whenever the commencement of an action is stayed by an injunction of any court of equity, the time during which such injunction is in force is not to be taken as any part of the time limited for the com- mencement of the suit enjoined.^ In ~New Hampshire, substan- tially the same exceptions exist as in the statute of James, ex- cept that the words " insane person " are substituted for non compos mentis; no exception is made in favor of persons im- prisoned or out of the United States;* and substantially the same exception is made as in Maine in the case of the absence of the debtor, the exception being that, if the defendant at the time the cause of action accrued, or afterward, " was absent from and residing out of the State," the time of such absence shall be excluded. In Massachusetts,^ an exception is made in favor of infants, insane persons or persons imprisoned, alien citizens of a country at war with the United States, and also where the de- fendant at the time when the cause of action accrued or after it had accrued, resided out of the State. In Connecticut,® as to actions of account, debt due by book or on simple or implied contract, or upon any contract in writing, not under seal, except promissory notes not negotiable, persons legally incapable to bring any such action at the accruing thereof may bring the same at any time within three years after becoming legally capable to do so; and the same exception exists as to specialties, except that four years are given after the party becomes capable of suing; where a per- son dies before the statute bar has become complete, his executor or administrator shall have one year from the time of such de- cease in which to bring an action thereon. In Ehode Island, 3. Vermont Stats. (1906), § 1560 (1902), ch. 203, §§ 7-9 (P. S. 197, (1308) et seq. ||§ 9-11). 4. New Hampshire Public Stats. 6. Cfoimecticut Gen. Stats. 1902, (1901), ch. 317, §§ 2, 7, 8. clh. 79, § 1108 et seq.; (1888), ch. 98, 5. Massa/Chusetts Public Stats. § 1370 et seq. 1072 Statutes of LiMiTArroir. substantially the same provision exists as in Maine, excejpt as to absence from the State, and in that respect the provision is substantially the same as in Vermont -^ and in all cases of adverse possession no exception is made in favor of a married woman because of her coverture.^ In New York,® infancy or insanity creates a disability, and so does imprisonment on a criminal charge or in execution upon conviction of a criminal offense for a term less than for life; but the time for bringing an action cannot be extended more than five years by any such disability except infancy, nor in any case more than one year after the dis- ability ceases. As to absence from the State when the right of action accrues, substantially the same provision exists as in the New England States. In New Jersey,^" an exception is made in cases of infancy and insanity, but not in the case of coverture. In Pennsylvania, the same provisions exist as in the statute of James, and the provision as to persons " beyond sea " is con- strued as meaning persons " without the United States." ^^ In Delaware,^^ exception is made in favor of persons " under disa- bility of infancy, coverture, or incompetency of mind." In Maryland, exceptions exist in cases of infancy and insanity, but not in the case of imprisonment or coverture, and " absence from the State " is substituted for " beyond the seas." ^^ In Virginia," exception is made in favor of infants, married women, and in- sane persons ; but the section " does not apply to a married womaa having the right to make an entry on or bring an action to recover land which is her separate estate." In South Carolina,^^ sub- stantially the same exceptions exist as in New York ; so, in North 7. Rhode Island Gen Laws 1909, 1910, p. SS66; Gonder v. Estabrook, ch. 284, § 5; (1896), oh. 234, § 5. 33 Pa. 374. 8. Ibid. oh. 356, § 3 (1896), ch. 12. Delaware Laws (1S93), ch. 122, 194. § 17. §§ 13, 14. 9. Bliss's N. Y. Ann. Code (4th 13. Maryland Am. Civ. Code, 1911, Ed.), § 396. art. 57, §§4,5. 10. New Jersey Comp. Stats. 1911, 14. Pollard's Am. Virginia Code, § *• 1904, § 2931. 11. 3 Stewart's Purdon's Digest, 15. South Carolina Cowe, 1912, §§ 133 (111), 108, 14« (124), 122. Disabilities is Peesonal Actions. 1073 "Carolina/® except that married -women are also included in the exception, as also are those " imprisoned on a criminal charge, or in execution upon conviction of a criminal offense." In Ala- bama, persons under the disability of infancy, insanity, or im- prisonment on a criminal charge for less than for life, are given three years, or the period allowed by lav7 for the bringing of such action if it be less than three years, after such' disability is re- moved to bring an action, provided that no disability shall extend the period of limitation beyond twenty years from the time when the cause of action accrued." In Georgia, infanta, idiots or in- sane persons, or persons imprisoned, who are such when the cause of action accrues, are given the full statutory period after such disability is removed, to bring an action ;^^ and substantially the same provision exists in Arkansas, except that " idiots " are not expressly included, and imprisonment does not constitute a dis- ability, unless it occurs " beyond the limits of the State." ^' So in Colorado, the disabilities are substantially the same as in Georgia, except as to " idiots," and the statute also includes mar- ried women and persons who at the time when the action ac- crued were absent from the United States.^* In Florida, a saving exists in favor of infants, insane persons, persons imprisoned, and seven years is given after the removal of such disability, or after the death of such person, in which to bring an action or to make an entry or defense.^^ In Indiana, ^^ the disabilities are not specifically stated, but two years are given to any person " under legal disabilities ^ when the cause of action accrues " in which 16. Pell's Revisal N. C. Code, 1908, 18. Georgia Code (1911), §§ 4374 |§ 362, 363 (148). (3779). 17. Alabama Civil Code, 1907, §§ 19. Appendix, Arkansas, Kirby'8 4846 (2807). Digest (1904), §§ 5075 (4833). In actions to recover land, here 80. Colorado, 2 Mills' Ann. Stats. limited to seven years, persons under 1912, §§ 4641 (2914). disability have, after it is removed, 21. Florida Rev. Stats. 1914, §§ and after the seven years, have 1723 (1292). elapsed, three years in which to sue. 22. Indiana Stats. (1914, by Kirby's Digest of Arkansas Statutes Burns), §§ 298 (397). <1904), §§ 5056 (4815). 23. This clause, "under legal dis- 68 1074 Statutes oi- Limitation. to bring an action " after such disability is removed." In Iowa, non-residence is excepted, and one year after the removal of the disability is given to minors and insane persons.^* In Illinois, an exception is made in favor of minors, or if a female, within the age of eighteen years, insane persons or persons imprisoned on a criminal charge, and two years after such disability is removed is given.^^ In Kentucky,^^ infancy, coverture, or unsoundness of mind constitute a disability, and the period of three years after its removal is given; by section 2534 an exception exists in favor of an alien and a citizen of a country at war with the United States, by section 2535 the time during which an action is enjoined is not to be computed; and by section 2536 the time during which the plaintiil is confined in the penitentiary is not to be computed.^ In Mississippi, infancy and unsoundness of mind constitute the only disabilities.^^ In Missouri, the provision as to disabilities applies to infants, insane persons, niarried women, and persons imprisoned on a criminal charge, or in execution under sentence of a criminal court for a period less than his natural life f^ so, also, in Minnesota, except that in the latter State the period of limita- tion cannot be extended more than five years, except in the case of infancy, nor in any case longer than one year after the disability ceases.^" In Ohio, the exceptions are substantially the same as in abilities," does not embrace non- S. 395, 4 Sup. Ct. 436, 28. L. Ed. 466; residence, but does include absence Oliver v. Pullam, 24 Fed. 127; Easrt from the United States, and also Tenn. & Coal Co. v. Wiggiji, 68 Fed. coverture. Bauman v. Grubbs, 26 446, 15 C. C. A. 510. Ind. 419; Smith v. Bryan, 74 Ind. 24. Iowa Ann. Code (1897), §§ 515; Royse v. Turnbaugh, 117 Ind. 3451, 3453. 539, 20 N. E. 485. Since 1881 mar- 25. Illinois Eev. Stats. (1912, by ried women are not under disability Hurd), ch. 83, Par. 7216 (§ 21). In Indiana. Indianapolis v. Patter- 26. Kentucky Stats. (1909, by Car- son, 113 Ind. 344, 14 N. E. 551. As roll), § 2506. to cumulative disabilities, see supra, 27. Ibid. § 6 and note 69; infra, § 251; Miller 28. Mississippi Rev. Code, 1906, §§ V. Texas & Pac. Ry. Co., 132 U. S. 3106 (2746). 662, 10 Sup. Ct. 206', 33 L. Ed. 487; 29. Missouri Rev. SUts. 190«, §§ Davis V. Coblens, 174 U. S. 719, 19 1894 (4279). Sup. Ct. 832, 43 L. Ed. 1147; Gaines 30. Minnesota Stats. 1913, §§ 7710 V. Hammond, 6 Fed. 449, afE'd 111 U. (5147). Disabilities in Peesonal Actions. 1075 Massachusetts, except as to aliens and the defendant's absence from the State.^^ In California, infants, insane persons, persons imprisoned on a criminal charge, or in execution under sentence of a criminal court for a period less than for life, and a married woman when her husband is a necessary party with her in com- mencing an action, are within the saving of the statute.'^ In Ore- gon, the provisions are the same as in California, except that the qualification as to married women is general, and except that the period within which action shall be brought shall not be extended more than five years, nor more than one year after the disability ceases.^^ In Michigan, infants, insane persons, persons imprisoned, married women, and persons absent from the United States (un- less within the British Provinces of North America), are within the saving of the real property statute.^* In Wisconsin, the same disabilities exist as in New York; but action must, except in the case of infancy, be brought within five years, and within one year after the disability ceases.^^ In Nevada, the same disabilities exist as in Wisconsin, but the period of five years, or after the death of a person while under such disability, after their removal is given, and married women are included.^^ In Nebraska, the exceptions apply to infants, insane persons and persons impris- oned.^' In Tennessee, the saving is in favor of infants, persons of unsound mind, married women, and persons beyond the limits of the United States or the territories thereof f^ and action may be brought within the statutory period after such disability is re- moved, unless it exceeds three years, and in that event within three years. In Texas, infants, married women, until they reach 31. Page & Adams' Ann. Ohio Gen. 35. 2 Wisconsin Statutes (1913, Code, 1910, §§ .11229, 11232 (4986, Sanborn &, Berryman), § 4233. 4989). 36. Nevada Revised Laws, 1912, 32. California Code of Civil Pro- §§ 4966, 4976 (3716, 3717). cedure, 1908, §§ 328, 352. 37. Nebraska Civil Code, 1913, Par. 33. 1 Oregon Laws (1910, by 7576, § 17. Lord), ch. 2, § 17. 38. Tennessee Code (1896, by Shan- 34. 5 Michigan Am. St. (Howell), non), § 4448. 1913, §§ 14133 (9718) ; as to personal actions, see §§ 14140 (9733). 1076 Statutes of Limitation. the age of twenty-one, persons of unsound mind, and persons im- prisoned, are saved from the operation of the real property stat- ute.^' In Kansas, persons " under any legal disability " may bring an action within two years after the disability is removed,^" in the case of real property, and within one year in other cases except penalties and forfeitures. In West Virginia, a saving exists in favor of infants, married women, and insane persons, except in cases where married women hold real estate in their sole right." In Arizona, the exceptions are in favor of infants, persons of un- sound mind, and persons imprisoned.*^ In North and South Dakota,*^ the exceptions are the same as in Oregon ; but the period cannot be extended more than five years, except in case of infancy, nor in any case more than one year after the disability ceases. In Idaho, the same disabilities exist as in California.*^ In Montana, the same disabilities exist, but ten years are allowed in real actions after the disability ceases, or the death of the party disabled, and in personal actions five years' disability only is allowed, except in the case of infancy, or one year after the disability ceases.*^ In ISTew Mexico, minors, insane persons, or persons " under any legal disability," are given one year after its removal in which to bring an action.*^ In Utah, the disabilities are the same as in Cali- fornia, but married women are not included, and actions lie for one year after disability ceases.*'' In Wyoming, a saving exists in favor of infants, insane persons, and persons imprisoned, and in personal actions the full statutory period after such disability is removed is given in which to bring an action, while in real actions ten years are allowed after " any legal disability " is removed.** 39. Texa,s Civ. Stats. 1913, §§ 5684 44. 3 Idaho Rev. Codes 1908, §§ (3353); see §§ 5708 (3373). 4046, 4070. 40. Kansas Gen. Stats. (1909, by 45. 3 Montana Code of Civ. Pro- Dasalee), §§ 5609, 5611 (4361, 4363). cedure, 1907, §§ 6442, 6459 (493, 41. 2 Hogg's West Virginia Code, 542). 1913, eh. 104, §§ 4416, 4439 (3, 16). 46. New Mexico Compiled Laws, 42. Arizona Rev. Stats. §§ 707, 729 1897, § 2933. (3307,2330). 47. Utah Comp. Laws, 1907, §§ 43. No. Dak. Code of Civil Pro- 3872, 3889. cedure, 1913, §§ 7373, 7385; So. Dak. 48. Wyoming Comp. Stats. 1910, Comp Laws, 1910, § 70. §§ 4396, 4304 (2375, 2377). Disabilities in Pbesonal Actions. 1077 It will be observed that these saving clauses, given here for con- venience of comparison and reference, are substantially the same as those contained in the statute of James, except that in most of them,*' instead of an exception in favor of persons non compos mentis^ it only exists in favor of " insane persons ;" a distinction which is of great importance, and excludes from its saving opera- tion idiots, imbeciles, etc., who are properly embraced under the head of non compotes. In Connecticut, the saving exists in favor of persons " legally incapable " to sue, and this applies, therefore, only in favor of infants and femes covert^ and such persons as by the common or statute law are incapable of bringing an action at law, and does not embrace persons imprisoned or beyond seas. In Delaware, instead of an exception in favor of persons non compos mentis, it exists in favor of persons under the disability of " incompetency of mind," which is substantially the same thing, and in Kentucky " unsoundness of mind ;" so, also, in Tennessee, Mississippi, and Texas. In Iowa, there are no excep- tions in favor of any disabilities, and no saving except as to minors and insane persons; while in Georgia, in addition to minors, in- sane persons, and married women, idiots are expressly included. In Pennsylvania and Maryland, the statute excepts persons non compos mentis. In Indiana, none but " legal " disabilities are ex- cepted.^" 49. Vermont, New Jersey, New 28, 55 S. W. 231, 77 Am. St. Rep. Hampshire, Colorado, Rhode Island, 747; Carney v. Hennessey, 74 Conn. Virginia, New York, Alabama, Illi- 107, 53 L. R. A. 699, 93 Am. St. Rep. nois, Michigan, Wisconsin, Missouri, 199, 49 Atl. 910; King v. Carmichael, Arkansas, California, Massachusetts, 136 Ind. 20, 35 N. E. 509, 43 Am. Oregon, North Carolina, South Caro- St. Rep. 303; Landry v. Landry, 105 lina, Minnesota, Kansas, Georgia, La. 363, 39 S. E. 900. In Nevada, Nebraska, Florida, Ohio, Moore v. Calvert, 69 Ky. (6 West Virginia, Arizona, Montana, Bush) 356, it was held that Idaio, New Mexico, Utah, and Wyom- when a right of action accrues to ing. parceners or joint tenants, if some of 50. See Young v. Harris, 65 L. T. them are under disability, the stat- 45; Bent v. Thompson, 138 U. S. 114, ute runs as to all, notwithstanding 11 Sup. Ct. 338, 34 L. Ed. 903; the coverture or infancy of the Westmeyer v. Gallenkamp, 154 Mo. others. In Pope v. Brassfleld, 110 1078 Statutes of Limitatiok'. § 237a (1). Disabilities in general. It is the general rule that, when the statute of limitations once begins to run, it is not suspended by intervening disabilities of the plaintiff or his privies in interest.^^ Limitations run against per- sons under disability, unless there is an express saving in the statute in their favor.^^ Arizona Laws 1913, No. 16, providing that certain actions shall be barred in on© year, do not repeal Civ. Code Ariz. 1901, par. 2970, declaring that in cases of infancy, unsoundness of mind, or imprisonment the time of disability shall not be counted as a part of the time limited.^^ An adjudication in bankruptcy under the Bankruptcy Act of 1898, as amended, does not put the creditor under a " legal disability," within the meaning of Okl. Rev. Laws 1910, § 4658, as to an action in a state court on a provable claim.^* The confirmation of a guardianship settlement being a special proceeding, Kirby's Dig. Ark., § 5075, extending the time within which persons under disability of minority or insanity may bring any action, does not refer thereto.^^ The Kentucky thirty-year statute of limitations bars all claims, without regard to disability, where there was a right of action in the claim- ants.^" There being no saving clause in Missouri Eev. St. 1899, § K^. 128, 61 S. W. 5, 7, it was Under Ky; St. 1903, § 2505, an ac- queried whether this case would be tion for the recovery of land can followed under the present statutes, only be brought within 15 years after 51. Larue v. C. G. Kershaw Con- the accrual of the cause of action, tracting Co., 177 Ala. 441, 69 So. 155. and under section 2506, if, when the 52. McGraw v. Rohrbough (W. action first accrues, the person en- Va.), 82 S. E. 217. titled to bring it is under disability, 53. Silvas v. Arizona Copper Co., he may, though 15 years has expired, 213 Fed. 504 (U. S. D. C). bring it within three years after the 54. Simpson v. Tootle, Wheeler & disability is removed; the purpose of Hotter Mercantile Co., 43 Okl. 275, section 2506 is not to extend the 141 Pac. 448. limitation three years, except where 55. Nelson v. Cowling, 89 Ark. 334, the disability is not removed more 116 S. W. 890. than three years before the expiration 56. Dixon v. Harris, 32 Ky. Law of 15 years. Dukes v. Davis, 30 Ky. Eep. 375, 105 S. W. 451; Rose v. Law Rep. 1348, 101 S. W. 390. See Ware, 115 Ky. 420, 24 Ky. Law Rep. also. Young v. Ashland Coal & Iron 8321, 74 S. W. 188; 25 Ky. Law Rep. Ry. Co., 19 Ky. Law Rep. 491, 41 S. 947, 76 S. W. 505. W. 313. Disabilities in Peesonaj, Actions. 1079 4267, the" right to sue is barred in ten years, except as to persons suffering from disabilities specifically mentioned in section 4265, and they are barred in twenty-four years, whether the disabilities have been removed or not.^' The rule that, where the trustee is bound by the statute of limitations, the cestui que trust is also bound, is not applicable where, if there were no trustee interven- ing, the statute would not operate against the cestui que trust, as where the cestui que trust is a minor or otherwise disabled from suing on his own account. ^^ § 237a(2). Disability of part of several jointly interested. If an action not severable is not barred as to one of the part- ies on account of his infancy at the time the cause of action arose, it is not barred as to either of the other parties.^' In joint ac- tions to recover land, it is error to charge that, if the action was commenced by the plaintiffs at any time within the statute after the youngest became of age, they would not be barred ; the true rule being that the action is barred as to each of the plaintiffs within the 57. De Hatre v. Edmunds, aOO Mo. Where heirs to whom a right of B46, 98 S. W. 744. entry has descended were all under See also, Tapley v. McPike, 50 Mo. disability at the death of their an- 569; Gray v. Yates, 67 Mo. €01; Rob- cestor, they have the time allowed inson v. Allison, 192 Mo. 366, 91 S. by statute after the removal of such W. 115, as to the effect of disabili- disabilities from all to make their ties. entry or bring their action; but, if 58. Ward v. Ward, 13 O. 0. D. 59. one or more of the heirs were free See, as to effect of disabilities un- from disability at the death of the ■der other statutes: ancestor, the disabilities of the other La. — Sallier v. St. Louis, W. & G. heirs do not prevent the statute from Ey. Co., 114 La. 1090, 3S So. 868; running, nor bring any of them Meyer v. Moss, 110 La. 133, 34 So. within its saving. Collier v. Davis, 533; Succession of Cormier, 53 La. 4 Ky. Law Eep. (abstract) 981. The Ann. 876, 27 So. 393. fact that one of the beneficiaries of Wis. — Brown v. City of Baraboo, a fund lent under order of court is as Wis. 373, 74 N. W. 333. an infant does not extend the time 59. Ber-esh v. Supreme Lodge of limitation as to the surety in the Knights of Honor, 166 111. App. 511, bond executed therefor. Bowen v. judg. aff'd 355 111. 123, 99 N. E. 349. Helm, 19 Ky. Law Rep. 486, 41 S. See also, Williams v. Merritt, 109 Ga. W. 389. 213, 34 S. E. 312. 1080 Statutes of Limitation. statutory period after coining of age.™ Since adult heirs have no right to the possession of the homestead of the decedent until the termination of the homestead interest of a minor heir, which oc- curs on his reaching majority, limitations of two years within which to sue to set aside a void tax deed of the homestead do not begin to run against the adult heirs imtil the infant heir reaches his majority."^ § 238. Infancy. An infant, in law, is a person who by reason of his tender years is regarded as incapable of contracting, and who can neither sue or be sued thereon. In most of the States all male persons under the age of twenty-one years, and all females under the age of eighteen years, are infants, within the meaning of the term as used under this head. Persons who have not attained the age of majority are infanta, and in those States where infancy is within the saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a guardian who might sue the claim in question ;^^ nor even though other persons are jointly interested eO. Napier v. Little, 137 Ga. 242, Where limitations barred a male 73 S. E. 3. heir from recovering his half interest See also, Pickens v. Stout, 67 W. in land, but not his sister — she being Va. 422, 68 S. E. 354; Allen v. Le- a married woman — a conveyance by flore County, 80 Miss. 298, 31 So. the brother to his sister of his in- 815; Learned v. Ogden, 80 Miss. 769, terest did not stop the statute, and 32 So. 278, 92 Am. St. Eep. 621. an action by her to recover such in- Owing to the statutory modification terest more than seven years after of the common law rule, which no the statute began to run was barred, longer requires that all joint tenants MoFarlane v. Grober, 70 Ark. 371, shall unite in suits affecting the joint 69 S. W. 56, 91 Am. St. Eep. 84. property, the infancy of some of And see Wolf v. Hess, 107 Fed. 194 several joint tenants does not pre- (U. S. 0. 0. Ark.), vent the running against the others 61. Harris v. Brady, 87 Ark. 428, of Code, § 2915, barring an action 112 S. W. 974. for the recovery of land in 15 years 62. Moore v. Wallis, 18 Ala. 458; after the right of entry accrues. Grimsby v. Hudiwell, 76 Ga. 378, 3 Bedford v. Clark, 100 Va. 115, 4 Va. Am. St. Rep. 46. Infancy is within Sup. Ct. Eep. 36, 40 S. E. 630. Disabilities in Peesonax Actions. 1081 in the claim, who are of full age,^^ until he or she attains the age of majority.''* The fact that a guardian or the infant himself brings a suit before the disability is removed does not operate as a waiver of the saving clause in favor of the disability.^^ But while, as previously stated, the fact that an infant has a guardian who might maintain an action for a claim does not change the rule,*" yet the minority of a claimant at the time when the claim the saving clause of all the statutes except in Iowa, where there is no ex- ception in favor of any disability ex- cept in the case of real actions, in reference to which an exception is made in favor of minors, and they are given one year after becoming of full age in which to bring an action. 63. Pendergrast v. GuUatt, 10 Ga. 318. In Milner v. Davis, 16 Ky. (Litt. Sel. Cas.) 436, it was held that the infancy of one plaintiff in an ac- tion of trov^er would not prevent the statute from running against all. But in Kentucky it is held that the infancy of one tenant in common will not prevent the running of the stat- ute against a co-tenant. Thomas v. Machir, 7 Ky. (4 Bibb) 412; Moore V. Capps, 9 111. 315. 64. Merrill v. Tevis, 32 Ky. (2 Dana) 162; Shannon v. Dunn, 8 Blackf. (Ind.) 182; Hawkins v. Haw- kins, 28 Ind. 66. And the common law presumption of payment does not run against an infant. Wilkinson v. Dunn, 53 N. C. (7 Jones) 125. 65. Jackson ex dem. Bunt v. Ran- som, 10 Johns. (N. Y.) 407. In Chandler v. Vilett, 1 Saund. 120, it was held that the privileges by rea- son of infancy and other impediments are saved in an action on the case in assumpsit by the statute 21 James I. c. 16, and, although in that case it was claimed that the infant should have waited until he became of full age before suit was brought, yet the court held that he might pur- sue his action at any time within age, although the six years are elapsed. Cotton's Case, 2 Inst. 519; Stowel v. Zouch, Plowd. 366a. The meaning of the saving clause is, that the right of persons laboring under disabilities shall not suffer in con- sequence of such disabilities; and, therefore, where personal property of an infant is illegally disposed of, or permitted to pass into the hands of persons who are not entitled to it, by a guardian or other trustee, the statute does not begin to run against the infant until he is twenty-one years of age, and he may recover in a case where an action by the guar- dian or other trustee would be barred. Bacon v. Gray, 23 Jliss. 140. See Layton v. The State, 4 Harr. (Del.) 8. No disability, arising after the disability of infancy has expired, can be added to it, to defeat the opera- tion of the statute of limitations. Stevens v. Bomar, 28 Tenn. (9 Humph.) 546. It is no answer to a plea of the statute of limitations to a writ of error, that within five years next after one of the plaintiffs had arrived at full age the writ was prosecuted. Shannon v. Dunn, 8 Blackf. (Ind.) 182. 66. Bacon v. Gray, 23 Miss. 140. 1082 Statutes of Limitation. accrued will not bring him within the exception of the statute, if at that time the legal right of action upon it was vested in a trustee who was under no disability, for his- benefit.*' In Ken- tucky, it has been held that where the executor has a right of action the statute will not be prevented from running by reason of the disability of the heir.^^ § 238a(l). Infancy— In general. The eases holding that a State statute of limitations may be deemed suspended by causes preventing a suit not enumerated in the statute,*^ rest on the grounds that the creditor has been dis- abled to sue by a superior power and without any default of his own, and therefore none of the reasons which induced the enactment of the statute apply to his case; and unless the statute ceases to run during the continuance of the disability, he is deprived of a portion of the time during which the law contemplated he might sue. Hence the implied suspension should continue no longer than the 67. In Wilmerding v. Russ, 33 Conn. 67, Hinman, J., said: "The petitioners say that the fact that they were minors brings them within the exception of the statute. But the residuary estate is, by the will, vested in the trustees, who were un- der no legal disabilities, and this is a sufficient answer to the claim." Wych V. East India Co., 3 P. Wms. 309. The same rule prevails where the legal title to land is vested in a trustee. Brady v. Walters, 55 6a. 25. In Hall v. Bumstead, 37 Mass. (20 Pick.) 2, it was held that the statute limiting suits against execu- tors and administrators is an abso- lute bar, and that the fact that the plaintiff was under the disability of infancy during the time that the es- tate of the deceased was under ad- ministration will not prevent his claim from being barred by the lapse of the period fixed for limiting such actions. In this case, it is proper to state that actual fraud on the part of the executor was not shown, and, amounting only to constructive fraud, it was held that the statute applied. See Robinson v. Hook, 4 Mas. (U. S.) 151; Bickford v. Wade, 19 Ves. 88; Murray v. Coster, 20 Johns. (N. y.) 576. In How«ll v. Leavitt, 95 N. Y. 617, it was held that possession of real estate by a mortgagee, acquired by force or fraud, against the will and consent of the owner, and without color of legal authority, is not a defense to an action or ejectment brought by such owner. 68. Darnall v. Adams, 53 Ky. (13 B. Mon.) 273. 69. Hopkirk v. Bell, 7 U. S. (3 Oranch) 454, 2 L. Ed. 497, 73 U. S. (6 Wall.) 532, 18 L. Ed. 497. Disabilities in Personal Actions. 1083 actual disability prevented a suit. Only that period of time during whicli the party was actually prevented from bringing suit by the cause which he claims to have suspended the statutes should be al- lowed to be deducted from the term limited by the statute for su- ing.™ The exemptions from the operation of statutes of limitation usually accorded to infants do not rest upon any fundamental doc- trine of the law, but only upon express provision therefor in such statutes. It is competent for the Legislature to put infante and adults upon the same footing in this respect, and this is the effect of a statute containing no saving clause exempting infants."- For the construction of provisions in the statutes of limitations of the sev- eral States exempting minors from the operation of the statute, see the cases cited in the note below. ''^ The doctrine that a person has a reasonable time after reaching majority in which to disaf- 70. Braun v. Sauerwein, 77 U. S. (10 Wall.) 218, 19 L. Ed. 895. 71. Schauble v. Schulz, 137 Fed. 389, 69 C. C. A. 581. Alabama Code 1907, §§ 4846, 4860, operate to extend limitations in favor of minors only when the limi- tations had never commenced to run against their predecessor. Richard- son V. Mertins, 175 Ala. 15, 57 So. 720. No exceptions can be claimed in favor of minors in a statutory pro- vision limiting the time of commenc- ing actions given by such statute, unless they are expressly mentioned in the statute as excepted. Indiana Cent. Ry. Co. v. Oakes, 20 Ind. 9; De Moss V. Newton, 31 Ind. 219. All persons are barred by statutes of limitations, unless excepted by a saving clause, even those under the disability of infancy. Favorite v. Booher's Adm'r, 17 Ohio St. 548. 72. Ala. — Richardson v. Mertins. 175 Ala. 309, 57 So. 720. Ark. — Harris v. Brady, 87 Ark. 428, 112 S. W. 974; Rowe v. Allison, 87 Ark. 206, 112 S. W. 395. Del. — ^Traverse's Adm'r v. Cain, 3 Har. 97. Go.— Edenfield v. M'ilner, 138 Ga. 402, 75 S. E. 319; Grimsby v. Hud- nell, 76 Ga. 378, 2 Am. St. Rep. 46; Jordan v. Ticknor, 62 Ga. 123; At- lanta & West Point R. Co. v. Cole- man, 142 Ga. 94, 82 S. E. 499. III. — A female must bring a cause of action within three years after she arrives at the age of 18 years in order to avoid the eflfect of the stat- ute of limitations. Davis v. Hall, 92 111. 85; Kilgour v. Cockley, 83 111. 109. Ind. — ^Davidson v. Bates, 111 Ind. 391, 12 N. E. 687; Bryson v. Collmer, 33 Ind. App. 494, 71 N. E. 229; Breeding v. Shinn, 8 Ind. 125. /oiMs. — Tucker v. Stewart, 147 Iowa 294, 126 N. W. 183; Rice v. Bolton, 126 Iowa 654, 100 N. W. 634, modified on rehearing 102 N. W. 509, under the express pi-ovisions of Code, § 3453, limitations do not run 1084 Statutes of Limitation. firm or ratify acts performed during infancy does not give an in- fant a time other than that specified by limitations to attack a constructive fraud of his guardian in purchasing the trust prop- against an infant, save for penalties and forfeitures, until one year after majority. Ky. — Willson v. Hodges' Guardian, 6 Ky. Law Rep. 295, 7 Ky. Law Rep. 525; Pool V. Allinsworth, 6 Ky. Law Rep. 594; Gibson v. Gibson, 25 Ky. Law Rep. 1332, 77 S. W. 928, the statute of limitations does not run against an infant. La. — Prescription of 10 years does not run against a minor. Scovell v. St. Louis S. W. Ry. Co., 117 La. 459, 41 So. 723; George v. Delaney, 111 La. 760, 35 So. 894; Rocques' Heirs T. Levecque's Heirs, 110 La. 306, 34 So. 454; Cox V. Von Ahlefeldt, 105 La. 543, 30 So. 175; Messick v. Mayer, 53 La. Ann. 1161, 27 So. 815. Minn. — Martz v. McMahon, 114 Minn. 34, 139 N. W. 1049. Mich. — ^ICeating v. Michigan Cent. R. Co., 94 Mich. 219, 53 N. W. 1053. Miss. — Learned v. Ogden, 80 Miss. 769, 32 So. 378, 92 Am. St. Rep. 631; Adams v. Torrey's Ex'rs, 26 Miss. 499. Mo. — Elliott V. Landis Maeh. Co., 236 Mo. 546, 139 S. W. 356. N. H. — Forest v. Jackson, 56 N. H. 357. N. Y. — Decisions under Code Civ. Proc., § 396: In re Pond's Estate, 40 Misc. Rep. 66, 81 N. Y. Supp. 249; In re Irvin's Estate, 68 App. Div. 158, 74 N. Y. Supp. 443; Hyland v. New York Cent., etc., R. Co., 24 App. Div. 417, 48 N. Y. Supp. 416, 5 N. Y. Ann. Cas. 159; Norton v. City of New York, 16 Misc. Rep. 303, 38 N. Y. Supp. 90; Jagau v. Goetz, 11 Misc. Rep. 380, 33 N. Y. Supp. 144. Under Code Civ. Proc, § 1833: In re Brooks, 65 Misc. Rep. 439, 121 N. Y. Supp. 1092; In re Oashman, 62 Misc. Rep. 598, 116 N. Y. Supp. 1128, Nia- gara Oity Charter; Winter v. City of Niagara Falls, 119 App. Div. 586, 104 N. Y. Supp. 39, 83 N. E. 1101. See also, In re Becker, 28 Hun 307; Miller v. Parlchurst, 9 N. Y. St. Rep. 759; Danziger v. Iron Clad Realty & Trading Co., 80 Misc. Rep. 510, 141 N. Y. Supp. 593. N. C— Cameron v. Hicks, 141 N. C. 31, 53 S. E. 728, 7 L. R. A. (N. S.) 407. Ohio. — Jaeger v. Herancourt, 1 Wkly. Law Bui. 10; Slater v. Cave, 3 Ohio St. 80. R. /.— Bliven v. Wheeler, 23 R. I. 379, 50 Atl. 644. 8. C— Fricks v. Lewis, 36 S. C. 237, 1 S. E. 884; Clark v. Smith, 13 S. C. 585; Thomson v. Gaillard, 3 Rich. Law 418, 45 Am. Dec. 778. Tenn. — Gaugh v. Henderson, 39 Tenn. (2 Head) 628; Aiken v. Smith, 33 Tenn. (1 Sneed) 304; Nelson ^-. Allen, 9 Tenn. (1 Yerg.) 360. Tew.— Japhet v. Pullen (Tex. Civ. App.), 133 S. W. 441; Schneider v. Sellers, 98 Tex. 380, 84 S. W. 417, modifying (Civ. App.) 81 S. W. 136; Ferguson v. Morrison (Tex. Civ. App.), 81 S. W. 1240; Behan v. Long (Tex. Civ. App.), 30 S. W. 380; Hampton v. Hampton, 9 Tex. Civ. Ap'p. 497, 29 S. W. 423. Va. — Brown v. Lambert's Adm's 33 Grat. 356. Disabilities in Peesonal Actions. 1085 erty at foreclosure sale.'^ As to the application of the statutes of limitations of different States to actions against former guardians and trustees, see authorities cited in note below.''* § 238a (2). Personal actions. Under the Arkansas statute, giving an action for wrongful death, and providing that action therefor shall be begun within two years after the death of such person, in the absence of any saving clause, the infancy of plaintiff at the time the cause of action ac- crued does not postpone the running of the statute.'^ In Cali- fornia, the time within which an action may be brought by a female for her own seduction does not commence to run until she has ar- rived at the age of majority,'" In Georgia, where plaintiff was a minor at the time a trespass was committed on her land, her right of action was suspended until her arrival at the age of twenty- one years.'' In Illinois, in an action by minors to recover money due, defendant cannot invoke the statute of limitations, since un- der the statute of limitations such plea is not good.'^ In Indiana, 73. Cahill v. Seitz, 93 App. Div. Mo. — State, to the use of Coleman (N. Y.) 105, 86 N. y. Supp. 1009. v. Willi, 46, Mo. 236. 74. Ark. — Wallace v. Swepston, 74 Pa. — Wyant v. Dieffendaffer, 3 Ark. 520, 86 S. W. 398, 109 Am. St. Grant Cas. 334; Appeal of Bones, 87 Eep. 94. Pa. (3 Osey) 493. Ind. — ^Wilkinson v. Wilkinson, 33 S. C. — Long v. Oason, 4 Eich. Eq. Ind. App. 540, 71 N. E. 169; Lam- 60. bert V. Billheimer, 125 Ind. 519, 25 Tenn. — Jackson v. Crutchfield, 111 N. E. 451; Peelle v. State, 118 Ind. Tenn. 394, 77 S. W. 776. 512, 21 N. E. 388. Fa.— Magruder v. Goodwyn's Ga. — ^Lane v. Lane, 87 Ga. 268, 13 Adm'r, 3 Pat. & H. 561. S. E. 335; Byne v. Anderson, 67 Ga. 75. Anthony v. St. Louis, etc., Ry. 466; Hobbes v. Cody, 45 Ga. 478. Co., 108 Ark. 319, 157 S. W. 394; La. — Succession of Richmond, 35 Kirby's Dig. Ark. § 6390. La. Ann. 858; Sewell v. McVay, 30 76. Morrell v. Morgan, 65 Cal. 575, La. Ann. 673. 4 Pae. 580. Md.— State v. Eeilly, 88 Md. 63, 41 77. Cobb v. Wrightsville & T. E. Atl. 131; State v. Henderson, 54 Md. Co., 139 Ga. 377, 55 S. E. 863. 332. 78. Matt v. Matt, 183 111. App. 312 ; Miss. — Fearn v. Shirley, 31 Miss. Kurd's Eer. III. St. 1913, c. 83, § 301, 64 Am. Dec. 575. 1086 Statutes or Limitation. a prosecution for bastardy must be begun within two years from tlie time of the birth of the child.''^ To a complaint for slander, al- leging the infancy of the plaintiff, it is not a good answer that the defendant has not been guilty within two years next before the commencement of the action.*' In Iowa, an infant injured on u defective sidewalk must sue within three months, the same as other persons, where no notice has been served on the municipality, since the section of the general statute of limitations, providing that the times limited for actions shall be extended in favor of infants, etc., does not apply.*^ In Kansas, a cause of action in favor of an infant, for personal injuries sustained, may be brought at any time during infancy, and will in no event be barred by the two-year limitation until one year after the disability of infancy has been removed.*^ An infant who becomes possessed of a note before maturity may prosecute an action for the recovery of the amount due thereon at any time prior to the expiration of one year from the date of the removal of the disability of infancy.^ In Kentucky, one who is an infant when a right of action accrues has the same length of time to sue after becoming of age that he would have had had he been of age when the cause of action ac- crued ; the statute expressly providing as to infants entitled to sue that action may be brought within a like number of years after removal of their disability that is allowed to a person having no such impediment.** In Louisiana, the prescription of one year, 21 (Jones & A. Ann. St. 1913, par. rehearing denied 25 Ky. Law tlep. 7216). 1104, 77 S. W. 184; Webb v. Webb, 79. State v. Pavey, 83 Ind. 543. 35 Ky. Law Eep. 1476, 78 S. W. 166, 80. Sunman v. Brewin, 52 Ind. 140. rehearing 23 Ky. Law Eep. 1057, 64 81. Gushing v. City of Winterset, S. W. 839, denied; Louisville & N. 144 Iowa 260, 122 N. W. 915. E. Oo. v. Sanders, 86 Ky. 259, 5 S. 82. Missouri Pac. Ry. Co. v. W. 563. Cooper, 57 Kan. 185, 45 Pac. 587. Eents accruing during the minor- 83. Tinsley v. Pitts, 10 Kan. App. ity of the landlord are not barred by 321, 62 Pac. 536. lapse of time. Pugh's Heirs v. Bell's 84. Low V. Eamisey, 135 Ky. 333, Heir's, 24 Ky. (1 J. J. Mar.) 398. 123 S. W. 167, Ky. St. § 2535 (Eus- Plaintiff's action having been sell's St. § 191) ; Jones v. Comer, 25 brought soon after he became of age, Ky. Laiw Bep. 773, 76 S. W. 393, he is not limited to a recovery for Disabilities in Personal Actions. 1087 in an action for damages under Civ. Code, art. 3541,*^ and the prescription of three years, on a claim for services,^^ runs against minors, reserving, however, to them, their recourse against their tutors or curators. Notes payable to the order of minors, not being transferable by indorsement or delivery so long as the minor- ity lasts, are not subject to the prescription of five years.'^ In Massachusetts, the statute authorizing the taking of land for the abatement of a nuisance and providing for the recovery of dam- ages makes no exceptions in favor of minors. ^^ In Michigan, where a person, soon after coming of age, sues for an assault dur- ing infancy, he is not at fault for not suing while under dis- ability.*^ In New York, under Code Civ. Proc, § 383, subd. 5, providing that an action for negligent personal injury must be brought within three years after the accrual of the cause of action, and section 396, providing that the time of the disability of infancy is not a part of the time limited for commencing the action, except that the time so limited cannot be extended more than one year after the services rendered within five years 89. Thurstin v. Luce, 61 Mich. 392, before the action was brought, as Z8 N. W. 103. limitation did not run against him Where a father, who is the proper during his minority. Myers v. Korb, person to sue for the seduction of his 21 Ky. Law Rep. 163, 50 S. W. 1108. adopted daughter, himself seduces 85. Gfoodwin v. Bodcaw Lumber her, her right of action extends for Co., 109 La. 1050, 34 So. 74. six years after she reaches her ma- 86. Copse V. Eddins, 15 La. Ann. jority. Watson v. Watson, 53 Mich. 528. 168, 18 N. W. 605, 51 Am. Rep. 111. 87. Bird v. Pate, i La. Ann. 225. How. St. § 6332, limiting the lia- 88. Sweet v. City of Boston, 186 bility of sureties on guardian's bonds Mass. 79, 71 N. E. 113. to actions commenced within four A note given by an infant, and years from the discharge of the guar- signed in the presence of an attest- dian, has no application to oondl- ing witness, is barred by the statute tional orders for such discharge; and, of limitations (Rev. St. c. 120, § 4), if at the time of such discharge the if the action is brought thereon by ward is an infant, he may bring such the original payee. The fact of the suit at any time within four years maker being an infant does not take after attaining his majority. Landon the ease out of the statute. Earle v. v. Cornet, 63 Mich. 80, 28 N. W. 788. Reed, 51 Mass. (10 Mete.) 387. 1088 Statutes of Limitation. disability ceases, an infant, reaching full age before the three- year limitation has expired, must commence his action for a per- sonal injury either before the expiration of that period, or within one year after reaching full age, and the statutes do not add a year to the regular period of limitation.^" The common-law pre- sumption of payment does not begin to run against one until he becomes of age, in North Carolina.^^ In Mississippi, the rule that the statute of limitations does not run against actions on official bonds of trustees during the infancy of the beneficiaries applies equally to actions at law and in equity.^^ The Pennsylvania stat- ute, providing that every action for personal injuries not re- sulting in death must be brought within two years from the in- jury, and making no exceptions in favor of persons under dis- ability, applies to infants.'^ In Texas, an infant has a right to bring an action for personal injury within two years after attain- 90. Preusse v. Childwold Park Hotel Co., 134 App. Div. 383, 119 N. Y. Supp. 98. In ease of infancy the running of the limitation of one year provided by laws 1886, c. 572, § 1, as to an action against a eity for negligent personal injuries, is suspended by reason of the exception contained in Code Civ. Proc, § 396. Conway v. City of New Yorli, 139 App. Div. 446, 124 N. Y. Supp. 660. The 10-year statute of limitation against an action to set aside a judg- ment begins to run from the time of the sale of the property, and not from the date of the majority of in- fant defendants, whose right of ac- tion would be extended only one year after their majority by Code Civ. Proc., § 396. Ford v. Clendenin, 137 N. Y. Supp. 54, judg. aff'd 140 N". Y. Supp. 1119. A cause of action accrues on a void- able obligation of an infant for a debt contracted during minority when he elects to xatify it after he becomes of age, and not until then will the statute begin to run against the claim. Halsey v. Reid, 4 Hun 777. 91. Willcerson v. Dunn, 52 N. C. 125. 92. Pearson v. McMillan, 37 Misa. 588. As to rule in different States as to actions on the official bonds of , ad- ministrators, executors, and trustees, see: Md. — Welch v. State, 5 Har. & J. 369. Mo. — State ex rel. Farley v. Welsh, 175 Mb. App. 303, 162 S. W. 637. H. C— Threadgill v. West, 35 N. C. 310; Lafferty v. Young, 125 N. 0. 296, 34 S. E. 444. 8. C— Lanier v. Griffin, 11 S. C. 565. 93. Peterson v. Delaware River Ferry Co., 190 Pa. 364, 42 Atl. 955. Disabilities in Peesonal Actions. 1089 ing his majority.'* And in New Hampshire, a right of personal action accruing to an infant is not barred by the statute of limi- tations until two years after the disability ceases.^^ In Missouri, suit may be begun by a child after attaining his majority, if within one year.^^ In Washington, under a statute providing that the three-year limitation for an action for seduction shall not com- mence to run while the person entitled to bring the action is under the " age of twenty-one years," a female may bring such an ac- tion at any time within three years after she becomes twenty-one years of age, though by another statute a female reaches her ma- jority at eighteen years.®' § 238a(3). Actions for recovery of real property. In Alabama, where a claim of ownership of land by defendants was not set up until after the death of plaintiffs' ancestor, through whom they claimed title, and at that time plaintiffs were minors, the bar of the statute of limitations would not become effective until three years after the removal of the minors' disability.®^ In Arkansas, the statutes of limitation, in actions for the recovery of lands, do not begin to run against minors until they become of age, and they may bring their action within three years after full age.®' In California, where a right of action to recover land accrues during the minority of the owner, the statute of limitations does 94. Missouri, etc., Ry. Co. v. Scar- 99. Kessinger v. Wilson, 53 Ark. borough, 29 Tex. Civ. App. 194, 68 400, 14 S. W. 96; Siiums v. Cumby, S. W. 196. 53 Ark._418, 14 S. W. 623; Falls v. 95. Frost r. Eastern E. Co., 64 N. Wright, 55 Aik. 663, 18 S. W. 1044, H. 230, 9 Atl. 790, 10 Am. St. Rep. 39 Am. St. Rep. 74; Thonias v. 396; N. H. Gen. Laws, c. 221, § 7. Sypert, 61 Ark. 575, 33 S. W. 1059; 96. Rutter v. Missouri Pac. Ry. Harris v. Brady, 87 Ark. 438, 113 S. Co., 81 Mo. 169; Mo. Rev. St. 1679, W. 974; Carroll v. Carroll, 93 Ark. §§ 3121, 2125. 625, 121 S. W. 947. Females of the 97. Gates v. Shaffer, 72 Wash. 451, age of 18 years are considered as of 130 Pac. 896; Wash. Rem. & Bal. full age for all purposes. Brake v. Code, §§ 159, 8743. Sides, 95 Ark. 74, 138 S. W. 572. See 98. Bradford v. Wilson, 140 Ala. also, Martin v. Conner (Ark.), 171 633, 37 So. 295; Code 1896, § 2807. S. W. 135. Bee Riggs v. Fuller, 54 Ala. 141. 1090 Statutes of Limitation. not begin to run against the action until the owner attains ma- jority, when he may convey the land, and the grantee may main- tain an action against the disseisor, entering during the minority of the owner, at any time within five years after the disability terminates.^ Under Georgia Code, § 2686, an infant cannot dis- affirm his deed when more than seven years have passed since he attained majority.^ The limitation act of Illinois runs against minors, unless within three years after becoming of age or attain- ing majority (eighteen years of age in the case of females) they bring suit to recover the land and refund the taxes paid thereon.* The Indiana statute, which relieves a party from a judgment taken against him through excusable neglect, must be considered with the statute, which provides that any person under legal disability may bring his action within two years after the disability is re- moved, and an infant defendant in a proceeding to foreclose a tax 1. Le Eoy v. Reeves, 5 Sawy. (U. S.) 103. 2. Nathans v. Arlcwright, 66 Ga. 179. 3. Safford v. Stubte, 117 111. 389, 7 N. E. 653; Hodgen v. Henrictsen, 85 ,111. 259. After the death of a married woman owning land, her children had no right of entry or of action for the land until the death of the husband, and the termination of his estate by the curtesy, and before that time the statute of limitations did not run against them, and laches was not im- putable to them; and, by platting a town on tlie land, the husband and his grantees could convey no greater interest than he possessed, and the possession of the streets by the cor- poration during his life was not ad- verse to the right of the heirs. Or- thwein v. Thomas, 127 111. 554, 21 N. E. 430, 4 L. E. A. 434, 11 Am. St. E.ep. 159. Infant remainder-men who arc grantees of the life tenant may re- cover the land, against persons in ad- verse possession, within two years after becoming of age, under Kurd's Kev. St. 1897, p. 1048, though, before conveyance to them, the statute of limitations would have barred the life tenant's right of recovery, as the statute does not transfer the title, but merely bars a right to recover the land. Field v. Peeplos, 180 111. 376, 54 N. E. 304. Where an administratrix purchases land at her own sale, and remains in open, exclusive, and adverse posses- sion for 24 years, a bill for relief brought by an heir six years after he attained his majority was barred by 2 Starr & C. Ann. St. 1896, p. 3620, par. 8, requiring such actions to be brought within three years after at- tainment of majority. Mason v. Odum, 210 111. 471, 71 N. E. 38-6, 102 Am. St. Rep. 180. Disabilities in Peesowal Actions. 1091 lien may within two years after majority proceed by motion under the former statute to set aside a default judgment and sales re- sulting therefrom and redeem the property.* The provision of the Iowa statute, providing that the " limitation of actions for the recovery of real property shall not apply to minors, so far as to prevent them from having at least one year after their majority within which to commence such actions," does not operate to sus- pend the statute of limitations as to such actions during infancy, but merely gives one year after majority to bring suit if the period has expired f and they have more time if the law would give it to an adult.^ In Kansas, an action to recover real property of a, minor must be brought within two years after the disability of infancy is removed.'' Under the Kentucky statute, one who is an infant when his right of action to recover real property accrues, may bring his action within three years after his disability is re- moved.^ In Louisiana, the statute, prescribing in five years, as 4: M'acy v. Lindley, 49 Ind. App. 469, 99 N. E. 790. Where the grantee in a deed abso- lute on its face, but intended as a mortgage, fraudulently conveys the lands to another having knovpledge of the facts, the 15-year statute of limitation applies to an action for partition brought by the widow and heirs of the deceased grantor in such deed, in which she joined, but cannot be pleaded against the minor heirs of such grantor. Caress v. Foster, 63 Ind. 145. 5. Matheiws v. Stephens, 39 Iowa 279; Hubbird v. Gtoin, 137 Fed. 833, 70 C. C. A. 330. See also, Lloyd v. Bunce, 41 Iowa 660. 6. Campbell v. Long, 30 Iowa 383. 7. Howbert v. Heyle, 47 Kan. 58, 37 Pac. 116; Delashmutt v. Parrant, 39 Kan. 548, 18 Pao. 712; Scantlin V. Allison, 33 Kan. 376, 4 Pao. 618. A right of action in ejectment for the recovery of land sold by an ad- ministrator, brought by an heir of a deceased person, is saved, under Gen. St. 1897, e. 95, § 11, to a minor who may sue within two years after the disability of infancy has been removed. Thompson v. Eurge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Eep. 369. 8. Salyer v. Johnson, 33 Ky. Law- Eep. 709, 107 S. W. 310; Ky. St. 1903, § 2506; Vincent v. Blanton, 37' Ky. Law Eep. 489, 85 S. W. 703 ^ Sharp V. Stephens' Committee, 21 Ky. Law Rep. 687, 53 S. W. 977; Call V. Phelps' Adra'r, 20 Ky. Law Eep. 507, 45 S. W. 1051; Willson v. Louis- ville Trust Co., 102 Ky. 533, 19 Ky. Law Eep. 1590, 44 S. W. 131; Hof- fert V. Miller, 86 Ky. 573, 6 S. W. 447; Gates v. Jacob, 40 Ky. (1 B. Mon.) 306; Pugh v. Bell, 18 Ky. (3 B. Mon.) 125, 15 Am. Dec. 142. An infant's cause of action to set 1092 Statutes of Limitatioit. to all persons, actions to set aside public sales on account of any informalities connected with them, and barring an action to re- scind a partition, runs against minors from the time of their ma- jority.' Under the express provisions of the Missouri statute, persons who were minors when the statute of limitations began to run had three years after they reached the age of twenty-one in which to sue for the recovery of lands.^** Occupation of land for three years by a purchaser at tax sale is no bar to an action of ejectment by a minor to recover his interest in the land, in Miss- issippi.-'^ In Nebraska, the statute of limitations as to adverse possession does not run against persons while under disability, such as minors ; and an action to recover real estate, brought within ten years after such minors arrive at age, is commenced in time.^ In New York, an action to recover an interest in real estate, which aside a deed on the ground of infancy accrued when she attained her ma- jority, though she was only a remain- derman. Henson v. Gulp, 157 Ky. 442, 163 S. W. 455. Under Ky. St. § 2525, children of a devisee taking a remainder are en- titled to 10 years from the time they arrived at age to have the will pro- bated in that State. Thompson v. Penn, 149 Ky. 158, 148 S. W. 33. 9. Doucet V. Fenelon, 120 La. 18, 44 So. 908; Sewall v. Hebert, 37 La. Ann. 155; Eraser v. Zylicz, 29 La. Ann. 534; Gayoso de Lemos v. Garcia, 1 Mart. N. S. (La.) 324. But the prescription against attacks on par- tition sales has no application to the Sale of the interests of a minor alone, in property held in common with otliers; such sale being invalid. Fahey v. Fahey, 128 La. 503, 54 So. 973. Act No. 53 of 1912, relating to actions to annul a private sale of realty, applies to minors. McNamara V. ]Vl',irx, 136 La. 159, 66 So. 7C4. 10. Hinters v. Hinters, 114 Mo. 26, 21 S. W. 456; Ogle v. Hignet, 161 Mo. 47, 61 S. W. 596, Rev. St. 1889, § 6767. Possession of land taken during disability of infants is insufficient to support a plea of the statute of limi- tations. Sliocr V. Owens, 241 Mo. 319, 145 S. W. 428. Under Rev. St. 1909, § 11, 506a, minors have the right to sue within two years after the removal of their disability to recover lands sold at a tax sale. Gulley v. Waggoner, 355 Mo. 613, 164 S. W. 557. 11. Wolfe V. Brown (Miss.), 11 So. 879. As to application of the statute to a bill to enforce a trust in land, see Tippin V. Coleman, 59 Miss. 641. As to application of the 10-year statute bar from suing for partition, sea Anglin v. Broadnax (Miss.), 52 So. 865. 12. Albers v. Kozeluh, 68 Neb. 522, 97 N. W. 646, aff'g 68 Neb. 532, 94 N. W. 521; Howe v. Blomenkamp, 88 Neb. 389, 129 N. W. 539. Disabilities iw Pbesonal Actions. 1093 accrued to the plaintiff during infancy, is not barred by the statute of limitations, if eommenced within twenty years after the plain- tiff became of age, though more than ten years thereafter and more than twenty years after the cause of action accrued.^^ Thus, where a right of action against an elevated railway for injuries to property abutting on a street resulting from the construction and operation of the railway in the street accrued on December 30, 1878, to infant owners of the property, the oldest of whom became of age August, 20, 1881, the right to bring the action was not on February 21, 1899, barred by the twenty-year statute of limitations. Code Civ. Proc, § 375, providing that if a person who might maintain an action to recover real property, etc., is, when his cause of action first accrues, within the age of twenty-one years, the time of such a disability is not a part of the time limited in this title for commencing the action, except that the time so limited cannot be extended more than ten years after the disability ceases.-'* In North Carolina, though an infant, after accrual of her cause of 13. Darrow v. Calkins, 154 N. Y. after the infant attained his major- 503, 49 N. E. 61, 48 L. E. A. 299, ity. O'Donohue v. Smith, 130 App. 61 Am. St. Rep. 637, aff'g order 6 Div. 214, 114 N. Y. Supp. 536, afT'g App. Div. 28, 39 N. Y. Supp. 527; judg. 57 Misc. Rep. 448, 109 N. Y. Howell V. Leavitt, 95 N". Y. 617; Supp. 929. Hoepfner v. Sevestre, 56 Hun 640, 10 Where executors holding land in N. Y. Supp. 51. trust for infants make a, void deed 14. MuUer v. Manhattan Ey. Ck)., thereof, and the grantee takes pos- 195 N. Y. 539, 88 N. E. 1126, afT'g session, if the executors do not con- judgs. 134 App. Div. 295, 108 N. Y. tinue to hold tlie legal title the in- Supp. 852, and 53 Misc. Rep. 133, 102 fants may at once maintain an ac- N. Y. Supp. 454. See also, Goggin v. tiou for the land; and, under limita- Manhattan Ry. Co., 124 App. Div. tions provided by Code Civ. Proc., €44, 109 N. Y. Supp. 83, modifying §§ 365, 375, the action cannot be judg. 54 Misc. Rep. 472, 104 N. Y. maintained when the grantee has Supp. 548 ; Taggart v. Manhattan been in possession more than 20 years Ey. Co., 57 Misc. Rep. 184, 109 N. Y. in all, and more than 10 years after Supip. 38. the infants reached majority. Brown Code Civ. Proc., §§ 375, 396, do not v. Doherty, 93 App. Div. 190, 87 N. apply to an action to set aside a d«ed Y. Supp. 563, aff'd 185 N. Y. 383, executed during infancy, since the 78 N. E. 147, 113 Am. St. Rep. 915. cause of action therefor accrued only 1094 Statutes of Limitation. action for real estate, had a guardian for seven years before her marriage, which was before her majority, she is not barred by failure to sue for the land while under guardianship; it being provided by Code, § 148, that if one entitled to sue for real estate is under twenty-one years of age, or is a married woman, such per- son may, notwithstanding the statute of limitations, commence action within three years after full age or discoverture.-^^ In Ohio, a person entitled to bring an action for the recovery of real estate, who is, at the time the cause of action accrues, within the age of minority, etc., may after the expiration of twenty-one years, bring such action within ten years after such disability is re- moved.^" In Oklahoma, where the purchaser of land at a void guardian's sale went into possession and he and those claiming under him remained continuously in possession thereafter, an action by the minor to recover such land is barred, if not brought within five years after the recording of the guardian's deed, or within two years after the removal of plaintiff's disability." In Pennsylvania it is held that the uniform doctrine of the cases on the statutes of limitation which follow Act 21 James I., c. 16, § 2, in allowing a person under disability when a right of action for real property accrues, or his heirs, to sue within ten years after expiration of the twenty-one years prescribed for ordinary plaintiffs, is that, if twenty years have elapsed since the right of action accrued, and ten of those years have been free from dis- ability, the right of entry is barred. In other words, the owner is not entitled to twenty years after the disability ceases within which to bring his action, but to ten years only if, at the expiration of the latter period, twenty years have elapsed since the right of entry or action first accrued ; and if the owner dies, the heirs, if under disability, have no longer time for bringing the action or making 15. Cross V. Craven, 120 N. C. 331, 12 Ohio St. 309. See also, Paschall 26 S. E. 940; Clayton v. Rose, 87 N. v. Hinderer, 28 Ohio St. 568. C- 106. 17. IDodson v. Middleton, 38 Okl. 16. Lanning v. Brown, 84 Ohio St. 763, 135 Pac. 368; Comp. Laws 1909, 385, 95 N. E, 921; Walker v. Knight, §§ 5547-5549. Disabilities in Peesowal Actions. 1095 the entry than he would have had if he had lived.^' The South Carolina statute provides that, if a person who is entitled to com- mence an action for the recovery of real property was laboring under the disability of infancy at the time the action accrued, the time during which such disability shall continue shall not be deemed any portion of the ten years limited for the commence- ment of the action.^^ It is held under the Tennessee statute that, where the owner of land in possession of another was a minor, such disability did not prevent the initiation of adverse posses- sion during minority, but only authorized suit within three years after he became of age, so that where the full seven years possession had terminated before the removal of the disability, the owner's right would be barred, unless suit was brought within three years after the termination of the disability, regardless of whether the adverse possession was continued of not.^" In Texas, a minor who delays suit more than ten years after attaining majority is bar- 18. Henry v. Carson, 59 Pa. (9 P. F. Smith) 297. The infancy of the beneficiaries does not prolong the time within which an action to enforce a resulting trust in land may be brought under Act 1856, § 6. Way v. Hooton, 156 Pa. 8, 26 Atl. 784. 19. Maccaw v. Crawley, 59 S. C. 342, 37 S. E. 934; Kice v. Bamberg, 59 S. C. 498, 38 S. E. 209; Code Oiv. Proc, § 108. See Goforth v. Goforth, 47 S. G. 126, 25 S. E. 40; Johnson v. Cobb, 29 S. C. 372, 7 S. E. 601. Under Code 1873, § 111, as amended (15 St. at Large, p. 497), an aetion for possession of land vested in a minor must have been brought within five years after his disaibility was removed. Glover v. Floyd, 76 S. C. 392, 57 S. E. 25. Code 1903, § 426, providing that no action to recover land sold by a sheriff shall be brought after two years is affected by the disability of infancy of plaintiffs. Jones v. Boy- kin, 70 S. C. 309, 49 S. E. 877. 20. Dewey v. Sewanee Fuel & Iron Co., 191 Fed. 450; Code Tenn. 1858, §§ 2763, 2764, as amended by Acta Tenn. 1895, c. 38, §§ 1, 2 (Shannon's Code, §§ 4456, 4457) and § 2757 (4448). The legal title to the lands of a minor is in the minor, and not in the guardian, and the minor's right of action to recover the land from one who had illegally purchased it from the guardian accrues the mo- ment the wrongful act is committed, and continues during minority, and the statutory period thereafter, and its accrual is not postponed until the termination of the guardianship. Hale v. Ellison (Tenn. Ch. App.), 59 S. W. 673. 1096 Statutes of Limitation. red of the right to recover land.^^ In Vermont, the statute of limi- tations runs against an infant having only color of title to land.^ In Washington, thai ten-year statute of limitations, governing ac- tions for the recovery of real property, is unavailable to defeat the claim of one who is a minor at the time his right of action ac- crued, and who asserts such claim within the prescribed period after attaining his majority.^^ Under the Wisconsin statute pro- viding that any person under disability may commence an ac- tion for the recovery of realty within five years after the dis- ability ceased, an infant is not entitled to such period after at- taining his majority, within which to commence an action to cancel an administrator's deed, as such an action is not one for the recovery of realty.^* The three-year limitation prescribed by the Utah statute, within which an action may be brought by a per- son claiming under a decedent to set aside an executor's conveyance 21. Wiess V. Goodhue, 98 Tex. 274, 83 S. W. 178 ; McMasters v. Mills, 30 Tex. 591. Where an appeal in an action of trespass to try title is dismissed by a judgment rendered during the min- ority of the plaintiffs, limitation be- gins to run against them from the date of the removal of their disabil- ity. Martin v. Wayman, 38 Tex. 649. 22. Soule V. Barlow, 49 Vt. 329. 23. May v. Sutherlin, 41 Wash. 609, 84 Pac. 585; Ballinger's Ann. Codes & St., §§ 4796, 4797, 4809. Plaintiff in ejectment is not limited in recovery of damages to the six years next before the commencement of the action, where, at the time de- fendant wrongfully took possession of the land in suit, plaintiff wais a minor. Mabie f. Whittaker, 10 .Wash. 656, 39 Pac. 172. Exemptions of infants from the operation of statutes of limitations depends upon express statutory pro- visions, aad not upon any constitu- tional provisions requiring such ex- emptions, and hence the Legislature could enact laws requiring actions for land possessed adversely by an- other under a title from one author- ized to sell under an order or decree of court to be brought within seven years, without excepting infants from its operation. Sohlarb v. Cast- aing, 50 Wash. 331, 97 Pac. 289. 24. Gibson v. Gibson, 108 Wis. 102, 84 N. W. 22. An action to recover real estate in the adverse possession for 10 years of one claiming under color of title is barred, though brought by minors. Or those under guardianship, or be- cause of fraud. Steinberg v. Salz- man, 139 Wis. 118, 120 N. W. 1005, under Wis. St. 1898, §§ 4211, 3212. 4215. Disabilities in Peesonal Actions. 109Y in probate proceedings, runs during the minority of the com- plainant.^^ § 238a (4). Effect of marriage. In Kentucky, a cause of action by a minor female ward against her guardian for a settlement of his accounts accrues on her mar- riage with an adult husband capable of suing to enforce her rights ;^^ and the wife's coverture is no bar to limitations against the right of both to an accounting and settlement.^^ In Louisiana, emancipation by marriage does not terminate the suspension of prescription as to minors, which continues until the actual ma- jority of such minor f^ but, where a minor has been emancipated by judgment of court, under Code, art. 385, prescription against his right of action against his tutor for a settlement begins from the date of his emancipation, and not from his majority. ^^ In South Carolina, persons under the age of twenty-one are allowed by the statute to bring personal actions within four years after coming of age, and the marriage of the feme infant will not merge the dis- ability of infancy in that of coverture, so as to require her and her husband to bring their action within five years after marriage.^ In Texas, on the marriage of a female under twenty-one years of age, she becomes of full age, and the statute then begins to run against her;^^ and begins to run in her guardian's favor.^^ § 238a (5). Effect of absence or nonresidence. Lapse of time does not operate against minors, and the statute 25. Williamson v. Beardsley, 137 31. White v. Latimer, 12 Tex. 61; Ted. 467, 69 0. C A. 615. Thompson v. Cragg, 24 Tex. 582; 26. Finnell v. O'Neal, 76 Ky. (13 Smith v. Powell, 5 Tex. Civ. App. Bush) 176. 373, 23 S. W. 1109; Taylor v. Bry- 27. Mouser v. Nunn, 142 Ky. 656, mer, 17 Tex. Civ. App. 517, 43 S. W. 134 S. W. 1148. 9'99, the statute of limitations as to 28. Barrow v. Wilson, 39 La. Ann. land cannot run against a woman un- 403, 2 So. S09. til she becomes of age, or until she 29. Proctor v. Hebert, 36 La. Ann. marries. D. Sullivan & Co. v. E,am- 250. sey (Tex. Civ. App.), 155 S. W. 580. 30. Robertson v. Wurdeman, 2 Hill 32. Parish v. . Alston, 65 Tex. 194. (S. C.) 324. 1098 Statutes of Limitation. of limitations does not run against them, during the time they re- side in a different state, and having no knowledge of their rights.'' In Ohio, where, at the time a will is admitted to probate, a person entitled to contest its validity is under the disabilities of infancy and absence from the State, his action is not barred until the ex- piration of the statutory period after the longer continuing dis- ability is removed.'* In Louisiana, the Code suspends prescription during minority and it does not except from suspension the pre- scription of fifteen years. This suspension extends to nonresidents, as well as to resident, minors.'^ In South Carolina, minors have five years after their coming of age to prosecute their claims to land and four years to prosecute personal actions, whether within or out of the State when coming of age.'^ Under the Kentucky statute, where a distributee was a nonresident infant at the time of distribution, he may enforce his rights to distribution by action on the executor's official bond within five years after arriving at the age of twenty-one.'^ § 238,a(6). Effect of action during disability. Under ISTew York Code Civ. Proc, § 396, declaring that if the person entitled to maintain an action is, when the cause of action accrues, a minor, insane, or imprisoned, the time of such disability is not a part of the time limited for commencing an action, except that the time limited cannot be extended more than five years by any such disability, except infancy, or in any case more than a year after the disability ceases, commencement of an action by an infant's guardian does not set the statute running.'^ Under the 33. Ware v. Brush, 1 McLean (U. 145; Leonard v. Fluker, 4 Rob. (La.) S.) 533, affirmed Brush v. Ware, 40 148. U. S. (15 Pet.) 93, 10 L. Ed. 672; 36. Edaon v. Davis, 1 (MeCord) Killmer v. Wuahmer, 74 Iowa 359, S. C. 555; Papot v. Trowell, 8 Rich. 37 N. W. 778. Law (S. C.) 234. 34. Powell V. Koehler, 52 Ohio St. 37. Smith v. Hardesty, 2S Ky. 103, 39 N. E. 195, 49 Am. St. Ecip. Law Rep. 1266, 83 S. W. 646; Ky. 705, 26 L. R. A. 480. St. 1903, §§ 2521, 2550. 35. Smith v. McWaters, 7 La. Ann. 38. Geibel v. Elwell, 91 Hun (N. Y.) 550, 36 N. Y. Supp. 238. DisABixiTiES IN Peesonal Actions. 1099 New Jersey statute, authorizing suing for an injury to a minor child at any time between the accrual of the cause of action and the expiration of two years after its majority, the bringing of an ac- 4;ion during minority, which was dismissed, did not start the statute to running, so as to bar another action in two years there- after.^' Under the Kentucky statute, an infant may sue at any time after slanderous words are uttered until the expiration of one year after arriving at the age of twenty-one years; and because the infant fails to sue within one year after the slanderous words are uttered, she is not obliged to wait and sue as an adult.^" In Mississippi, where minors who have sued by their next friend at- tain their majority after the next friend's death, complainants may appear as adults and prosecute the suit, ahd, the suit having been pending all the time, proceedings therein by complainants are not affected by any statute of limitations, though nothing was done for many years after the death of the next friend.^^ In Tennessee, a person injured when an infant may elect to sue by prochein ami at any time during minority, or alone within a year after majority/^ In Texas, the bringing of an action by the next friend of a minor, and the dismissal thereof, does not cause limi- tations against a subsequent action to commence to run, since it does not remove the disability of the minor, as he has no control over the suit.^^ 39. Snare & Triest O. v. Friedman, against infants, neither the appoint- 169 Fed. 1, 94 C. 0. A. 369. See 3 ment of a next friend, nor the ac- Gen. St. N. J. 1895, p. 1975, § 4. tual oommencement of an action In Alabama, where an infant brings which is afterwards discontinued, an action by next friend which is dis- will operate to set the statute run- missed for failure to answer interr ning. Keating v. Michigan Cent. R. rogatories, such infant was held not Co., 94 Mich. 219, 53 N. W. 1053. barred by the one-year statute of limi- 40. Hopkins v. Virgin, 74 Ky. ( 11 tations by such dereliction on the Bush) 677; Kentucky Gen. St. art. part of the next friend, being pro- 4, c. 71, § 3. tected by Code 1907, § 4846. Mc- 41. Tucker v. Wilson, 68 Miss. 693, Laughlin v. Beyer, 181 Ala. 437, 61 9 So. 898. So. 63. 42. Whirley v. Whiteman, 38 Tenn. Under the MioWgan statute (How. (1 Head) 610. Ann. St., § 8718), saving the running 43. Galveston, etc., Ey. Co. v. of the statute of limitations as Washington, 25 Tex. Civ. App. 600, 1100 Statutes of Limitation. § 239. Insane persons, Non Compotes, etc. Where the statute excepts from its operation claims in favor of a person who is insane, it does not begin to run until he or she is restored to sanity and knowledge of the existence of the claim.'*^ Persons who are deaf and dumb, and have been so from birth, are prima facie non compos^ and the statute of limitations, where that class are excepted, does not run against them, unless they are shown to have sufficient intelligence to know and comprehend their legal rights and liabilities.^^ In order to be effectual to suspend the operation of the statute, the insanity must have existed at the time when the right of action first accrued j*" and if the statute began to run upon the claim before the plaintiff became non compos, its operation is not checked because he subsequently be- came insane.^'' Thus, in a case where, at the time a cause of action 63 S. W. 538, judg. aff'd 94 Tex. 510, 63 S. W. 534, the bringing of such aa action does not create the relation of guardian and ward, so as to start the running of limitations against the minor. See Tex. Rev. St. art. 8498U. 44. Dicken v. Johnson, 7 Ga. 484; Clark's Ex'r v. Trail's Adm'rs, 58 Ky. (1 Met.) 35; Little v. Downing, 37 N. H. 355. In Sasser v. Davis, 37 Tex. 656, it was held that the stat- ute requiring all actions for per- sonal injury to be brought within one year, did not apply to a case where by the injury the person in- jured was rendered insane, and his insanity prevented him from originat- ing a suit within the period named. See De Arnaud v. United States, 151 U. S. 483, 14 Sup. Ct. 374, 38 L. Ed. 344, 39 Ct. CI. 555; Eugan v. Sabin, 53 Fed. 415, 3 C. C. A. 578, 10 U. S. App. 519; Grady v. Wilson, 115 N. C. 344, 20 S. E. 518, 44 Am. St. Eep. 461; Moore's Lessee v. Arm- strong, 10 Ohio 11, 36 Am. Dec. 63, 71, n. Those who fraudulently deal with the estate of a lunatic or idiot can derive no advantage from the mere lapse of time while they con- tinue the fraud, if the disability con- tinues, and the laches of an imbecile's next friend in failing to bring suit promptly i« nnt impnta.hlo to him. Kidder v. Houston (59 N. J. Eq.), 47 Atl. 336. 45. Oliver v. Berry, 53 Me. 306, 87 Am. Dec. 547. 46. In AUis v. Moore, 84 Mass. (3 Allen) 306, it was held that. If the owner of land has been disseised, his subsequent insanity does not prevent the disseisor's title from maturing by an adverse occupancy for the statu- tory period. See also, Adamson v. Smith, 3 Mill (S. 0.) Const. 369, 13 Am. Dec. 665, where it was held that the statute was not checked in ita operation on a note because, after it became due, the payee became non compos. 47. Clark's Ex'r v. Trail's Adm'rs, Disabilities in Personal Actions. 1101 accrued, the person in whose favor it existed was insane, it was held that the statute did not begin to run during the existence of such insanity, but that immediately upon his restoration to sanity the statute attached to the claim, and having once begun to run thereon, it was not checked by the circumstance that before the bar became complete his lunacy returned.*^ § 239a (1). Insanity and other incompetency. Where a vendor has been induced to sell by fraud, and has failed to rescind the sale after discovery, the facts that he was at the time credulous, and so feeble in mind and body that he was unfit to transact business, are not sufficient to prevent the running of the statute, since such disability is not included among those to which the statute expressly gives this effect.*' In Alabama, under the direct provisions of the statute fixing a three-year limitation for entries on land and for action similar thereto, the period of dis- ability of one non compos mentis is exempted.^" In Arizona, an action by an executor to set aside the fraudulent transfer of prop- erty of a corporation, in which testator was stockholder, was not barred, where testator was of unsound mind when the fraudulent transaction took place, and continued so until his death.^^ In Colorado, where a grantor was insane at the time of the execution of the deed and continuously thereafter until his death, limita- tions against an action to recover the land would not run as supra; Allis v. Moore, supra; Adam- the length of time necessary to per- son V. Smith, supra. feet the bar of the statute of limita- 48. Clark's Ex'r v. Trail's Adm'rs, tions, the beneficiary will be barred, supra. even though he was all the time un- 49. Rugan v. Sabin, 53 Fed. 415, 3 der the disability of insanity; and C. 0. A. 578, 10 U. S. App. 519. this applies as well to his equitable 50. Bradley v. Singletary, 178 Ala. as to his legal interests. Molton v. lOS, 59 So. 58, under Code 1907, § Henderson, 63 Ala. 436. 4846; Fowler v. Prichard, 148 Ala. 51. Fleming v. Black Warrior Cop- 261, 41 So. 667. per Co. Amalgamated, 15 Ariz. 1, 136 Where both the trustee and bene- Pac. 373, under Rev. St. 1901, par. ficiary have been out of possession 3S49, as amended by Laws 1903, No. of lands held adversely to them for 16, and par. 3970. 1102 Statutes of Ij;mitation. against him during his lifetime. ^^ In Georgia, a widow, insane at the date of her husband's death, is not barred of her right to apply for dower until seven years after the removal of her disability.^* In Illinois, it is held that the fact that a person was peevish and peculiar on occasions either in private or public does not constitute insanity, within the meaning of the statute.^* In Indiana, an habitual drunkard for whom a guardian has been appointed is not under legal disabilities as a pbrson of " unsound mind " so as to be within the statute of limitations, authorizing persons under legal disabilities when their action accrued to sue within two years after the disability is removed.^^ In Iowa it is held that the stat- ute of limitations begins to run when the cause of action accrues, notwithstanding the insanity of the party, and, in case he dies insane within one year before the statutory period expires, such period is merely extended until one year after his death f^ and if a special statute of limitations contains no exemption of insane per- sons, no exemption exists.^^ In Kansas, limitations will not run in favor of a person claiming under a deed made by one mentally un- sound and under the undue influence of the grantee f^ and an in- sane person is under disability, within the meaning of the stat- 52. Parker v. Betts, 47 Colo. 428, Where a person, who was and re- 107 Pac. 816. mained of unsound mind and not un- 53. La Grange Mills v. Kener, 131 der guardianship, executed a deed to Ga. 439, 49 S. E. 300, under Acts land in 1876, and the grantee held 1855-56, p. 334, § 13. adversely thereunder until the death 54. Calumet Electric St. Ky. Co. v. of the grantor in 1898, the right of Mabie, 66 111. App. 235. the heirs of the insane person to re- Where the saving clause of a stat- cover was not barred by the statute ute authorizes persons under a dis- of limitations, as the deed was void- ability of insanity to avoid the bar of able only, and the right of action did a statute of limitations within three not accrue until after disaffirmance, years after the disability ceases, no Downham v. Holloway, 158 Ind. 626, reason is perceived why they may not 64 N. E. 82, 93 Am. St. Kep. 330. do the same thing during the con- 56. McNeil v. Sigler, 95 Iowa 587, tinuance of such disability through 64 N. W. 604. those who can legally act for them. 57. Collier v. Smaltz, 149 Iowa 230, Milliken v. Marlin, 66 111. 13. 138 N. W. 39fi. 55. Makepeace v. Bronnenbcrg, 146 58. Howard v. Carter, 71 Kan. 65, Ind. 343, 45 N. E. 336. 80 Pac. 61. And see Jenkins v. Jen- Disabilities iit Peesonal Actions. 1103 ute of limitations, though the question of his sanity has never been adjudicated by the probate court. ^^ In Kentucky, under the statute providing that limitations do not bar the rights of one of unsound mind while the disability continues, limitations do not bar an action by a committee of an incompetent to set aside his deed on the ground of incompetency, where the mental condition of the incompetent was congenital and there had been no change in his mental condition since the conveyance was made.^" An action by an insane ward by his guardian, brought more than six years after the date when the transaction in question occurred, is not barred by the statute of limitations, in Massachusetts, if it comes within the provisions of Pub. St. c. 197, § 9.''^ In Mississipppi, a person shown to have been a lunatic for many years is presumed to continue such until his death, and the statute begins to run against his heirs at his death only.^^ Under the substantially direct pro- visions of Missouri Kev. St. 1909, § 1881, one who was insane kins, 94 Kan. 363, 146 Pac. 414, un- der Gen. Laws 1909, §§ 5609, 5611 (Code Civ. Proc, §§ 16, 18). 59. Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745. The running of limitations in an action for damages from Inducing plaintiff to become a user of morphine is not wholly suspended by the fact that the morphine so affects plain- tiff mentally as to render her inca- pable of protecting her own interest; and such action is barred under Code Civ. Proc., § 18 (Gen. St. 1909, § 5611), when not brought within one year after the disability is removed. Gillmore v. Gillmore, 91 Kan. 293, 137 Pac. 958, judg. modified on re- hearing 91 Kan. 707, 139 Pac. 386. 60. Collins V. Lawson's Committee, 140 Ky. 510, 131 S. W. 2.62, under Ky. St., §§ 2506, 2525 (Russell's St., §§ 313, 191). -The deed of a person of unsound mind being void, the lO-year statute of limitations applicable to actions for relief from fraud does not apply to set aside such a deed; and it seems that nothing short of adverse posses- sion sufficient to give the grantee title to the land, if that could ever be, can bar such an action. Spicer v. Holbroolc, 33 Ky. Law Rep. 1812. Persons non compos mentis are not affected by the statutes of limitation until two years after the disability is removed. Lackey v. Lackey, 47 Ky. (8 B. Mon.) 107. The statute of limitations runs against a devisee in favor of the sure- ties in the executor's bond, although the devisee be of unsound mind. Will- son V. Hodge's Guardian, 7 Ky. Law Rep. 525 (abstract). 61. Hervey v. Rawson, 164 Mass. 501, 41 N. E. 682. 62. Jeffries v. Dowdle, 61 Miss. 505. 1104 Statutes of Limitation. when he executed a trust deed and at all times thereafter, had twenty-four years from the time when defendants entered upon the land claiming ownership under their alleged purchase upon fore- closure of the trust deed, within which to commence an action to set aside the trust deed and the deed made at the sale and recover the land.^' Limitations do not begin to run, in New Jersey, against an infant or a lunatic until after the infant reaches twenty- one years or the lunatic is restored to sound mind; and a person suffering under either of these disabilities may commence his ac- tion during the continuance thereof, or within six years after it ceases.''^ Legal liabilities may be enforced against idiots and lunatics, in New York, whether the mental incompetency has been judicially determined or not. The idiocy, therefore, of the debtor does not take a claim out of the operation of the statute of limitations during his lifetime, but the statute begins to run against the claim the same as if he were of sound mind."^ In North Carolina, the in- sanity of a debtor does not suspend the statute of limitations;^ limitations do not run against an idiot, by reason of the saving clause in Code, § 163, excepting them from their operation;'" but a deaf mute is not necessarily an idiot, or non compos mentis, within the intent of the statute.^^ In Pennsylvania, when a deed is voidable for insanity of the grantor, a right of, action to avoid it accrues to such grantor immediately, which right, and that of the persons claiming under him, are barred, after thirty years from such date, under the statute.^' In Ehode Island, a person of un- eS. Faris v. Moore, S56 Mo. 133, 3. German Savings Bank v. Wagner, 165 S. W. 311. 149 N. Y. Supp. 654. 64. Smith v. Felter, 61 N. J. Law 68. Grady v. Wilson, 115 N. C. 103, 38 Atl. 746. 344, 30 S. E. 518, 44 Am. St. Kep. 65. Sanford v. Sanford, 63 N. Y. 461. 553, 3 Hun 94. 67. Outland v. Outland, 118 N. C. Under Code Civ. Proc., § 386, an 138, 33 S. E. 973. action to cancel a deed must be be- 68. Christmas v. Mitchell, 38 N. C. gun within ten years, though, if the 535. grantor be insane, the time is ex- 69. Boyd v. Weber, 193 Pa. 651, tended five years by section 396, subd. 44 Atl. 1078, under Act April 23, DiSABiLi'riEs IN Personal Actions. 1106 sound mind is not within the operation of either the statute of possession or of that of limitations, although he may have a guar- dian who might have brought suit for him.™ In Tennessee, where an insane person has conveyed his property, negligence of his friends for a long period of time to have a guardian appointed, and take steps to avoid the conveyance, will not prejudice his rights.''^ In Texas, the statute of limitations does not run against a person of unsound mind so long as he remains insane.'^ The same rule obtains in Vermont.'^ In Virginia, where after one was adjudged a lunatic his land was sold in an action by a creditor against his committee, limitations on an action by the lunatic to recover the land commenced to run when he was discharged as re- stored to sanity, and continued to run notwithstanding a recur- rence of insanity nine years later.'* In Washington, proceedings to set aside a judgment rendered against a person of imsound mind are not barred until the expiration of one year from the re- moval of the disability.'^ In Wisconsin, it is held that the word 1856 (P. L. p. 532, § 1), declaring that no exception in any act of as- sembly respecting the limitation of actions in favor of persons non com- pos mentis shall stand, so as to per- mit any person to maintain any ac- tion for the recovery of land after 30 years shall have elapsed since the right of entry thereto accrued to any person withdn the exception aforesaid. 70. Bourne v. Hall, 10 E. I. 139. 71. Alston V. Boyd, 25 Tenn. (6 Humph.) 504. 72. Moore v. City of Waco, 85 Tex. 206, 30 S. W. 61. Limitations could not run against plaintiff's action to set aside a judg- ment for fraud together with certain sales of land thereunder, during the time plaintiff was insane, nor until his sanity was restored. McLean v. etith (Tex. Civ. App.), 113 S. W. 3S5. 70 Limitation does not begin to run against one's right to recover land when actual possession is taken by others, if he is in fact insane, the suspension of the statute not depend- ing upon an adjudication of insanity. Kaack v. Stanton (Tex. Oiv. App.), 112 S. W. 703. Possession under a claim of title which begins after the owner has been adjudged a lunatic cannot ripen into title by limitations; the stat- ute not running against a lunatic. Mitchell V. Stanton (Tex. Civ. App.), 139 S. W. 1033. 73. Chamberlain v. Estey, 55 Vt. 378. 74. Howard v. Landsberg's Com- mittee, 108 Va. 161, 60 S. E. 769. 75. Curry v. Wilson, 45 Wash. 19, 87 Pac. 1065, under the express pro- visions of Ballinger's Ann. Codes & St., § 5156. 1106 Statutes of Limitation. " insane," as used in tlie statute of limitations, is not restricted to persons wholly without understanding, but applies to every person who is non compos^ or in the words of the statute of wills, " of un- sound or deranged mind."™ In Minnesota, where a personal injury caused by the negligence of defendant and resulting insanity occur on the same day, the two events are legally simultaneous, as the law will not take notice of fractions of a day, and the disability of insanity existed at the time the cause of action accrued withia the meaning of the statute of limitations." § 239a (2). Removal of disability. Where a person of unsound mind to whom a cause of action has accrued has a lucid interval, it is held, in Kentucky, that limita- tion does not begin to run against him until the interval lasts suffi- ciently long for him to look into his rights in the matter and take steps toward their assertion.''^ In Georgia, it has been held that title by prescription might be asserted against one setting up the disability of insanity where such person was not continuously in- sane, and different lucid intervals amounted to the period of pre- scription.'^ In North Carolina, when a party claims a title in himself, under a conveyance from one non compos mentis, and has possession under such alleged title, he does not hold as bailee ; but, although the original owner is not barred by such adverse pos- session on account of his incapacity, when his incapacity is re- moved, or he dies leaving an executor, the statute will begin 'to run.^" In South Carolina, where, in an action of trespass to try title, it appeared that plaintiff was insane at the time he was di»- 78. Burnham v. Mitchell, 34 Wis. not saved by the disability of the 117. plaintiff. 77. Nebola v. Minnesota Iron Co., 78. Duncan v. Vick, 7 Ky. Law 103 Minn. 89, IIS N. W. 880. Rep. (abstract) 756, wherein the ae- See Langer v. Newmann, 100 Minn. tion wag held barred. 27, 110 N. W. 68, holding an action 79. Verdery v. Savannah, etc., Ey. to recover consequential damages for Co., 82 Ga. 675, 9 S. E. 1133. tort resulting in personal injury was 80. Arnold v. Arnold, 35 N. C. 174, 65 Am. Dec. 434. Disabilities in Peesonal Actions, 1107 seised of his land, his right of action was saved by the statute of limitations during his insanity, and for one year thereafter.^^ § 240. Coverture. At the common law a woman's identity, both legal and other- wise, was merged in the husband immediately upon her marriage. She could neither sue or be sued, nor exercise any of the legal rights which she possessed while a feme sole, consequently so long as coverture existed she was under even greater legal disabilities than an infant ; and this anomalous and unwarranted legal position led to the creation of an exception in her favor in the statute of limitations to save legal rights that existed in her behalf at the time of coverture, or which accrued to her subsequently; and this ex- ception still exists in most of our statutes, although in very many of them the rights of married women have been greatly extended by statute, and she is clothed with the power to sue and be sued the same as a feme sole?'^ In most of the statutes the exception of married women is made in terms, and even where the exception is simply of " person under legal disabilities," it is held to include married women.** In those States in which married women are excepted from the operation of the statute, the circumstance that they are by statute clothed with the power of suing and being sued, or even endowed with all the privileges, rights, and liabilities of a feme sole, would hardly seem to be sufficient to change the rule, or deprive them of the benefits of the disability if they choose to avail themselves of it; and the circumstance that the legislature has clothed them with these rights, without making any change in 81. Cleveland v. Jones, 3 Strob. (S. As to coverture, see also Stubble- C.) 479, note. field v. Menzies, 11 Fed. 268; Partes 82. Morrison v. Norman, 44 111. v. Thomas, 11 Fed. 769; Elder v. Mc- 477. Claskey, 70 Fed. 529, 17 C. C. A. 251, 83. Eauman v. Grubbs, 26 Ind. 419; 37 U. S. App. 1, 199, 163 U. S. 685, Hawkins v. Hawkins, 28 Ind. 66. But 16 Sup. Ct. 1201, 41 L. Ed. 315; quaere, If a married woman is given Fink v. Campbell, 70 Fed. 664; the right to sue and be sued, does Moore's Lessee v. Armstrong, 10 Ohio not this take her out of the excep- 11, 36 Am. Dec. 63, 69, n. tion of such a clause? 1108 Statutes of Limitatiow. the statute of limitations with respect to them, indicates an inten- tion on the part of the legislature that they shall still remain within the exception contained therein. This is still unquestionably the rule in reference to all matters where the wife is not capaci- tated to sue or be sued; but it is held in California ** and in Maine ^ that in cases where a married woman is authorized by statute to sue alone, the saving in the statute of limitations is abrogated as to her. But in New York^^ it is held that the removal of a married woman's disability to sue does not deprive her of the beneiit of the saving clause in the statute, unless, as is now the case in that State, the statute omits her from the saving clause; and in Massachusetts the saving clause is extended to infants, insane persons, and persons " disabled by marriage," *'' which would seem to apply only to cases where, by coverture, a woman cannot sue. It may be stated as a general proposition that where coverture is made a disability, the statute of limita- tions never begins to run against a married woman while she is covert.** But if the statute had begun to run upon her claim 84. Cameron v. Smith, 50 Cal. 303. 130, 15 L. Ed. 577; Gage v. Smith, 27 In Masaaohusetts, Gen. Stat. 1882, Conn. 70; Watson v. Watson, 10 the saving is restricted to those " dia- Conn. 77 ; Drennen v. Walker, 21 ahled by marriage." See chap. 202, Ark. 539; Caldwell v. Black, 27 N. § 7, Rev. Laws 1902, where this C. (5 Ired. L.) 463; Randall v. Raa.b, clause is now omitted. 3 Abb. Pr. (N. Y.) 307; Willson v. 85. Brown v. Cousens, 51 Me. 301. Betts, 4 Den. (N. Y.) 301; Dunham 8e. CTark v. McCann, 18 Hun (N. v. Sage, 52 N. Y. 229. The statute Y.) 13. of limitations does not run against 87. 2 Rev. Stat. p. 1115, § 9. See a married woman, to whom property 3 Rev. L. 1910, p. 1718, § 7. had been left in trust, after her cover- 88. Jones v. Reeves, 6 Rich. (S. C.) ture, she being within the exception 132; Sledge's Adm'rs v. Clopton, 6 in the statute in favor of femes Ala. 589; Wilson v. Wilson, 36 Oal. covert, in a case where she and her 447, 95 Am. Dec. 194; McLane v. husband are suing in equity for the Moore, 51 N. C. {6 Jones L.) 530; recovery of the property. Flynt v. Michan v. Wyatt, 21 Ala. 813; Me- Hatehett, 9 Ga. 328. In Manchester Lean v. Jackson, 34 N. C. (12 Ired.) v. Tibbetts, 121 N. Y. 219, it was 149; Fatheree v. Fletcher, 31 Miss, held that when a wife establishes an 365; Fearn v. Shirley, 3 Miss. 301; indebtedness of her husband to her, Meegan v. Boyle, 60 U. S. (19 How.) she can enforce a security given for Disabilities in Personal Actions. 1109 before her marriage, lier subsequent coverture does not suspend its operation.'^ But while as to the wife the operation of the statute is suspended, yet it is not, on that account, saved to the husband, or the grantee of the husband and wife, as to rights which he acquires in the wife's property.'" The rule is, that payment of the debt, like any other creditor. As against such an indeb- tedness, the husband is not obliged, by any duty he owes his other cred- itors, to interpose the statute of limi- tations as a defense. 89. Wellborn v. Weaver, 17 Ga. 267; Mitchell v. Berry, 58 Ky. (1 Met.) 603; Killian v. Watt, 7 N. C. (3 Murph.) 167. In Becton v. Alex- ander, 27 Tex. 659, it was held that the fact that some of the plaintiffs are femes covert and infants, at the commencement of the suit, does not d(iprive the defendants of the benefits of their limitation as to the others, and that to prevent it from being operative against the femes covert, etc., it must be shown that the dis- ability preceded the commencement of the action. See also, Pendergrast V. Gullatt, 10 Ga. 318. In Killian v. Watt, supra, the court held that where a cause of action accrues to the wife before marriage, her subse- quent coverture does not bar the stat- ute of limitations. This ruling fol- lows the settled rule that where the statute has once begun to run, no subsequent disability can suspend its operation. Cole v. Runnells, 6 Tex. 873; Chevallier v. Durst, 6 Tex. 339; Den V. Eichards, 15 N. J. L. 347; Peck V. Randall, 1 Johns. (N. Y.) 165; Lynch v. Oox, 33 Pa. 265; Pearce v. House, 4 N. C. (Term Rep.) 305; McCoy v. Nichols, 5 Miss. 31; Fewell V. Collins, 3 Brev. (S. C.) 386; Fitzhugh v. Anderson, 2 H. & M. (Va.) 289; Faysoux v. Prather, 1 N. & McC. (S. C.) 396; Parsons V. M'Cracken, 9 Leigh (Va.) 495; Stowel V. Zouch, 1 Plowd. 353a; Duroure v. Jones, 4 T. R. 300; Cot- terell v. Dutton, 4 Taunt. 836; Bunce V. Walcott, 3 Conn. 27. When the statute has once commenced to run, it runs over all subsequent disabili- ties and intermediate acts and events, and there is no distinction between a disability or impediment on the part of the plaintiff, and where it arises from some change or event that has happened to the debtor; or, in this respect, between a voluntary and an involuntary disability. Dekay v. Darrah, 14 N. J. L. 388. Where an adverse possession commenced during the life of the ancestor, it is not sus- pended by the title descending to a feme covert. Jackson v. Robins, 15 Johns. (N. Y.) 169; Fleming v. Gris- wold, 3 Hill (N. Y.) 85. This ques- tion was considered in Griswold v. Butler, 3 Conn. 327, and the rule establislied, that there is no saving in the statute of limitations for -any disability in the heir supervenient to the disability of the person to whom, the right of entry first accrued. 90. Carter v. Cantrell, 16 Ark. 154. In Gregg v. Tesson, 1 Black. (U. S.) 510, where a married woman was the owner of land in which, by force of the law of the State, her husband had a life Interest, the grantee of the 1110 Statutes of Limitation. where the husband sues in right of his wife, he cannot avail him- self of her disability. ^^ The disability that saves a claim from the operation of the statute is of a personal character, and can only he set up by the party in whose favor it exists, and those claim- ing under him;^^ nor is it available to a person claiming under such disabled person, if he has, at all times since the disability accrued, been in a position to assert and enforce the right; and for this reason the husband cannot avail himself of the wife's disability as to rights which he acquired by coverture over, to, or in her estate.^^ But this must be understood as applying only to that class of claims which the husband could have enforced during coverture. ^^ If the wife's property is taken upon execu- tion upon her husband's debts, or illegally sold, the statute does not begin to run against her until her husband's death ;'^ but it begins to run against her heirs immediately upon her death, except as to such property as by law the husband is entitled to a life estate in.^^ In Pennsylvania ^' it was held that where a sale of land on execution against a deceased debtor has been acqui- husband and wife was not saved from 94. State v. Layton, 4 Harr. (Del.) the operation of the statute by the 8. wife's disability, because he might 95. McDonald v. McGuire, 8 Tex. have brought ejectment counting on 361; Meanor v. Hamilton, 37 Pa. 137; hia interest immediately upon aoquir- Culler v. Motzer, 13 S. & E. (Pa.) ing the right. McDowell v. Potter, 356. If a married woman loans 8 Pa. 189. money to her husband during cover- 91. McDowell v. Potter, 8 Pa. 189. ture, the statute does not run upon 92. Watson v. Kelly, 16 N. J. L. her claim until his death. Towers 517; Thorpe v. Corwin, 20 N. J. L. v. Hayner, 3 Whart. (Pa.) 18. And 311. the same rule prevails where she 93. Gregg v. Tesson, supra. In loans money to a firm of which the Carter v. Cantrell, 16 Ark. 154, it husband is a member. Kutz's Appeal, was held that a right of action for 40 Pa. 90. the recovery of slaves belonging to 96. Carpenter v. Schermcrhorn, 3 the wife is not, on account of the Barb. Ch. (N. Y.) 314; Marple v. wife's disability to sue for the same Myers, 12 Pa. 123; Lenhart v. Ream, in her own name, saved to the hus- 74 Pa. 59; Henry v. Carson, 59 Pa. band in an action by husband and 297. wife, after the statute would have 97. Meanor v. Hamilton, supra. otherwise attached. Disabilities in Peesoital Actions. 1111 esced in for thirty or forty years by the family of the decedent, a jury should not disturb the purchaser's title, except upon the most overwhelming proof of fraud, and that, although the disa- bilities of coverture or infancy have not been removed long enough to make the statute bar complete, yet that the long silence of husbands and guardians is entitled to weight as evidence of such an acquiescence as to protect the purchaser's title. But it is hardly believed that this doctrine can stand. To permit the cii^ cumstance that a husband or guardian has acquiesced in an improper interference with the property of the ward, to overcome the protection which the statute is intended to afford to persona under such disabilities, is an assumption by the court of authority to abrogate the clear and unequivocal provisions of a statute, and that, too, for the very reasons that led to the adoption of the statute itself.'* In Ohio, it has been held that equity will refuse relief in a case where some of the applicants for relief are under no disability, even though some of them are under the disability of coverture, where they are all adults, and have slept upon their rights for so many years that the granting of the relief prayed for would operate as a fraud upon the defendants. But in such a case the parties under disability, upon the removal thereof, can stand upon their legal rights.'^ In New York, married women being given control over their own property, and the right to sue in their own name, no provision is made saving their rights from the operation of the statute ; and the repeal of the saving clause in their favor is held to apply to claims existing before the repeal. Thus, where a woman, married in November, 1857, when a bond and mortgage became due to her, neglected to bring an action thereon until December, 1877, the saving clause as to married women having been omitted from the statute in 1870, it was held that her remedy was barred by the lapse of twenty years.^ In 98. Piatt V. Smith, IZ Ohio St. 1. Acker v. Acker, 81 N. Y. 143, ggj reversing the same case in 16 Hub 99. Hansford v. Elliott, 9 Leigh (N. Y.) 173. (Va.) 79. 112 Statutes of liMiTAnorr. T^isconsin, no exception is made in favor of married women, the iatute of that State in this respect being the same as in New ork. In Iowa, coverture is not within the saving clause. In [assachusetts, the statute only saves the rights of married women here they are disabled by coverture ; that is, where they are not othed with authority to prosecute their rights by suits in their vn name. In California and Indiana, married women are not ithin the saving clause of the statute, except as to those rights )r the enforcement of which the husband is a necessary party. 1 West Yirginia, coverture is within the exception of the statute, icept in those cases where a married woman holds lands as her lie and separate property. In all the other States, coverture is ithin the saving clause of the statute; and the circumstance that married woman is clothed with the power to sue in her own ime does not defeat the exception, because, although she may Dt be within the reason of the statute, she is nevertheless within s letter, and the legislature not having seen fit to repeal the sav- ig clause as to her, the courts have no power to do so. 240a(l). Coverture — In general. As stated in the last preceding section, where coverture is made disability, statutes of limitation do not run against a married oman so long as coverture continues.^ Where a special statute of 2. Ark. — Vaughan v. Parr, 20 Ark. Heirs v. Grundy, 51 Ky. (12 B. Mon.) «. 2-69. Ga. — Scott v. Haddock, 11 Ga. 258. Mo. — Graham v. Wilson, 168 Mn. /nd.— Caress V. Foster, 62 Ind. 145; App. 185, 153 S. W. 83; Witte ▼. ennick v. Chandler, 59 Ind. 354; Storm, 236 Mo. 470, 139 S. W. 384; irnett V. Harshbarger, 105 Ind. Elliott v. Landis Mach. Co., 236 Mb. .0, 5 N. E. 718; Sims v. Smith, 86 546, 139 S. W. 356; Roberts v. St. ;d. 577; Sims v. Bardoner, 86 Ind. Louis Merchants' Land Imp. Co., 126 ', 44 Am. Bep. 263; De Armond v. Mo. 460, 29 S. W. 584; Frajiklin T. lasscock, 40 Ind. 418. Cunningham, 187 Mo. 184, 86 S. W. Ky. — Smith v. Cox'a Committee, 79; Reaume v. Chambers, 22 Mo. 36; S Ky. 118, 160 S. W. 786; De- Hinkle v. Lovlace, 204 Mo. 208, 103 mrcy's Adm'r v. Dicken, 1 Ky. Law S. W. 1015; Dubowsky v. BinggeJi, 3p. (abstract) 260; Priest v. War- 184 Mb. App. 361, 171 S. W. 12. n, 70 Ky. (7 Bush) 633; Grundy'a Disabilities in Peesonal Actions. 1113 limitations contains no saving clause in favor of persons under disability of marriage, it runs as well against married women as other persons, and the courts cannot write Into the statute a dis- ability which the law has not provided for.^ In Illinois, limita- tions do not run against the liability of the husband to support his wife, and do not operate to bar the right to relief by separate main- tenance.* Coverture does not bring the wife within the exception in favor of persons under legal disabilities contained in the pre- sent statute.^ The repeal of the disability of coverture by the North Carolina Act of 1899 was not retroactive, but, by its terms, no adverse possession prior to February 13, 1899, could be counted against a married woman.® In Arkansas, married women are not N. ff.— Little V. Downing, 37 N. H. S55; Pierce v. Dustin, 34 N. H. (4 Fost.) 417. N. J. — Oarey v. City of Paterson, 47 N. J. Law 365, 1 Atl. 473; Col- lins V. Babbitt, 67 N. J. Eq. 165, 58 Atl. 481, the statute of limitations does not apply as between husband and wife. N. 0.— Briggs V. Smith, 83 N. C. 306; Uzzle v. Wood, 54 N. C. a26. OlUo. — Mathers v. Hewitt (Super. C?t. Cln.), 9 Wkly. Law Bui. 63. Pa. — Etter v. Greenawalt, 98 Pa. 422; OfFerman v. Packer, 26 Leg. Int. 205; Hill v. Groodman, 1 Woodw. Dec. 207; Beal v. Stahley, 21 Pa. (9 Ha.rris) 376; Matlock v. Mutual Life Ins. Co., 5 Pa. Dist. E. 113, 37 Wkly. Notes Cas. 526. 8. C. — Payne v. Harris, 3 Strob. Bq. 39. Tenn. — Brown v. Crawford, 28 Tenn. (9 Humph.) 164; . Weisinger V. Murphy, 39 Tenn. (2 Head) 674; Fitzsinunons v. Johnson, 90 Tenn. (6 Pickle) 416, 17 S. W. 100. Tea;.— Estes v. Turner, 30 Tex. Civ. App. 365, 70 S. W. 1007; Crouch v. Crouch, 30 Tex. Civ. App. 288, 70 S. W. 595; Harrison v. City of Sulphur Springs (Tex. Civ. App.), 50 S. W. 1064; Smith v. McElyea, 68 Tex. 70, 3 S. W. 258; Eoemilie v. Leeper, 3 Posey Unrep. Cas. 535. See Taylor V. Bland, 60 Tex. 29. 3. State etc rel. O'Malley v. Musick, 165 Mo. App. 214, 145 S. W. 1184, adopting opinion 145 Mo. App. 33, 130 S. W. 398. 4. Glynn v. Glynn, 139 111. App. 185. 5. Sedwick v. Hitter, 128 Ind. 209, 37 N. E. 610 (1891). 6. Noreum v. Savage, 140 N. C. 472, 53 S. E. 289. As a guardian's possession of the ward's choses in action on her mar- riage in 1865 was transferred to the husband, so that he alone could maintain an action to recover them, or their value if converted, limita- tions began to run against him from the date of the marriage as to any ac- tion on the guardian's bond. Fowler V. McLaughlin, 131 N. C. 209, 43 S. E. 589. 1114 Statutes of Limitation. excepted from the operation of the statute of limitation as to judi- cial sales.' § 240a (2). Effect of separate acts. In Arkansas, it is held that the act giving married women ex- clusive control of their separate property, removing the disability of coverture, and authorizing them to sue in their own names, does not repeal by implication the saving clause, in their favor in the statute of limitations, exempting married women from the operation of limitations, and giving them three years after discoverture in which to bring a suit for lands.^ In Georgia, as the act in regard to married women authorizes them to bring suit in respect to their separate estates, the statute of limitation runs against such suits, the same as against other causes of action.^ In Illinois, since the passage of the married woman's Act of 1861, the saving clause in favor of married women in the statute of limi- tations has no force, and since that time the statute of limitations applies against a married woman equally as against an unmarried woman.-^" The Indiana statute of 1881 removed the " disabilities of married women," in the sense in which that phrase is used in the statute, giving a person " under legal disabilities " two years in which to bring an action after the disability is removed.^^ TJn- 7. McGaughey v. Brown, 46 Ark. ner, 80 111. 197; Noble v. McFarland, 25. 51 111. 236; Morrison v. Norman, 47 8. Memphis & L. R. R. Co. v. Or- 111. 477. gan, 67 Ark. 84, 55 S. W. 952; Row- 11. City of Indianapolis v. Patter- land V. McGuire, 64 Ark. 412, 43 S. son, 113 Ind. 344, 14 N. E. 551. See W. 1068. Contra: Garland County also, Rosa v. Prather, 103 Ind. 191, V. Gaines, 47 Ark. 558, 2 S. W. 460. 3 N. K. 575; Royse v. Turn-baugh, 117 9. Perkins v. Compton^ 69 Ga. Ind. 639, 20 N. E. 485. 736. See also. Sparks v. Roberta, 65 As, under Rev. St. 1881, § 254, a Ga. 571. married woman oan sue alone in her 10. SafTord v. Stubbs, 117 111. 389, own name in regard to her sefarate 7 N. E. 653; Geisen v. Heiderieh, 104 property, her claim to such property 111. 537; Enos v. Buckley, 94 111. 458; may be barred by limitation. Irey Castner v. Walrod, 83 111. 171, 25 v. Markey, 132 Ind. 546, 32 N. E. Am. Rep. 369; Hayward v. Gunn, 82 309. 111. 385. Contra: Harrer v. Wall- Disabilities in Personal Actions. 1115 der the Kentucky Statute, 1903, § 2525, providing that if a per- son entitled to sue was, at the time the cause of action accrued, a married woman, the action may be brought within the number of years after the removal of such disability that is allowed to a per- son having no impediment to bring the same, limitations do not run against a married woman during her coverture, regardless of her ability to maintain suit during that time.-'^ Since the enact- ment of the Michigan married women's property act of 1855, en- abling such women to sue and be sued, the statute of limitations may run against a woman during her marriage.-"^ It is held in Mississippi that mere ability to sue imposes no obligation to do so, and a married woman is not barred by limitation by the fact that she might have sued, either with or without her husband, after her marriage." Likewise in Missouri it is held that the statute per- mitting a married woman to sue and be sued in her own name, the same as a feme sole, does not by implication repeal the statute that exempts a married woman from the running of the statute of limi- tations, since mere ability to sue does not impose an obligation to 12. Henson v. Culp, 157 Ky. 443, covery of real property accrued, such 163 S. W. 455; Dukes v. Davis, 30 person was a married woman, she Ky. Law Eep. 1348, 101 S. W. 390; may, though the period of 15 years Terrell v. Maupin, S6 Ky. Law Rep. has expired, bring an action within 1303, 83 S. W. 591. The statute ap- three years after such disability is plies, though the plaintiff might, un- removed, is not repealed by section der Civ. Code Prac, § 34, have sued 3138, providing that a married alone during coverture, if her hus- woman may take, acquire, and hold band refused to unite in the action, property, malce contracts, and sue Onions v. Covington, etc.. Bridge Co., and be sued, as a single woman, etc. 107 Ky. 154, 53 S. W. 8, 31 Ky. Law Sturgill v. Chesapeake & O. Ky. Co., Rep. 830. 116 Ky. 659, 35 Ky. Law Rep. 913, Limitations did not run during the 76 S. W. 826; Higgins v. Stokes, 116 life of the husband against her action Ky. 664, S5 Ky. Law Eep. 019, 76 to' recover rents and profits collected S. W. 834. by the husband from the wife's separ- 13. King v. Merritt, 67 Mich. 194, ate estate. Smith's Ex'r v. Johns, 34 N. W. 689; Dougless v. DousIces, 154 Ky. 374, 157 S. W. 21. 73 Mich. 86, 40 N. W. 177; Ctirbay Ky. St. 1899, § 2506, providing , v. Bellemer, 70 Mich. 106, 37 N. W. that if, at the time the right of any 911. person to bring an action for the re- 14. North v. James, 61 Miss. 761. 1116 Statutes of Limitation, do so.^^ Since the enactment in 1871 of the Nebraska married woman's act, permitting married women to sue in the same man- ner as if they were unmarried, the statute of limitations runs against women during coverture.^^ By Laws 1870, c. 741, §, 5, amending the New York Code Civ. Proc, § 88, striking married women from the list of persons against whom the statute of limitations does not run, a married woman, as to the commencement of actions, was placed on the same footing as other persons, and thereafter she was bound to commence her action within the time specified after the cause of action accrued, although it had accrued prior to the amendment.^' The provisions of the North Carolina Code allowing a feme covert to sue or be sued alone, regarding her separate property, does not remove the disability of coverture, so as to allow the statute of limitations to bar her right of action.^^ The Ohio Act of 1861, constituting the real and personal property of a married woman her separate es- tate, and the provisions of the Civil Code, authorizing her to sue and be sued alone, do not repeal by implication the saving clause in the statute of limitations in favor of married women -^ and the Act of 1883, removing the disabilities of coverture as to rights of ac- tion concerning a married woman's separate estate, did not affect the. statute of limitations then in effect as to causes of action that 15. Lindell Keal Estate Co. v. A married woman is not excluded Lande, 143 Mo. '61, 43 S. W. 368. from the benefit of the exception in 16. Murphy v. J. H. Evans City the statute of limitations, providing Steam Laundry Co., 53 Neb. 593, 73 that the statute shall not run N. W. 960. The act applies to mar- against a married vfoman during ried women, both residents and non- coverture, by reason of the fact that residents. Linton v. Heye, 69 Neb. she registered herself as a free 450, 95 N. W. 1040, 111 Am. St. Rep. trader during coverture, as author- 556. ized by Code, § 1837. Wilkes v. Al- 17. Clarke v. Gibbons, 83 N. Y. len, 131 N. C. 279, 42 S. E. 616. See 107; Acker v. Acker, 81 N. Y. 143, Cherry v. Cape Fear Power Q)., 142 rev'g 16 Hun 173. N. C. 404, 55 S. E. 387. 18. Campbell v. Crater, 95 N. C. 19. Ashley v Rockwell, 43 Ohio St. 156; Lippard v. Troutman, 72 N. C. 3S6, 2 N. E. 437; Hurlbut v. Wad«^ 651. 40 Ohio St. 603. Disabilities in Peesonal Actions. 1117 had then accrued.^ The Pennsylvania Act of June 3, 1887, con- ferring on a married woman the same rights concerning her own property as possessed by a feme sole repealed Act March 27, 1713, excepting from the running of the statute women under the disabil- ity of coverture.^^ Under the West Virginia statute, excepting a married woman from disabilities as to her sole and separate prop- erty, adverse possession will run against a married woman as to land owned by her in her sole right.^^ The Wyoming statute per- mitting a married woman to sue and be sued does not, by implica- tion, repeal the statute providing that a cause of action accruing to her shall not be barred by the statute of limitations so long as the disability of coverture exists.^ § 240a (3). Nature of property or cause of action involved. Limitations do not run against a note to a married woman while coverture disables her from suing thereon.^* The fact that the holder of a note is under the disability of coverture does not prolong the time within which suit must be brought in order to hold the surety liable.^^ Under the Missouri statute, exempting married women from the operation of the statute of limitations dur- ing coverture, the statute does not run against a wife's right of action for alienation of her husband's affections until termination of the coverture.^^ Under the North Carolina Code, providing that limitations shall not begin to run against a right of action accruing in favor of a married woman until the termination of her co- verture, a wife's right of action for a trespass on land held by herself and her husband in entirety is not barred until the statu- 20. Yocum V. Allen, 68 Ohio St. 22. Randolph v. Casey, 43 W. Va. 380, 50 N. E. 909. 389, 27 S. E. 231. 21. In re Hick's Estate, 7 Pa. 23. Bliler v. Boswell, 9 Wyo. 57, 59 euper. Ct. 274, 42 W. N. C. 117; Nis- Pao. 798, 61 Pac. 867. «Iey V. Bnibalter, 193 Pa. 388, 43 Atl. 24. Taylor v. Slater, 21 R. I. 1(H, 967, 44 W. N. 0. 425. See as to 41 Atl. 1001. effect of married woman's act of 25. Rdd v. Hamilton, 11 Ky. Law 1848, Dexter v. Billings^ 110 Pa. 135, Rep. (abstract) 524. a Atl. 180. 26. Linck v. Linck, 104 Mo. App, 36S, 79 S. W. 478. 1118 Statutes of Limitation. tory period after her husband's death.^'' Where a husband and wife reside on land after the execution of a void deed thereof by the wife to the husband, and their marital relations are uninter- rupted, the husband's possession is not adverse, and the statute of limitations does not run in his favor prior to her death.^ Where a debt is due a married woman, and, she being incapable of hold- ing the same, the debtor is allowed by agreement by her husband to hold the amount of the debt in trust for her, the statute of limi- tations begins to run against her on the death of her husband.^ § 240a (4). Claim by wife against husband. The statute of limitations does not run against claims existing between husband and wife during the continuance of the marital relation.^" Where a wife loaned her husband money from her sole and separate estate, limitations ran against the loan as in the case of a transaction between strangers.^^ Where the only evidence in support of a wife's claim against her husband's estate is that she handed him a sum of money more than five years before her claim was filed in the probate court, the claim is barred by the Illinois statute of limitations.^^ Transactions between husband and wife are not regarded as contracts in a strict legal sense, and their contracts are not within the general statute of limitations, in In- diana.^^ In Iowa, limitations run against a claim in favor of a wife against her husband as in other cases ; Code, § 3447, providing that actions may be brought within the times specified after their 27. Spruill V. Branning M/g. Co., 33. Earnett v. Harshbarger, 105 130 N. C. 42, 40 S. E. 824. Ind. 410, 5 N. W. 718. 28. Berkowitz v. Brown, 3 Misc. Limitations do not run, during the Eep. (N. Y.) 1, 23 N. Y. Supp. 792. continuance of the marital relations, 29. In re Neilley, 95 N. Y. 382. against notes made by a husband to 30. Hamby v. Brooks, 86 Ark. 448, his wife before their marriage, and 111 S. W. 277. which were due, but not barred, at 31. Wagner v. Mutual Life Ins. Co. the date of the marriage. Fourtli- of New York, 88 Conn. 536, 91 Atl. man v. Fourthman, 15 Ind. App. 199, 1012. 43 N. E. 965. 32. Bromwell v. Bromwell'a Estate, 139 111. 424, 28 N. E. 1057. Disabilities ijr Peesokal Actions. 1119 causes accrue, and not afterwards, except when otherwise specially declared, and the statute containing no exception in behalf of married women.^* The Kentucky statute does not begin to run against a note executed by the husband to the wife until the hus- band's death, though the money for which the note was given was by virtue of an ante-nuptial agreement, the wife's separate estate.^ Under the Mississippi Code of 1880, the constitution of 1890, and the Code of 1892, the statute of limitations will bar a debt owed by a husband to a wife.^^ In Missouri, limitations run against a cause of action in favor of a married woman against her husband only when she becomes discovert, subject, however, to the proviso of Eev. St. 1909, § 1881, that it may not be commenced more than twenty-four years after accrual." In Louisana prescription does not run against a debt due by the husband to the wife during the marriage.^* In Maine, an action on a note given by a husband to 34. In re Deaner's Estate, 126 Iowa 701, 102 N. W. 835, 106 Am. St. Rep. 374. Under the Code of 1851, which pro- vides that, in case the wife does not recover during the life of her hus- band property left under his control, she shall then have a remedy against his estate, her right of action there- for does not accrue until the hus- band's death. Lower v. Lower, 46 Iowa 525. See Wallace v. Wallace, 137 Iowa 37, 114 N. W. 913, as to action by the wife to set aside a conveyance made by the husband previous to mar- riage in fraud of her rights. 35. Biggerstaff's Adm'r v. Bigger- staff's Adm'r, 19 Ky. Law Eep. 371, 40 S. W. 671. 36. Wyatt v. Wyatt, 81 Miss. 219, 32 So. 317. 37. Graham v. Wilson, 168 Mo. App. 185, 153 S. W. 83. An action by a wif-e against her husband to recover realty may accrue during coverture, but if she dies un- der coverture, whether limitations have run or not, an action is saved to her heirs or those claiming by or under her, which may be brought within three years after her death, as expressly provided by Hev. St. 1899, § 4267. Smith v. Settle, 128 Mo. App. 379, 107 S. W. 430; Reed v. Painter, 145 Mo. 341, 46 S. W. 10«9. Where a husband received money belonging to his wife without her consent in writing, the period of limi- tations against her action to recover it began to run from the day the hus- band received the money, but, the wife having died under coverture, her personal representative was entitled to sue within one year irora. her death, as provided by Rev. St. 1899, §§ 4279, 4281. Smith v. Settle, supra; Rosenberger v. Mallerson, 92 Mo. App. 27. 38. Sewell v. McVay, 30 La. Annu 673. 1120 Statutes of Limitatiow. his wife is not barred, if begun within six years after her de- cease, and within two years and six months after notice of the appointment of his executor; the statute authorizing married wo- men to sue not applying to actions against her husband.^' In Maryland, the receipt of money under such circumstances as would make the husband liable therefor merely creates a debt due by him to his wife, and against such a debt the statute of limitations runs, and it will be barred, unless sued for or claimed in due time after disability of coverture removed.''* In New Jersey limitation does not run during the coverture on the note of a husband to his wif e/"- In Pennsylvania, since the married woman's act does not author- ize a suit by a married woman against her husband, limitations do not run against a note given to a wife by her husband.^^ In Tennessee, where the right of a wife to sue, by her next friend, her husband and the holder of her inheritance in realty to recover the same, is barred by limitations, the running of limitations against the curtesy interest of the husband does not operate as a bar to her right to the fee on the death of her husband, if she sues within the time fixed by the statute. ^^ In West Virginia, a claim of a wife against her husband is not barred during coverture, if at all, until twenty years from its inception or written renewal." In Wisconsin, limitations do not run against a wife, as between her- self and husband, so as to bar her claim against his estate for money loaned to him.^^ In North Carolina, in the absence of any ex- 39. Morrison v. Brown, 84 Me. 83, presumption of payment on the note 24 Atl. 673. arose. Gillan v. West, 333, Pa. 74, 40. Sabel v. Slingluff, 52 Md. 133. 61 Atl. 128. 41. Alpaugh V. Wilson, 53 N. J. See also, Kennedy v. Knight, 174 Eq. (7 Dick.) 424, 38 Atl. 732. Pa. 408, 34 Atl. 585. 42. Jn re Wilkinson's Estate, 193 43. Murdock v. Johnson, 47 Tenn. Pa. 117, 43 Atl. 466. (7 Cold.) 605. In an action by an administrator 44. Righter v. Riley, 43 W. Va. of a married woman against her hus- 633, 26 S. E. 357. band on a note, the period of the 45. Gudden v. Gudden's Estate, 113 wife's coverture is properly excluded Wis. 297, 89 N. W. Ill; Brader T. in ascertaining the time at which the Brader, 110 Wis. 423, 85 N. W. 681. Disabilities in Peksonal Actions. 1121 «eption in favor of the wife holding a claim against her husband, the statute of limitations runs against the wife during coverture.^ § 240a (5). Claim to real property in general. In Arkansas, the statute of limitations against an action for the recovery of land, the separate property of a feme covert, does not run during coverture;" and title to land by adverse posses- sion for seven years cannot be built up against a married woman, such person being exempted from the operation of the statute.^ In Connecticut, a married woman, who executes a mortgage of her land with her husband, is not saved by her coverture from the run- ning of the statute of limitations against her title in favor of the mortgagee.*® In the District of Columbia, an action of ejectment to recover from an adverse holder the land of a married woman whose title vested prior to the passage of the statute defining the separate property rights of married women, is barred ten years after the removal of the disability of coverture, where the adverse possession has continued for ten years prior to the removal of such ' disability.®" In Indiana, a person under the disability of cover- ture has two years after the disability is removed in which to bring an action to recover land, although the full period prescribed by the statute has expired ; but such a person is not entitled to have the time the statute begins to run fixed at the date of the removal of the disability.®^ Under the Kentucky statute, providing that if, when the right to bring an action for realty first accrued, the per- son entitled was a married woman, she or one claiming through her 46. Graves v. Howard, 159 N. C. Guire, 67 Ark. 330, 55 S. W. 16; Mc- 394, 75 S. E. 998, under the Constitu- Farlane v. Grober, 70 Ark. 371, 69 tion, Revisal 1905, § 2093, and Laws S. W. 56, 91 Am. St. Eep. 84; Cooper >f 1899, c. 78. V. Newton, 68 Ark. 150, 56 S. W. 867. 47. McKneely v. Terry, -61 Ark. And see Martin v. Conner (Ark.), 171 537, 33 S. W. 953. See also, Anders S. W. 125. 7. Eoark, 108 Ark. 248, 156 S. W. 49. Hanford v. Fitch, 41 Conn. 486. tOlS; Brasher v. Taylor, 109 Ark. 50. Davis v. Coblens, 13 App. D. C. 281, 159 S. W. 1120. 51. 48. Harvey v. Dougless, 73 Ark. 51. Wright v. Kleyla, 104 Ind. 223, 331, 83 S. W. 946; Rowland v. Mc- 4 N. E. 16. VI 1123 Statutes of Ltmitation. may bring the action within three years after such disability is removed, though the period of fifteen years has expired, limita- tions would not run against a married woman's right of, action to recover realty; but thirty years' adverse possession of land owned by a married woman bars an action for its recovery by her heirs, notwithstanding her coverture, when the adverse possession be- gan and continued until her death.^^ In Missouri, an action to recover land is governed by the statute providing that, if a person entitled to bring an action specified in the article (Limitation of Real Actions), be at the time of the accrual of the right of action a married woman, the time of such disability shall not be any portion of the time limited for beginning the action, but her action will not be barred for twenty-four years from the time it accrues ; and if such married woman die intestate, while under the same coverture and within twenty-four years after the cause of action accrued, her heirs may commence such action within three years after her death.^^ In Maine, where the wife became entitled to the premises as heir at law during her coverture, and her husband conveyed his life estate therein, and his grantee continued in pos- session for more than thirty years, the husband still living, she may, after the decease of her husband, make an entry and recover the land.^* Under the Massachusetts statute, a married woman was barred of her right of entry unless she made entry within thirty years next after the right accrued.^^ In New York, where 52. Kentucky Stave Co. v. Page years after the death of her husband. (Ky.), 135 S. W. 170; Trail v. Tur- 53. McKee v. Downing, 3-34 Mo. ner, 23 Ky. Law Rep. 100, 56 S. 115, 134 S. W. 7; Butter v. Caroth- W. 645. See also, Bankaton v. Crab- ers, 223 Mo. 631, 133 S. W. 1056; tree Coal Min. Co., 95 Ky. 455, 35 Graham v. Ketchum, 192 Mo. 15, 90 S. W. IMS; Conner v. Downer, 67 S. W. 350; Shumate v. Snyder, 140 Ky. (4 Bush) 631; Sharp v. Head, Mo. 77, 41 S. W. 781; Snyder v. 50 Ky. (11 B. Mon.) 377; Riggs v. Elliott, 171 Mo. 363, 71 S. W. 836. Doolcy, 46 Ky. (7 B. Mon.) 336; See also, Bucher v. Hohl, 199 Mo. jrarshall v. McQueen, 13 Ky. { 3 330, 97 S. W. 933 ; Hatre v. Edmunds, Litt.) 468; Big Sandy Co. v. Ramey, 200 Mo. 346, 98 S. W. 744. 163 Ky. 236, 172 S. W. 508, a mar- 54. Melius v. Showman, 21 Me. (8 ried woman, executing a deed alone, Shep. ) 301. cannot recover the land after three 55. Atherton v. Eitchings, 78 Maae. ' Disabilities in Pbesonal Actioits. 1123 a wife joins in a purchase money mortgage on land purchased in. her husband's name, her right to redeem is not suspended until ihe death of her husband, but accrues immediately on the sale, and is barred in twenty years thereafter.^^ In North Carolina, where one was in actual adverse possession, under color of title, of land of a married woman, for seven years before the death of her hus- band, and she failed to bring her action therefor within the three years after his death allowed by the statute, her heirs are barred by adverse possession and limitations from recovering it.^'' In Pennsylvania, a person under coverture must make entry or bring suit to recover lands within thirty years after her right of entry accrues, notwithstanding her coverture.^* In Tennessee, a wife who, during coverture, has with her husband been disseised of her land, is limited to three years after his death within which to bring her action for its recovery.^^ In South Carolina, an action to recover real property, where the ancestor under whom plaintiff claimed and who owned the land in fee by marriage before the adoption of the constitution of 1868 vested in her husband an in- terest in her real estate, predeceased him, begun within ten years after the removal of disability of coverture, was not barred.*^" In Texas, where Act April 1, 1895, provides that limitations shall not begin to run against married women until they arrive at twenty-one years of age, and that their disability shall continue one year after the passage of the act, and that they shall have thereafter the same time to sue as is allowed others by the pro- (12 Gray) 117; Melvin v. Proprie- Berry v. W. M. Ritter Lumber Co., tors of Locks and Canals, 46 Mass. 141 N. C. 386, 54 S. E. 378, as to ac- (5 Mete.) 15, 38 Am. Dec. 384. tions for the recovery of land; Crump 56. McMichael v. Russell, 74 N. Y. v. Thompson, 31 N. C 491. Supp. 212, 68 App. Div. 104, under 58. Hogg v. Ashman, 83 Pa. 80, Code Civ. Proc, § 379, limiting ac- under Act April 22, 1856. tions to redeem from mortgagees in 59. King v. Nutall, 66 Tenn. (7 possession, or those claiming under Baxt.) 321: Murdock v. Johnson, 47 them, to 20 years. Tenn. (7 Cold.) .605. 57. Swift V. Dixpn, 131 N. C. 42, 60. Stokes v. Murray, 99 S. C. 221, 42 S. E. 458. See also, Gaskins v. 83 S. E. 33. Allen, 137 N. C. 426, 49 S. E. 919; 1124 Statutes of Limitation. visions thereof, where a woman was under coverture at the time the act took effect, the five-year, statute of limitations against an action to recover land did not begin to run until one year after the act of 1895 took effect.^^ In Virginia, where the person is under disability when the cause of action arises, no action can be brought to recover land but within twenty years next after the time at which such right of action accrued.^^ In West Virginia, where ad- verse possession of a married woman's land, not her separate es- tate, beginning during coverture and continuing for the term of the statute of limitations, has barred her rights and those of her husband during coverture, the wife, or those claiming under her, has five years after the coverture ends to sue for the land.*^ § 240a (6). Recovery of property disposed of by husband. In Alabama, the statute of limitations does not bar a married woman from recovering her separate property, sold under exeeu- 61. Beale's Heirs v. Johnson (T«x. Civ. App.), 99 S. W. 1045. See also, as to the effect of cover- ture under this act: Hymer v. Holy- field (Tex. Civ. App.), 87 S. W. 722; Wren v. Howland, 33 Tex. Civ. App. 87, 75 S. W. 894; Broom v. Pearson (Tex. Civ. App.), 81 S. W. 753, modified' 98 Tex. 469, 85 S. W. 790, and rehearing denied 98 Tex. 469, 86 S. W. 733; Surghenor v. Taliaferro (Tex. Civ. App.), 98 S. W. 648; Harry v. Hamilton (Tex. Civ. App.), l.o4 S. W. 638; Gibson v. Oppen- heimer (Tex. Civ. App.), 154 S. W. 694. Prior to 1895, the statute of limi- tations for the recovery of land did not run against a married woman during coverture. Byne v. Wise (Tex. Civ. App.), 31 S. W. 1069; Halbert v. Brown, 9 Tex. Civ. App. 335, 31 S. W. 535; Hardy v. Dunlap, 7 Tex. Civ. App. 339, .2« S. W. 852; Eddie v. Tinnin, 7 Tex. Civ. App. 371, 26 S. W. 732; Corley v. Eenz (Tex. Civ. App.), 24 S. W. 935; Storer v. Lane, 1 Tex. Civ. App. 250, 20 S. W. 852; Tevis v. Collier, 84 Tex. 638, 19 S. W. 801; Norwood v. Gonzales County, 79 Tex. 218, 14 S. W. 1057; Hunton v. Nichols, 55 Tex. 217. When female children were mar- ried and of legal age when their brother obtained a deed Srom the parents and took possession and set up an adverse claim to common family property, limitations ran against the female children by the removal of disability of coverture. Ryman v. Petruka (Tex. Civ. App.), 166 S. W. 711. 62. McMurray v. Dixon, 105 Va. 605, 54 S. E. 481, under Va. Code 1904, § 2918. 63. Waldron v. Harvey, 54 W. Va, 608, 46 S. E. 603, 102 Am. St. Eep. 959. Disabilities in Peesonal Actions. 1125 tion against her husband, when her title accrued during coverture ;"* if the husband sell or dispose of his wife's separate personal prop- erty without her consent, express or implied, her right of action is suspended during coverture only;^^ and where a husband and wife enter on land in her right, and by their joint occupation ac- quire title by adverse possession, limitations will not begin to run against heirs of the wife in favor of vendees of the husband until after the husband's death. ^^ In Arkansas, where a husband conveys in fee land of the wife in which he has curtesy, limitations will not run against the vendee of the wife until the husband's death.®' In Kentucky, the right of a married woman to bring suit for the re- covery of land which was her separate estate and was sold by the husband, is not barred until the expiration of fifteen years after the death of her husband.''* Under the Tennessee Code, providing that a husband and wife shall not be dispossessed of the real estate of the wife by any judgment against the husband, where a stranger has taken possession of the land of the wife, and a joint action by the husband and wife is barred by limitation, the wife can sue in her own name, and need not wait until the death of her husband to enforce her right. ^^ In Louisiana, prescription does not run against the wife for purchasers of her property from her husband, though she be separated in property.™ In Texas, limitations run against a married woman's right to recover a community home- stead conveyed by her husband in direct hostility to her home- 64. Michan v. Wyatt, 21 Ala. 813. tions will commence to run against 65. Jenkins v. McConico, 26 Ala. her from the same time, unless she 213. sets up the disability~in reply. Gray 66. McLeod v. Bishop, 110 Ala. v. Adams, 19 Ark. 289. 640, 20 So. 130. 68. Stepheiis v. McCormick, 68 Ky. 67. Jones v. Freed, 43 Ark. 357. (5 Bush) 181. See also, Louisville & Where the husband wrongfully N. R. Co. v. Thompson, 105 Ky. 190, sells the separate property of the 20 Ky. Law Eep. 1110, 48 S. W. 990. wife, a cause of action accrues to her 69. Key v. Snow, 90 Tenn. (5 at the time of the sale and delivery Pickle) 663, 18 S. W. 351. of the property; and in a suit by her 70. Prudhomme v. Dawson, 3 Mart. for the property, after the death of N. S, (La.) 161. the husband, the statute of limita- 1126 Statutes of Limitation. stead rights.'^^ In Pennsylvania, where a husband conveyed with- out his wife joining in the conveyance, limitation will not run against her right until the death of her husband/^ In South Carolina, a purchaser from the husband alone of the wife's in- heritance will not be protected by the statute of limitations, as against the wife, until the statutory period has run out after the husband's death.'' § 240a (7). Recovery of property purporting to have been con- veyed by wife. In Illinois, where a husband and wife executed a dead of land belonging to the wife under such circumstances that the title of the wife did not pass, but merely the husband's estate by curtesy, the statute of limitations did not run against the estate in fee re- maining in the wife during the existence of the husband's life es- tate.'* In Kentucky, where two of the grantors in a deed were married women, and the deed was void as to them for failure of their husbands to join therein, limitations did not run in favor of the grantee in possession of the land as against them during cover- ture.'^ Plaintiff's right of action for the recovery of her inter- est in land, which she claims by inheritance, accrues when a vendee 71. Sanders v. Word (Tex. Civ. W. Va. — Mexritt v. Hughes, 36 W. App.), 110 S. W. 205; Hussey v. Va. 356, 15 S. E. 56. Moser, 70 Tex. 43, 7 S. W. 606. As 74. Higgins v. Crosby, 40 111. 360. to the disposition of exempt property 75. Furnish's Adm'r v. Lijly, 27 of the wife, see Alsup v. Jordan, 69 Ky. Law Rep. 226, 84 S. W. 734. Tex. 300, 6 S. W. 831, 5 Am. St. Rep. Where a wife, in attempting to con- 53. vey her land, fails to convey title, 72. Culler v. Motzer, 13 Serg. & E. owing to the recital in the certificate (Pa.) 356, 15 Am. Dec. 604. of acknowledgment that she merely 73. Jones v. Reeves, 6 Rich. Law releases her dower, her coverture does (S. C.) 132. not prevent the running of limita- See as to the rule in other States: tions against her from the time the Mo. — Bradley v. Missouri Pac. Ry. grantee takes possession of the land, Co., 91 Mo. 493, 4 S. W. 427. claiming the absolute title. Brown N. G. — Summerlin v. Cowles, 101 v. Swango (Ky.), 28 S. W. 156. N. C. 473, .7 S. E. 881; Leggett v. Coffield, 58 N. C. 382. Disabilities in Peksonal Actions. 1127 to whom she has joined with her husband in conveying the title in fee simple enters into possession, claiming title, and her recovery is barred by the Kentucky statute, limiting, even to persons labor- ing under disability, the right to sue for recovery of real property to thirty years.™ The Louisiana statute of limitation begins to run against an action by a widow to set aside a sale under a mort- gage given by her to secure her husband's debts at the date of the dissolution of the marriage.^' In North Carolina, where a married woman joined in a deed with her husband, but there was no privy examination of her, there was no adverse possession, as against her heir, until after the death of her husband.'^ In Pennsylvania, a married woman who with her husband is a beneficiary in a con- veyance of land, and who reconveys it to the grantor, may enforce her title herself or through the trustee, the reconveyance being adjudged invalid ; and she is not within the exception of the stat- ute, extending the period- of limitation in favor of persons under disability.'^ In South Carolina, where the inheritance of a mar- ried woman has been conveyed, but not in accordance with law, a suit by her to recover the land after the death of her husband will not be barred by the statute until five years after his death.^ In Tennessee, where the husband and wife join in a conveyance of the wife's land, which is void as to the wife, she has seven years after she becomes discovert within which to bring her action f^ and ad- verse possession under a registered deed of a married woman is, with or without privy examination, and disregarding infancy or coverture, a bar to any suit by the wife or those claiming through ter.^ In Texas, it has been held that where a married woman ex- 78. Bradley v. Burgess, 87 Ky. 648, 79. Thompson v. Oarmichael, 133 10 S. W. 5. See also, Mantle v. Beal, Pa. 478, 15 Atl. 867. 83 Ky. 133; -Stephens v. MxsCormick, 80. Brown v. Spand, 3 Mill, Const. 68 Ky. (5 Bush) 181; Gill v. Faunt- (S. C.) 13. leroy'a Heirs, 47 Ky. (8 B. Mbn.) 81. King v. Nutall, 66 Tenn. (7 177. Baxt.) 231. 77. Brownson v. Weeks, 47 Iia. 82. Shields v. Riverside Imp. Co., Ann. 1043, 17 So. 489. 90 Tenn. (6 Pickle) 633, 18 S. W. 78. Kincaid v. Perkins, 63 N. C. 356. 282. 1128 Statutes of Iimitation. ecutes a power of attorney to her husband to convey her land, and lie sells and executes a deed of such land under such power in 1872, and dies in 1889, and she does not commence an action to re- cover the land until more than four years after, the act of 1895, which removed the exception which prevented limitations from running against married women, her action is barred by the ten- year statute of limitations, as against such purchaser and his gran- tees, who have had continued possession since 1872.*^ In West Vii^ ginia, where a wife owning land in fee, not her separate estate, makes a deed purporting to convey the land in fee, which deed is void because of the nonjoinder of her husband, the grantee's pos- session is adverse to her and her husband, and twenty years of such possession will bar her right, though she may have remained married during the whole twenty years ; but she may maintain a suit during coverture to recover the land, though ten years of such possession may have elapsed.'* § 240a (8). Effect of separation from husband. In Missouri, the fact that a husband and wife are living apart under such circumstances as to constitute an abandonment of the wife by the husband, which would authorize her to sue for the possession of her real estate, does not impose an obligation on her to sue therefor, and th9 statute of limitations does not begin to 83. Williams v. Bradley (Tex. Civ. and acknowledgment, convey land to App.), 67 S. W. 170. a purchaser, and put him in possea- The provision deferring the run- sion, such purchaser is entitled to ning of the statute of limitations " If hold that possession until the death during coverture a sale of the lands of the husband, and the wife and her of the wife be illegally effected," does heirs, or any one claiming under not apply to a case where a deed is them, have no right of entry until the void as not having been properly ae- husband's death, and right of action knowledged by the wife. Harris v. does not accrue to them, nor does the Wells, 85 Tex. 312, 20 S. W. 68. statute of limitations run against 84. Merritt v. Hughes, 36 W. Va. them, until his death. Central Land 356, 15 S. E. 56. Co. v. Laidley, 32 W. Va. 134, 9 S. Where husband and wife, by a deed E. 61, 35 Am. St. Rep. 797, 3 L. R. void as to the wife, for want of a A. 826. proper certificate of her examination Disabilities in Peesonal Actions. 1129 ran against her on that account.^^ The Kentucky statute author- izes a wife abandoned by her husband to sue and be sued only after being empowered by equity, and the three-year limitation of a married woman's right to sue to recover real property, after the disability is removed, commences to run from the date of the judgment, and not from the date of the abandonment.^" In Louisi- ana, a wife's paraphernal funds having first gone into the partner- ship of which her husband was a member, and afterwards into the corporation of which he was and is a stockholder, and been used in its business, the indebtedness to the wife remains absolutely im- prescriptable in so far as the husband is concerned, so long as the marriage exists, though she be judicially separate from him.^^ In Washington it has been held that, after the lapse of three years, d married woman, who had remained in Dakota after her husband had left to take up his residence in Washington, cannot maintain an action in Washington for the wrongful taking of her personal property in Dakota after the departure of her husband, as her residence in Dakota at the time of the taking, in matters relative to her separate property rights, was not affected by the change in the husband's residence, and as the Dakota statute limits the time of bringing such actions to three years.^^ § 240a(9). Effect of disability on joint action of husband and wife. In California, where a married woman may sue without joining her husband, limitations run against her ; but, where the husband is a necessary party, she is, under the Code, deemed under disabil- ity, and limitations cannot be urged.*' In Georgia, where the hus- band is the only person who can legally bring suit for land, the 85. Graham v. Ketchum, 193 Mo. 87. In re Leeds & Co., 49 La. Ann. 15, 90 S. W. 350; Throckmorton v. 501, 21 So. 617. Pence, 121 Mo. 50, 25 S. W. 843. 88. McCain v. Gibbons, 7 Wash. 86. McDanell v. Landrum, 87 Ky. 314, 35 Pac. 64. 404, 9 S. VV. 823, 12 Am. St. Rep. 89. Moody v. Southern Pac. Co., 400. 167 Oal. 786, 141 Pac. 388 ; Code Civ. Proc., § 352. 1130 Statutes of Limitatiow. title to wliicli was derived througli the wife, the statute of limita- tions runs during the coverture.^" In Kentucky, actions by hus- band and wife, as to lands granted to her during coverture, are barred by the seven-year law, though not actions by the wife after his decease.^^ In Maine, where a wife, acquiring land by inheri- tance, was disseised, with her husband, during coverture, they could enter at once, and hence limitation ran against them both from that tirne.'^ In Maryland, a feme covert is within the saving clause of the statute, and the plea of limitations is no bar to an action by husband and wife on an executor's bond, to recover a le- gacy given the wife, who was covert at the time of the probate of the will, though brought more than twelve years after the passing of the bond.^^ In North Carolina, the statute of limitations is no defense to an action by a husband and wife to recover land under a lost deed which is alleged to have conveyed to them the fee simple in the land in question, since the husband has no interest or estate separable from the wife's, and since her right cannot be barred because she is under the disability of coverture.'* In an action in which husband and wife are plaintiffs, in Pennsylvania, for a libel on the wife, the statute of limitations cannot be pleaded dur- ing her coverture.'^ In Tennessee, if there be a disseisin during coverture, it is of the entire joint estate, and the husband and wife must jointly bring suit to recover the possession. If they neglect to sue for seven years, during which period there is an ad- verse possession of the land, their joint right of action will be barred.'^ In Texas, in an action against a railroad company for 90. Shlpp r. Wingfield, 46 Ga. 593. 93. Knight v. Brawner, 14 Mi. 1. 91. Neal v. Robertson, 33 Ky. (2 94. Johnson v. Edwards, 109 N. C. Dana) 86. 466, 14 S. E. 91, Z6 Am. St. Rep. 580. Where a woman was a feme covert See also, as to the effect of cover- before possession of her lands was ture: Wheeler v. Piper, 56 N. C. taken by defendant, and has been 249; Williams v. Lanier, 44 N. C. 30; ever since, the statute of limitations Caldwell v. Black, 37 N. C. 463; Al- ia no bar to a suit by the husband len v. Gentry, 4 N. C. 411. and wife. Marshall v. McQueen, 13 95. Bailey v. Reed, 14 Phila. (Pa.) Ky. (3 Litt.) 468. 167. 92. Melius V. Snowman, 21 Me. (6 96. Weisinger v. Murphy, 39 Tenn. Shep.) 201. (2 Hea4) 674. Disabilities in Personal Actions. 1131 personal injuries inflicted on plaintifE and his wife while travel- ling as passengers on defendant's road, a plea of limitations to an amended petition making the wife a party to the suit is not available, conceding that it set up a new cause of action, because pleaded against a married woman ; the exception of such a woman from the operation of the statute applying in this case, as in others arising thereunder.^'' § 240.a(10). Effect on husband of wife's disability. The Connecticut statute of limitations does not run in favor of the husband against the claim of his wife for her separate property, placed by her in his hands to manage, invest, and account for.^' In Missouri, where the right to the possession of the separate es- tate of the wife is vested in the husband, limitations will begin to run against him from the accrual of the right, in spite of the dis- ability of the wife to sue, and though his interest is not liable for his sole debts, and his wife's joinder in a conveyance of the land is necessary.'^ In ITew York, where defendant and wife, at the time residing in France, agreed in a marriage contract to mort- gage a certain estate, situated in New York, as security for their daughter's dowry, the statute of limitations did not run against an action on the agreement during the coverture of the daughter.-"- In Pennsylvania, since a husband cannot maintain an action against Where a husband and -wife joined 97. Texas & P. Ry. Co. v. Gwalt- in an action for personal injuries to ney, 3 Willson Civ. Cas. Ct. App. the wife, the cause of action being (Tex.) 684. barred unless the wife's coverture A suit by a husbilnd and wife on. a saved her right to sue, the action be- note was held barred by the statute ing essentially that of the wife, as of limitations, as the wife's disabil- recognized by the statute, and the ity did not prevent the joint action, husband being a mere formal party, Wells v. Oockrum, 13 Tex. 127. her coverture suspended the bar of 98. Appeal of Comstock, 55 Conn, the statute, though on the recovery 214, 10 Atl. 559. of judgment the husband might re- 99. Arnold v. Willis, 128 Mo. 145, duee it to possession subject to the 30 S. W. 517. wife's equity. Thompson v. Oincin- 1. De Pierres v. Thorn, 17 N. Y. nati, etc., Ey. Co., 109 Tenn. 268, 70 Super. Ct. (4 Bosw.) 366. & W. 612. 11321 Statutes of Limitation. his wife, limitations do not begin to run against a claim by him against her until after her death.^ § 240a(ll). Effect on husband's right to wife's property. In Georgia, the husband may sue for his minor wife's land at any time within three years after her becoming of age.^ In Kentucky, a husband in right of his wife, or in his own right, may collect money due his wife on final settlement by an administrator of her former husband, and the coverture does not prevent the running of the statute.^ In Mississippi, choses in action of the wife, accruing during coverture, vest immediately in the husband the right to sue for them, and therefore the statute then begins to run, notwithstanding the coverture.^ In Missouri, the right of a husband to the possession of his wife's real estate, prior to the Act of 1889, giving her a right to sue for the possession of her realty, was a right against which limitations ran.® In Ohio, a husband and wife, barred by the statute of limitations from recovering the wife's land in an action for ejectment after twentyrone years' adverse en- joyment, are not helped by the statute relating to the interest of husbands in the estates of their wives.'' § 240a (12). Effect on wife's heirs of surviving husband's interest. Where a husband made partition of his wife's land, the running of the statute of limitations against her heirs, as to the lands not partitioned to her, did not begin at the date of her death, but was suspended during the continuance of the husband's estate "by the curtesy.^ In Arkansas, the statute of limitations does not com- 2. In re Gracie's Estate (Orph. 6. Vanata v. Johnson, 170 Mo. 269, Ct.), 34 Pittsb. Leg. J. (N. S.) 9; 70 S. W. 687. See also, Glasgow v. Appeal of Union Trust Co., Id., af- Missouri Car & Foundry Co., 229 Mo. firmed 158 Pa. 521, 27 Atl. 1083. 585, 129 S. W. ftOO. 3. Bush V. Lindsey, 14 Ga. 687. 7. Thompson's Heirs' Lessee t. 4. Hargis v. Sewell's Adm'r, 87 Green, 4 Ohio St. 216. Ky. 63, 7 S. W. 557. 8. Seawell v. Berry, 55 Fed. 731. 6. Cook V. Lindsey, 34 Miss. 451. See also, Beattie v. Wilkinson, 36 Fed. 646. Disabilities in Peesoitai- Actiofs. 1133 mence to run against the heirs of a deceased wife, as against a husband, having an estate by curtesy, who sells the entire estate, until the termination of the curtesy.* In Connecticut, the statute of limitations regarding lands does not commence running until after the right of entry accrues. Hence, where a married woman dies seized of land, the statute of limitations does not begin to run against her heirs till the death of her husband, who was ten- ant by curtesy.^" In Kentucky, limitation does not commence to run against the heirs of the wife, as to her realty, until the death of the husband, who is tenant by curtesy.^^ In Missouri, as against the heir of a married woman, whose husband survives her and is entitled to an estate in her lands as tenant by the cur- tesy, the statute of limitations runs from the expiration of his estate, and not from her death.'^^ In New York, the statute of limitations cannot be set up in bar to a recovery against the grand- children of a person dying seised, against whom there was no adverse possession, where, at his death, the mother of the lessors, through whom the estate descended to them, was under coverture, against whom the statute had not begun to run, and the action is brought within ten years after the decease of their father, the tenant by the custesy.-'^ In North Carolina, where a married woman joined in a deed with her husband, but there was no privy examination of her, there was no adverse possession as against her heir, until after the death of her husband.^* In Ohio, heirs of a wife are not entitled to bring an action to recover her land, which her husband 9. Banks v. Green, 35 Ark. S4. &5, overruling Valle v. Obenhause, 63 10. Claj-k V. Vaughan, 3 Conn. 191. Mo. 81; Smith v. Patterson, 95 Mo. 11. Meraman's Heirs v. Caldwell's &Z5, 8 S. W. 567. Heirs, 47 Ky. (8 B. Mon.) 33, 46 Am. 13. Moore v. Jackson, 4 Wend. (N. Dec. 537; Butler v. McMillan, 88 Ky. Y.) 58. 414, 11 S. W. 363. See also, Gudgell 14. Kinoaid v. Perkins, 63 N. C. Ty«3ings (Ky.), 10 S. W. 466; Base- 282. Decedent having been seised of man's Heirs v. Batterton, 31 Ky. (1 land during coverture, her husband's Dana) 432. estate by the curtesy for his life sus- 12. Dyer v. Brannock, 66 Mo. 391, pended limitations as a bar to her 27 Am. Rep. 35-9; Dyer v. Wittier, heirs during its continuance. Hill v. 89 Mo. 81, 14 S. W. 518, 58 Am. Rep. Lane, 149 N. C. 267, 63 S. E. 1074. 1134 Statittes of Limitation. had conveyed without her joining, until after the death of tho husband, surviving his wife.-'^ In Pennsylvania, where the hus- band dies in possession of land in right of his wife, an action then accrues to her heirs, and the statute of limitations does not begin to run until then.-''' In Tennessee, where the husband acquired land in the right of his wife, and conveyed the same by deed, and de- livered the possession thereof, the wife not uniting in the convey- ance, the statute of limitations did not commence to run against the heirs of the wife until the death of the husband/' § 241. Imprisonment. Under the statute of James, the disability arising from im- prisonment relates to a restraint of one's liberty under process or color of law, or an involuntary restraint that prevents the person from fully availing himself of the remedies provided for the enforcement of his legal rights. Thus, in this country it has been held that a person held in slavery is imprisoned, within the meaning of the term as used in these statutes, -"^^ and that the disability does not cease until he is emancipated.-^^ In New York, the saving is restricted to persons imprisoned on a criminal charge, or in executioi^ under the sentence of a criminal court for a term less than life; and the provision is the same in Wisconsin, Missouri, California, Oregon, Minnesota, ISTevada, North Caro- lina, South Carolina, Arizona, Dakota, Idaho, Montana and Utah ; while in Maine, Vermont, Massachusetts, Rhode Island, Alabama, Colorado, Florida, Georgia, Ohio, Pennsylvania, Marylan(f, Ne- braska, Texas, and Wyoming this disability applies to any person 15. Craxjraft v. Roa,ch, 5 Ohio Dec. (4 Yerg.) 299; Berry v. Berry's 467. See also, Koltenbrock v. Cra- Adm'r, 20 S. W. 654, 15 Ky. Law- craft, 36 Ohio St. 584. Eep. 865. See also, Do-wna v. Allen, 16. Ege V. Medlar, 82 Pa. 86; 78 Tenn. {10 Lea) 653; Ponder v. ■Shallenberger v. Ash-worth, 2^5 Pa. Cox, 26 Ga. 485. (1 Casey) 153; Marple v. Myers, 13 19. Price v. Slaughter, 1 Cin. E. Pa. (2 Jones) 133. (Ohio) 429. See also, Moore's Les- 17. Royston v. Wear, 40 Tenn. (3 see v. Armstrong, 10 Ohio 11, 36 Am. Head) 8. Dec. 63, 73, n., as to the general rule 18. Matilda v. Crenshaw, 12 Tenn. stated in the text. Disabilities iisr Peesonal Actions. 1135 " imprisoned," and therefore applies in all those instances to which the statute of James applied, and embraces persons im- prisoned upon civil as well as criminal processes, or deprived of their liberty by any process of law or statute. In Illinois, in order to be within the saving of the statute, the person must be impris- oned upon a criminal charge ; in Michigan, in the State prison ; and in Arkansas, imprisoned " beyond the limits of the State." In Connecticut, ISTew Hampshire, Iowa, Kansas, New Jersey, Ken- tucky, Mississippi, Tennessee, Delaware, Virginia, West Virginia, and New Mexico, imprisonment is not recognized as constituting a disability, and no saving exists in favor of persons restrained of their liberty.^" In those States in which imprisonment constitutes a disability, the circumstance that the plaintiff might have commenced an action upon a claim existing at that time, but did not, does not deprive him of the saving of the statute,^^ as it is well settled that the statute does not prevent a person under a disability from suing if he elects to do so;^^ nor is he obliged to sue simply because he' can; nor even if he should bring an action while the disability existed, and failed in it upon technical grounds, would he be deprived of the saving of the statute when the disability is removed. In Texas it has been held that one is " a person in prison," within the statute, stopping the running of the statute as to such 20. As to what constitutes im- here. Turner v. Shearer, 72 Mass. prisonment, gee State v. Calhoun, 50 (6 Gray) 437. Kan. 523, 33 Pac. 38, 34 Am. St. Eep. Under the Michigan statute of 141, 18 L. R. A. 838, holding that 1897, § 9733, postponing limitations the phrase " under legal disability " while plaintiff is in the State prison, includes a person imprisoned j Wood it has been held that the London, On- V. Ward, Fed. Cas. No. 17,9&5. tario Insane Asylum is not the State It has been held in Massachusetts prison contemplated by the statute. that the statute of limitations be- Alexander v. Thompson, 195 Fed. gins and continues to run while the 31. debtor is within the commonwealth, 21. Piggott v. Ilush, 4 Ad. & El. although brought h€re under a war- 913. rant for crime, and then imprisoned 22. Chandler v. Villett, 8 Saund. 117k, 13i0. 1136 Statutes of Limitatioit. person, when the sheriff after arresting him wrongfully moves him before his broken leg is in proper condition, and while he is con- fined in jail awaiting trial, and while he is absent from the jail as an attached witness, in the custody of the sheriff.^ § 242. Alien enemy. In Maine, Vermont, Massachusetts, New York, North Carolina, Kentucky, Missouri, South Carolina, Michigan, Wisconsin, Cali- fornia, Oregon, Minnesota, Alabama, Nevada, Arizona, Dakota, Idaho, and Utah, the statutes contain an exception in favor of a person who is a citizen of a country at war with the United States, providing that during the continuance of such hostilities the statute shall be suspended and not considered as a part of the period lim- ited for the commencement of an action. In Nevada, it is provided, however, that a citizen of a State in rebellion against the United States government shall not be treated as an alien. None of the statutes of the other States contain this exception, and consequently in none of the other States is there any saving in favor of an alien enemy.^* § 242a(l). Disability intervening after accrual of cause of action. In general. After the statute of limitations has commenced to run, no sub- sequent disability will interrupt it.^^ The rule is universal, with 23. Lasater v. Waites (Tex. Civ. fled therein, though this is' not al- App.), 67 S. W. 518, judgment rev'd lowed to extend beyond necessity Lasater v. Waits, 95 Tex. 553, 68 S. arising from war or death. 130 U. W. 500. S. 336; Murray v. CSiieago & N. W. 24. By the strict rule of the com- Ry. Co., 93 Fed. Eep. 868, 871, 3'5 C. mon law, where the statute makes no C. A. 62; Hill v. Phillips, 14 R. I. exception, the courts can make none. 93. See supra, § 6, n. 4. Amy V. Watertown, 130 U. S. 320, 9 25. D. C— Gibson v. Ruff, 8 App. Sup. Ct. 537, 32 L. Ed. 953. But a D. C. 262. disability " happening by an inevit- Ky. — Loyd v. Loyd's Adm'r, 20 Ky. able necessity " is now recognized as Law Rep. 347, 46 S. W. 485. constituting an exception to the stat- W. Va. — Mynes v. Mynea, 47 W. ute of limitations, though not speci- Va. 681, 35 S. E. 935. Disabilities in Personal Actions. 1137 the exceptions provided in the statute itself, and certain casea where the statute is suspended when it becomes impossible under the law for plaintiff to begin his action, that, when the period of limitation has once begun to run, it cannot be postponed, suspended, or interrupted by any subsequent condition.^" Limitation, having begun to run against the ancestor, continues to run against the heir under disability." Any disability of heirs to whom title to land descends after commencement of adverse possession against the ancestor does not extend their time for bringing ejectment therefor beyond the twenty years limited to the ancestor.^* Where a right of action for the possession of land held adversely accrues while the holder of the legal title is a resident of the county, in the absence of a statutory provision therefor, the running of limi- tations is not arrested by any intervening disabilities of the par- ties.^ Where adverse possession starts before plaintiff's predeces- sor secures title that such predecessor wills the property as a life estate to claimant's mother, with the remainder in fee to claim- ant, does not postpone the running of the statute in favor of the one holding by adverse possession during the existence of the life es- tate.^" After limitation has begun to run against a note, it con- tinues to run, though the note is transferred to one undec dis- ability.^^ The loss of the ability of the creditor to sue a municipal corporation by reason of the repeal of its charter suspends the operation of the statute of limitations until its successor, or- ganized under a new charter, takes benefits from the property of the old corporation.^^ 26. Congregational Church Bldg. 29. Milton v. Pace, 85 S. C. 373, See. V. Osborn, 153 Cal. 197, 94 Pac. 67 S. E. 458. 881. 30. Roe v. Doe eao dem. Eowe, 159 27. Loyd v. Loyd's Adm'r, supra; Ala. 614, 48 So. 1033. Doty V. Jameson, 39 Ky. Law Rep. 31. Meyer v. Christopher, 176 Mo. 507, 93 S. W. 638; Shaffer v. Detie, 580, 75 S. W. 750. 191 Mo. 377, 90 S. W. 131. 32. Broadfoot v. City of Fayette- 28. Messinger v. Foster, 115 App. ville, 134 N. C. 478, 33 S. E. 804, 70 Div. 689, 101 N. Y. Supp. 387. Am. St. Rep. 610. 72 1138 Statutes of Limitation. § 242a (2). Infancy. A statute of limitations having begun to run against one is not interrapted by the succession of a minor to his. right.'* The fact that certain plaintiffs, in an action to quiet title, or in an action to redeem from a mortgage foreclosure sale, are minors, who claim title through descent, does not toll the statute of limitations, where it had commenced to run during the lifetime of their ancestor.^ Where limitations against the recovery of real property commenced running in a person's lifetime, the running of the statute was not suspended after his death during the infancy of such person's heir.'^ Where the mother of infant complainants, under whom they claimed as heirs in an action to recover land held adversely, did not die until after the statute of limitations had commenced to run, the statute was not arrested by the provision excepting in- fants from the operation of the statute ; and hence, where no action was brought to recover the property until after the bar of the statute had become complete, the infant's right was barred.*^ Where infancy exists when a cause of action accrues, the time for commencing the action is extended for a certain period after the infant becomes of age; but, if the statute has already begun to run against the ancestor, it is not interrupted by his death and the supervening disability of his infant heirs, in the absence of pro- visions to the contrary.^' Where limitations began to run against an administrator by reason of adverse possession of land, a pos- 33. Munroe v. Wilson, 68 N. H. Supp. 273, under Code Civ." Proe., §§ 580, 41 Atl. 240; Wilson v. Harper, 375 and 408. 2i5 W. Va. 179. Under Code Civ. Proc., § 375, pro- 34. McNeill v. Schumaker, 94 Neb. viding that, if a person who might 544, 143 N. W. 845; Lyons v. Carr, sue to recover real property or de- 77 Neb. 883, 110 N. W. 705. fend an action brought against him 35. Fore v. Berry, 94 S. C. 71, 78 for that purpose is, when his title S. E. 706; Satoher v. Grice, 53 S. C. descends, within the age of 21 yea.rs, 126, 31 S. E. 3. the time of such disability is not a 36. Dawson v. Edwards, 189 111. part of the time limited for commenc- 60, 59 N. E. 590. ing the action, the fact that the stat- 37. Scallon v. Manhattan Ry. Co., ute has commenced to run against 185 N. Y. 359, 78 N. E. 284, rev'g the mother at the time of her death, judg. 113 App. Div. 262, 9S N. Y. and devolution of her title on her Disabilities in Peesoktal Actions. 1139 thumous heir of the intestate, horn after the administrator's ap- pointment, could not avail himself of the disability of infancy to stop the running of the statute.^^ The running of the statute against the right of action of a married woman is not interrupted by her death, where her infant child takes only such right of action as she had.^^ The running of limitations against a person is not interrupted by his death, but continues to run against his heirs, though they be infants, the heirs in such instance not being within the saving clause of West Virginia Code 1906, c. 104, § S.** § 242a(3). Coverture. As stated in a previous section, when the statute of limi- tations has once begun to run, it is not interrupted by the subsequent disability of coverture.^^ Coverture does not stop the running of limitations against a married woman taking a note after maturity.*^ Limitations having begun to run against a trustee or an undisclosed agent acting as a prin- cipal, are not suspended by the subsequent coming forward of a married woman as cestui que trust or as the undisclosed principal.'*' Under Kentucky Statutes, § 2525, the running of limitations on a cause of action for fraud is not interrupted by plaintiff's mar- riage after the accrual of the right of action.** Where a wife paid then infant child, does not affect the v. Woodford, 48 W. Va. 449, 37 S. E. right of the child to assert her dis-- 580. ability o.f infancy as a ground for 41. See § 340, supra. State v. the suspension of the statute. Mills Macy, 73 Mo. App. 437. Where the V. Thompkins, 95 N. Y. Supp. 963, 47 act of limitations begins to run Misc. Rep.' 455, judgm€nt rev'd Mills against a feme sole, her marrying V. Tompkins, 97 N. Y. Supp. 9, 110 -will not suspend its operation. App. Div. 312. See also, Meiggs v. Anonymous, 3 N. C. 416. Hoagland, 74 N. Y. Supp. 234, 68 42. Causey v. Snow, 133 N. C. 336, App. Div. 183. 29 S. E. 359; Graves v. Howard, 159 38. Jenkins v. Jensen, 24 Utah 108, N. 0. 594, 75 S. C. 998. 66 Pac. 773, 91 Am. St. Rep. 783. 43. Barden v. Stickney, 132 N. C. 39. Patton v. Dixon, 105 Tenn. 97, 416, 43 S. E. 912, rehearing, 130 N. 58 S. W. 299. C. 62, 40 S. E. 842, denied. 40. Pickens v. Stout, 67 W. Va. 44. Fox v. Hudson's Ex'x, 150 Ky. 42a, 68 S. E. 354. See also, Talbott 115, 150 S. W. 49. 1140 Statutes of Ltmitation. a mortgage on the homestead, which her husband had assumed, in order to prevent foreclosure, without intending to relinquish her right to repayment, the statute of limitations having already be- gun to run against the mortgagee's right to foreclose, it was not suspended as to her right of subrogation because of her coverture, but was barred in twenty years after the mortgagee's right to foreclose accrued, as provided by statute.*^ Though Mills' Ann. St. Colo., § 2941, provides that, where the person to whom a cause of action on notes accrues is a married woman, the statute of limi- tations does not run until the disability of coverture is removed, the subsequent marriage of a woman who was single when her right to sue on notes accrued does not prevent the running of the statute; and hence, under Wyo. Eev. St., § 3464, providing that a caiise of action is barred in this state if barred in the state where it arose, plaintiff, after the time limited by the Colorado statute, cannot maintain an action on a note executed to decedent, when the cause arose in Colorado while decedent was single, though she married before the action was barred.^'' § 242a (4). Insanity. The provision suspending, in favor of idiots, lunatics, insane per- sons, and persons beyond seas, the operation of the six-year statute of limitations in respect to claims cognizable in the court of claims, is restricted to persons laboring under such disabilities at the time their claims accrued, and cannot be invoked by onp whose disabilities subsequently arose.^'' Where the statute of limitations The object of the statute of limi- 45. Charmley v. Charmley, 135 Wis. tations of 1814, containing distinct 297, 103 N. W. 1106, 110 Am. St. provisions in favor of infants and Eep. 827. femes covert, was to give increased 46. Bliler v. Boswell, 9 Wyo. 57, 61 efficacy to an adverse possession, and Pac. 867, 59 Pac. 798. diminish the savings in the Act of 47. De Arnaud v. United States, 1796; but it gives no protection to 151 U. S. 483, 14 Sup. Ct. 374, 38 L. the feme covert unless slie derived her Ed. 344; Oliver v. Pirllam, 34 Fed. title by descent or devise during co- 127. verture. Boyce's Heirs v. Dudley, 47 Ky. (8 B. Mon.) 511. Disabilities in Peesonal Actions. 1141 lias begun to run, subsequent insanity will not interrupt it^* Iowa Code, § 3453, providing that the times limited for actions shall be extended in favor of insane persons, so that they shall have ai year after termination of disability, applies only where plaintiff is insane when the cause of action accrues, and not where he be- comes insane a few hours after the injury for which he sues, though on the same day, and as a result of the injury.*^ A statute provid- ing that, if a person entitled to bring a certain suit " is, at the time the cause of action accrued " under certain disabilities, as in- sanity, " the time of such disability is not a part of the time limited for the commencement of the action," refers only to dis- ability existing at the time the cause of action accrued.^" § 243. Injunction. Except in those States where a saving is expressly made in favor of parties, where the commencement of an action is en- joined, the fact that an injunction has been procured preventing the bringing of an action upon a certain claim does not save it from the operation of the statute; nor can a court of equity make any order which will prevent the running of the statute during such period, but the remedy of the party is through an application to the court for an injunction to restrain the party from pleading the statute.^^ But in Vermont, ISTew York, Ark- ansas, Iowa, Illinois, Kentucky, Missouri, Minnesota, North Caro- 48. Calumet Electric St. Ey. Co. v. tions accruing during disability. Mabie, 66 111. App. 235. See also, Black v. Ross, 110 Iowa 113, 81 N. Hale's Heirs v. Ritchie, 142 Ky. 424, W. 229. 134 S. W. 474; McCutchen v. Currier, 50. Kelly v. Gallup, 67 Minn. 169, 94 Me. 362, 47 Atl. 933. 69 N. W. 813. 49. Roelefsen v. City of Bella, 121 51. Barker v. Millard, 16 Wend. Iowa 153, 96 N. W. 738. (N. Y.) 572; Robertson v. Alford, 21 Where the holder of a matured Miss. (13 Smedes & M'.) 509; Ing- note became insane within the statu- raham v. Regan, 23 Miss. 213; Rice'a tory period, his guardian was not en- Heirs v. Lowan, 5 Ky. (2 Bibb) 149; titled to maintain suit thereon more Doughty v. Douglity, 10 ?f. J. Eq. than 10 years after the note matured, 347. In Dekay v. Darrah, 14 N. J. since section 3453 applies only to ac- L. 388, it was held that, while th» 1343 Statutes of Limitatioit. lina, and South Carolina, it is provided that, when the commence- ment of an action is enjoined, the time during which the in- junction " is in force " shall not be deemed a part of the time limited for the commencement of the action. In Alabama, Cali- fornia, Oregon, Wisconsin, Nevada, Arizona, ISTorth Dakota, South Dakota, Idaho, Montana, and Utah, the same exception is made not only where the commencement of an action is prevented by injunc- tion, but also where it is prevented by any statutory prohibition. In Mississippi,- the same provision is made where the commence- ment of an action is prohibited by law, or restrained or enjoined by the order, decree, or process of any court of the State. In Michigan, no exception is made where an action is enjoined, but it is provided that the time during which any case in chancery, commenced by any debtor, has or may be pending and unde- termined, shall not be computed as constituting any part of the time limited, as to the particular debt or subject-matter of such proceeding in chancery. It will be noticed by the language of these statutes that the suspension only exists while the injunction is in force, therefore the circumstance that an application has been made for an injunc- tion, and is pending, will not save the statute, whether the in- circunistances that the bringing of tect his possession of the property an action has been enjoined will not against the acts of others, and so it save the statute as to the claim in- did not, under the Code, suspend the volved, yet. that a court of equity un- operation of the statute. Fincke v. der such circumstances may enjoin a Funke, 2-5 Hun 616; Stubbs v. Ripley, party from setting up the statute in 39 Hun 636; McQueen v. Babcock, bar of the action. In Van Wagonen 41 Barb. 337; 8 Keys 428; 3 Abb. V. Terpenning, 122 N. Y. 222, 25 N. App. Dec. 139, distinguished. In E. 254, 46 Hun 423, it was held that Brehm v. City of New York, 104 N. an injunction order will not be con- Y. 186, 10 N. E. 158, where the plain- strued to restrain acts beneficial or tiff was prohibited from bringing suit not injurious to the rights of the until after the lapse of thirty days party in whose behalf it was ob- from the presentation of the claim, tained, unless its words clearly have the running of the statute was held that important effect; and that the suspended during the thirty days, injunction does not stay the com- See Dickinson v. Mayor, etc., 92 N. mencement of the action, as it did Y. 584. not deny to plaintiff the right to pro- Disabilities in Peesokal Actions. lliS JTmction is or is not subsequently granted; and if the statute runs upon a claim while a petition for an injunction is pending, but before it is granted or denied, the claim is barred, as the sus- pension exists only while an injunction is actually in force.^^ § 244. Absence of defendant from state, statutory provisions as to. In several of the States the statute contains a provision that if at the time a cause of action accrues against a person he shall be out of the State, the action may be commenced within the time limited after he comes into the State, and that if after a right of action has accrued against a person he shall be absent from and reside out of the State, the time of his absence shall not be taken as any part of the time limited for the commencement of the action. This is substantially tbe provision existing in the statutes of Maine, Vermont, New Hampshire,^^ Massachusetts,^* Khode 52. Tliat a resident in one State may there be enjoined from inequit- ably relying in another State upon a foreign statute of limitations, see Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859, 879, 885, n. And generally, as to enjoining a party from setting up the statute in defense in cases of fraud and conceal- ment, see Holloway v. Appleget, 55 N. J. Eq. 583, 40 Atl. 27, 63 Am. St. Rep. 827; 13 Harvard L. Rev. 330. As to enjoining reliance upon a con- fession of judgment when the origi- nal debt is barred by limitation, see Cheek v. Taylor, 2.2 Ga. 127; Brown V. Parlcer, 28 Wis. 21; Lockhart v. Fessenich, 58 Wis. 588, 17 N. W. 302; Earner v. Price, 17 W. Va. 523; Shriver v. Garrison, 30 W. Va. 456, 4 S. E. 660. 53. In New Hampshire, the statu- tory provision is: "If the defend- ant in a personal action was absent from and residing out of the State at the time tlie cause of action ac- crued, or afterward, the time of such absence shall be excluded in comput- ing the time," etc. Public Stats. (1900), ch. 317, § 8. In Vermont, Vt. Stats. 1906, §§ 1563 (1311), in addition to the provisions stated in the text, after the words " is absent from and resides out of the state," the provision, " and has no known property within the State which can by the common process of law be at- tached, the time of his absence shall not be talven as part of the time limited for the commencement of the action;" and substantially the same provision exists in Rhode Island. General Laws (1909), ch. 234, § 5. 54. Under Mass. Pub. Stats, c 197, § 11, in computing the period of limitation, the time of the debtor's absence from the State is not excluded 1144 Statutes or Ijmitation. Island, Florida, Missouri, Minnesota, South Carolina,^ Califomia, Michigan,^^ Nevada, Tennessee, Arizona, Dakota, Idaho, Montana, Utah, New York, " and Mississippi as to the second clause only,^ and Texas as to the first clause only. In New Jersey, the pro- vision is substantially the same, but does not apply in all actions.^ In Alabama, the exception is, " when any person is absent from the State during the period within which a suit might have been brought," such period is not to be computed;'''* and substantially the same provision exists in Connecticut.^^ In Delaware, the pro- vision is the same as in Vermont, except that if at the time when the cause of action accrues the defendant is out of the State, action unless it is of such a character as to work a change of his domicil. Slo- cum V. Riley, 145 Mass. 370, 14 N. E. 174, Whitton v. Wass, 109 Mass. 40. 55. See Maccaw v. Crawley ( S. C. ) , 37 S. E. 934. 56. In Michigan, the exception in 3 Comp. Laws, 1897, § 9736, as to commencing personal actions, when the defendant is absent from the State, applies by analogy to the limi- tation of ten years prescribed by sec- tion 9751 on a judgment creditor as to enforcing the judgment. Newlove V. Pennock, 123 Mich. 260, 82 N. W. 54. 57. In New York, section 401 of the Code was amended in 1888 by providing that if, after a cause of ac- tion has accrued against a person, he departs from and resides without the State, and remains continuously absent therefrom for the apace of one year or more, the time of his ab- sence is not to be counted as part of the time limited for the commence- ment of the action. Under this pro- vision it is held that both non-resi- dence and continuous absence for a year must concur in order to stop the running of the statute. Hart v. Kip, 148 N. Y. 306, 42 N. E. 712; Costello V. Downer, 19 App. Div. 434, 46 N. Y. Supp. 713; Connecticut Trust, etc., Co. v. Wead, 69 :^. Y. Supp. 518, 58 App. Div. 493. See Palmer v. Bennett, 83 Hun 220, 31 N. Y. Supp. 567, 1 N. Y. Ann. Cases, 208, and n., aff'd 152 N. Y. 621, 46 N. E. 1150. In this State, however, the second clause of the statute, section 401, is extended to cases where, after the cause of action has accrued, the de- fendant " remains continuously there- from (the State) for the space of one year or more." Bliss's Ann. Code (4th Ed.), § 401. In Arizona, see Rev. Stats. (1887) § 2324. 58. In this State the language of the statute is, '' If, after any cause of action has accrued in this State," the defendant " be absent from and reside out of the State." Code (1892), § 2748. 59. 3 New Jersey Oomp. Stats. 1911, p. 3166, § 8. 60. Alabama Civil Code, 1907, S 4844. 61. Connecticut Gen. Stats. 1903„ § 1125. Disabilities in Peesonal Actions. 1145 may be commenced within the time limited therefor " after such person shall come into the State in such manner that, by reasonable diligence, he may be served with process.*^ In Georgia, if the de- fendant removes from the State before the statute has run, " the time of his absence from the State, and until he returns to reside," is not counted."^ In Indiana, the time during which the defend- ant is " a nonresident of the State or absent on public business " is not counted; but if he resides in another State until by the laws thereof the statute has run, he may set up the bar to any cause of action which did not arise in Indiana.*^ In Iowa, the time during which a person is a nonresident is not computed.^^ In Illinois, if the defendant is absent from the State when the cause of action accrues, the action may be brought within the time limited " after his coming into or return to the State;" and if after the cause of action accrues, he departs from and resides out of the State, the time of his absence is not to be counted;"^ but this section does not apply when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue were or are residents of the State.®' In Kentucky,"^ if, when a cause of action accrues against a resident of the State, he is absent therefrom, the period of limitation is computed from his return to the State, and when a resident of the State at the time when a cause of action accrues against him, " by departing therefrom, or by absconding or con- cealing himself, or by any other indirect means obstructs the prosecution of the action," the time of such absence or obstruc- tion is not computed as any part of the period within which the 62. Delaware Amended CJode 67. Living in another State for a (1893), p. 889, I 14. sufficient time to there bar the action 63. 1 Georgia Code, 1911, §§ 4378 is not a defense when sued on return- (2783). ing home. Wooley v. Yarnell, 143 64. 1 Indiana Stats. 1914, §§ 299 III. 442, 32 N. E. 891. (398). 68. Kentucky Stats. (1909, by Car- 65. Iowa Ann. Code (1897), § 3451. roll), §§ 2531, 2532. 66. Illinois Eev. Stats. 1912, Vol. 4, Par. 7213, ch. 83, § 18. 1146 Statutes op Limitatiow. action may be commenced. In Kansas, if wlien a cause of action accrues against a person he is out of the State, or has absconded or concealed himself, the statute does not begin to run " until be comes into the State, or while he is so absconded or concealed;" and if he leaves the State, or absconds or conceals himself, after the cause of action accrues, the time of his absence or conceal- ment is not computed;"' and this is substantially the provision in Ohio.^° In Oregon, the provision is virtually the same, except that it does not expressly apply to absconding debtors.''^ In Nebraska, the provision is the same as in Kansas f^ so, also, sub- stantially in Wyoming. '^^ In JSTorth Carolina, the provision is substantially the same as in New York, except that it expressly applies to " judgments rendered or docketed," and provides for their enforcement after the debtor's return to the State.''* In Maryland,''^ by section 4 of the statute, " no person absenting himself from this State, or that shall remove from county to county after any debt contracted, whereby the creditor may be at an uncertainty of finding out such person or his effects, shall have any benefit of any limitation herein contained; but nothing contained in this section shall debar any person from removing himself or family from one county to another for his convenience, or shall deprive any person leaving this State, for the time herein limited, of the benefit thereof, he leaving effects sufiicient and known for the payment of his just debts in the hands of some person who will assume the payment thereof to his creditors." And by section 5 " if any person liable to any action shall be absent out of the State at the time when the cause of action may arise or accrue against him, he shall have no benefit of the limita- tion herein contained, if the person who has the cause of action 69. Kansas Gen. Stats. (1909, § 73. Wyoming Oomp. Stats. 1910, 5613 (4^65). §§ 4307 (3463). 70. 3 Ohio Stats. (1910, by Page 74. North Carolina Code, 1908, { & Adams), 1123. 366 (162). 71.1 Oregon Laws (1910, by 75. 3 Md. Ann. Ciy. Code, 1911, art. I^rd), § 16. 57. 72. Nebraska Rev. Stats. § 7577. Disabilities in PEESoiTAii Actions. 1147 shall commence the same after the presence in this State of the person liable thereto within the terms herein limited." In Wis- consin, the provision is the same as in Michigan, except that when the defendant is out of the State when the cause of action accrues the statute does not begin to run until he returns or removes to the State."' In Virginia, " where any right shall accrue against a person who by departing without this State, or by absconding or concealing himself, or by contiiiuing to reside with- out this State, or by any other indirect ways or means shall obstruct the prosecution of such right, the time that such obstruc- tion may have continued shall not be computed as any part of the time within which the said right might or ought to have been prose- cuted. But this section shall not avail against any other person than him so obstructed, notwithstanding another might have been jointly sued with him, if there had been no such obstruction. And upon a contract which was made and was to be performed in another State or country, by a person who then resided therein' no action shall be maintained after the right of action thereon is barred by the laws of such State or country;'"' and a similar provision exists in West Virginia.'^ In New Mexico, if a defendant removes from the Territory after a cause of action accrues, the time he is so a nonresident is not computed.'^ In Louisiana, Pennsylvania, and Colorado, no saving exists because of the defendant's absence from the State. 76. 3 Wisconsin Stats. (1913, by 79. New Mexico Comp. Laws Nash & Belitz), ch. 177, § 4231. (1897), § 2921. See Amy v. Watertown, 130 U. S. As to what constitutes an absence 320, 326, 9 Sup. Ct. 537, 32 L. Ed. from this state, see the following 953. cases: 77. Virginia Code (1904, Pollard), Iowa. — Jenks v. Shaw, 99 Iowa 604, § 3933. 68 N. W. 900, 61 Am. St. Rep. 256. 78. West Virginia Ann. Code Md. — Mason, Chapin & Co. v. (1913, by Hogg), § 4431, ch. 104, Union Mills Co., 81 Md. 446, 33 Atl. § 18. 311, 29 L. R. A. 273. See Fisher's Ex'rs v. Hartley, 48 Mass. — ^Converse v. Johnson, 146 W. Va. 339, 37 S. E. 578, 86 Am. St. Mass. 20, 14 N. E. 935. Rep. 39, 54 L. E. A. 215. Minn. — ^Kerwin v. Sabin, 50 Minn. 1148 Statutes of Limitatioh'. § 245. What constitutes an absence from the state. Under the statute of Maine, and the other States whose statutes accord therewith, it is an important question whether a mere tem- porary absence of the defendant when the right of action accrued, as, for a day or week, constitutes such an absence as prevents the statute from attaching in his favor; and it may be said that even in such a case the statute does not begin to run until his return to the State, unless the circumstances existing during the period of such temporary absence were such that the service of legal process against him could have been made so that the plaintiff could obtain a judgment against him personally.^" The evident purpose of this clause of the statute is to insure to a plaintiff the full statutory period within which to commence his action against a defendant; and if he is temporarily absent from the State when the right of action accrues, so that process cannot, at that time be served upon him, so that the plaintiff cannot obtain a personal judgment against him, the saving clearly ap- plies in favor of the plaintiff; and this construction is strength- ened by the language of the succeeding clause in the same sec- tion, which provides that if, after a right of action has accrued against a person, " he shall be absent from and reside out of the State," the time of such absence shall not be taken as any part of the time limited for the commencement of an action; thus 320, 53 N. W. 643, 36 Am. St. Kep. S. G. — Latimer v. Trowbridge, 52 645, 17 L. R. A. 325 and n. S. C. 193, 29 S. E. 634, 68 Ak. St. ZVe6.— Omaha & F. Land & Trust Rep. 893. Co. V. Parlcer, 33 Neb. 775, 51 N. W. Term.— TuTCott v. Yazoo & M. V. R. 139, 29 Am. St. Rep. 506. C!o., 101 Tenn. 102, 45 S. W. 1067, O^iio.— Powell V. Koehler, 52 Ohio 40 L. R. A. 768, 70 Am. St. Rep. 661. St. 103, 39 N. E. 195, 49 Am. St. Rep. Tea!.— Wilson v. Daggett, 88 Tex. 705, 26 L. R. A. 480, 40 Cent. L. J. 375, 31 S. W. 618, 53 Am. St. Rep. 187 and n.; Stanley v. Stanley, 47 766. Ohio St. 325, 24 N. E. 493, 21 Am. 80. Palmer v. Shaw, 16 Cal. 93; St. Rep. 806, 8 L. R. A. 333 and n. Vanlandingham v. Huston, 9 111. 135; Pa.— Bates v. Cullum, 177 Pa. 633, Ohenot v. Lefevre, 8 111. 637; Penley 35 Atl. 861, 55 Am. St. Rep. 753, 34 v. Waterhouse, 1 Iowa 498; Ward v. L. R. A. 440. Cole, 33 N. H. 452, 64 Am. Dec. 378; Hill V. Bellows, 15 Vt. 727. Disabilities in Peesowal Actions. 1149 clearly showing that in the one case the legislature intended that the words " if he shall be out of the State " were to be construed literally, and apply to a temporary absence, while in the other not merely absence from, but residence out of, the State by the defendant is essential to save the plaintiff's cause of action from the operation of the statute. In some States this language is qualified by a provision which deprives the plaintiff of the saving, if the defendant left known property in the State which, by the common and ordinary processes of law, could be attached; and in the States where this provision exists, where the defendant sets up the statute in bar of an action, and the plaintiff replies, the defendant's absence when the cause of action accrued, or his subsequent absence from and residence out of the State, he must also negative the fact that the defendant had any knovra property within the State which, by the common and ordinary processes of law, could be attached, or his replication will be bad.^^ In order to bar a claim, the defendant must show that he has resided in the State for the full statutory period.^^ It is held in Virginia, and it would seem that this is the general rule, that where the removal from the State antedates the con- tract sued upon, and before the cause of action accrued, the pro- vision as to absent debtors has no application.*^ It is not the domicile but the residence out of the State which suspends the statute. Thus in a N'ew York case,** where the defendant retained his domicile in New York, but actually resided 81. In Stevens v. Fisher, 30 Vt. it was held that the replication and 200, a replication to a plea of the proof were both defective, because statute s-tated that before and after not bringing the defendant within the cause of action accrued the de- all the exceptions of the statute, fendant was out of the State, and 82. Bohannan v. Cliapman, 13 Ala. that the action was brought when he 641. for the first time returned into it, 83. Ficklin's Ex'r v. Carrington, 31 which was within eight years before Gratt. (Va.) 219; Embrey v. Jemi- the oommencement of the action. It son, 131 U. S. 336, 9 Sup. Ct. 776, being found that the defendant- had 33 L. Ed. 172; Dorr's Adm'r v. Eohr, been, since and before the action was 82 Va. 359, 3 Am. St. Kep. 106. commenced, a resident of New York, Si. Haggart r. Morgan, 5 N. Y. 1150 Statutes of Limitation. for three years in IsTew Orleans, it was held, that he was to be deemed a nonresident within the meaning of the statute. A mere temporary absence from the State upon business or other purposes, without any intention of remaining permanently, at least for a time, is not regarded as an absence within the mean- ing of the term as implied in these statutes.*^ The law gives a creditor six years continued presence of his debtor within the State after his cause of action has accrued; and if he is continuously a resident of the State for the statutory period of six years after the debt is created and becomes due, the statute runs in his favor, although he is living under an assumed name and purposely conceals himself .^^ 432, 55 Am. Dec. 350. See also, Weitkamp v. Loehr, 53 N. Y. Super. Ct. (31 Jones & S.) 79, 11 Civ. Proo. R. 36; Burroughs v. Bloomer, 5 Denio (N. Y.) 532; Cole v. Jessup, 10 N. Y. 96, 10 How. Prac. (N. Y.) 515, Seld. Notes, 230; Satterthwaite ■V. Amei-crombie, 23 Blatch. (U. S.) 308, 34 Fed. 543. 85. In re Wrigley, 8 Wend. (N. Y.) 134; Frost & Dickinson v. Bris- bin, 19 Wend. (N. Y.) 11, 33 Am. Dec. 423; Armfield v. Moore, 97 N. C. 34, 2 S. E. 347; Boardman v. House, 18 Wend. (N. Y.) 512; Tomes V. Barney, 35 Fed. 112. But in Ten- nessee under the Code the rule is otherwise. Kemp« v. Bader, 86 Tenn. 189, 6 S. W. 136. In Barney v. Oel- richs, 138 U. S. 529, 11 Sup. Ct. 414, 34 L. Ed. 1037, it was held that the words " reside out of the State " in section 100 of the New York statute of limitations, must be taken to mean the taking up of an actual abode or dwelling-place elsewhere, and not a mere temporary sojourn for transient purposes ;■ and that mere temporary absences from the State, without any intention to remain permanently, upon business or for other purposes, could not be deducted from the statu- tory period to extend it beyond the six years. A foreign ambassador at London or Washington is so far " absent " and a non-resident, that, as he can- not be sued while holding such of- fice, the statute of limitations does not run in his favor against his cred- itors. Magdalena Steam Nav. Co. v. Martin, 3 E. & E. 94; Musurus Bey v. Gadban (1894), 2 Q. B. 352, 356. 86. Engel v. Fischer, 103 N. Y. 40O, 7 N. E. 300, 55 Am. Rep. 818; Rhoton v. Mendenhall, 17 Or. 199, 20 Pac. 49. In some cases it is held that the return must be open and notorious, and under s-uch circum- stances that the creditor could with reasonable diligence find liis debtor and serve him with process. Little V. Blunt, 33 Mass. (16 Pick.) 359; Hill v. Bellows, 15 Vt. 727; Hysinger V. Baltzell, 3 Gill & J. (Md.) 158; Didier v. Davison, 2 Barb. Ch. 477; Ford v. Babeoek, 4 N. Y. Super. Ct. (2 Sandf.) 518; Cole v. Jessup, 10 N. Disabilities IN Peesonax Actions. 1151 The question what constitutes a resident is one which has been often considered by the courts, and upon ^hich no definite rule can be said to exist It is mainly a question of fact to be deter- mined by the jury.^' In the United States Supreme Court,** where a traveling saleman residing in St. Louis (Mo.), who sent his wife and children to Brooklyn (N. T.), where they took up their residence and commenced to keep house and have since resided, was held not to become a resident of l^Tew York when he sent his family into that State, nor until he joined them there, it was held, that by retaining his residence for purposes of busi- ness in St. Louis, he did not become a resident of New York, within the meaning of its statutes of limitation, until he changed his actual residence to that State, although his domicile might be there. In these statutes the word " residence " is not synony- mous with " domicile." ^ § 245a. Absence at time of accrual of cause of action. The absence or removal of defendant from the State is a statu- Y. 96, 10 How. Prac. 515, Seld. Notes run. Indeed, in most of the States, 2S0; Dorr v. Swartwout, 1 Blatehf. the statutes differ in their provisions (U. S.) 179; 3 Pars. Cont (6th ed.) under this head, and should be ex- 96; Ang. Lim. (2d ed.) 216. See aniined to ascertain the applicatioa Sl^ht T. Kane, 1 Johns. Cas. (X. T.) of a decision thereunder. 76; Poillon V. Lawrence, 77 N. Y. 87. See Frost & Dickinson v. Bris- 207. In Rhoton v. Mendenhall, 17 bin, 19 Wend. (N. Y.) 11, 32 Am. Or. 199, 20 Pac. 49, it was held that Dec. 423. under the statute, the word " con- 88. Penfield v. Chesapeake, etc., R. oeal," as used therein, means some Co., 134 U. S. 351, 10 Sup. Ct. 566, affirmative met done in the State, 33 L. Ed. 940. such as passing under an assumed 89. In re Thompson, 1 Wend. (N. name, change of occupation, or some Y.) 45; Bell v. Pierce, 51 X. Y. 12; other act which will prevent the Union Hotel Co. t. Hersee, 79 X. Y. community in which he lives from 454. 35 Am. Eep. 536; TazeweU Co. knowing who he is or where he came v. Davenport, 40 111. 197; Strang v. from. In several of the States, as Smith, 43 Miss. 499; Eeg. v. IJniver- Virginia, West Virginia, and Ne- sity of Oxford, L. R. 7 Q. B. 471; braska, the statute provides, as it Blackwell v. England, S El. & El. does in Or^on, that if u. person shaU 549; Hewer v. Cox, 3 El. & El. 42S; be absent from the State, or conceal Atty.-Gen. v. McLean, 1 H. & 0. 75a kimself, etc, the statute shall not 1152 Statutes of Lzmitattott. tory and not a judicial exception to tlie running of limitations."* Unless there is an exception in the statute, limitations will begin to run at the time of the accrual of the action, regardless of the presence or absence of the debtor or creditor.^^ When a cause of action arises, limitations in the country where the obligor resides immediately begin to run, and, if in another country than the State of Kansas, it is held in that State that an action on a contract is not barred by limitations under the statute of that State, unless the bar of limitations has fallen in such other coun- try .^^ It is also held in Kansas that where defendant, against whom a cause of action for fraud accrued, was at that time ab- sent in another State, limitations did not begin to rim as to him until his return to that State f^ and that the running of limitations, as against a gTantee assuming a mortgage debt, may be suspended by the absence of the grantee from the State.^^ In Ohio the plea of the statute is not good as against a nonresident defendant absent when the right of action accrued. The statute does not begin to run until he comes into the State or enters his appear- 90. Weaver v. Davis, 2 Ga. App. (Gen. St. 1909, §§ 5613, 5614), re- 455, 58 S. E. 786. lating to limitation of actions be- Where a limitation statute con- tween nonresidents. Stock Exchange tained no exception saving from its Bank v. Wykes, 88 Kan. 750, 129 operation suits against defendants Pao. 1131. who had removed from the State, no A cause of action on a note cannot such exception can be implied as to be maintained in Kansas under Code actions falling v^ithin its terms. Id. Civ. Proc, § 22 (Gen. St. 1901, 91. Rock Island Plow Co. v. Mas- § 4450), where both plaintiff and de- terson, 96 Ark. 446, 133 S. W. 213. fendant were nonresidents of Kansas 92. Hays Land & Investment Co. v when the cause of action accrued, Bassett, 85 Kan. 48, 116 Pac. 475. and defendant resided in a foreign Where a resident of Oklahoma State until the cause of action was bought goods in Kansas in January, barred by the laws of that State. 1907, and resided in Oklahoma until Brunner v. Martin, 76 Kan. 862, 93 the action was barred there, and the Pac. 165. See Nickel v. Vogel, 76 account was assigned to a Kansas Kan. 625, 92 Pac. 1105. tank, which sued in Kansas in 1911, 93. Sherman v. Havens, 86 Kan. 99, as defendant was at no time a resi- 19 Pac. 370. dent of Kansas, the action was not 94. Hendricks v. Brooks, 80 KjBto. barred by Code Civ. Proc, §§ 20, 21 1, 101 Pac. 622. Disabilities in Peesowai, Actions. 1153 ance by pleading.^^ Under the Texas statute it is held that when a defendant resides out of the State at the time a cause of action arises, such absence will not interrupt the running of limitations ;^ and that a judgment on which execution has been issued is not a cause of action within the purview of the statute, stopping the running of limitations during the absence from the State of one against whom plaintiff has a cause of action.^'' Under the Idaho Though one who assigns a mort- gage note and guaranties payment within two years of maturity can stand in place of the maker, and, like him, invoke the statute of limi- tations, it is unavailing where the running of the statute has been sus- pended by the continuous absence of the maker from the State from the time of giving the note. Spink v. Newby, 64 Kan. 883, 67 Pac. 437. Under section 15, c. 95, Gen. St. 1897, providing that if, when a cause of action accrues against a person he be out of the State, the statute shall not begin to run until he comes into the State, the fact of personal pres- ence in the State, and not of domi- cile, controls the question of limita- tion. Investment Securities Co. v. Bergthold, 60 Kan. 813, 58 Pac. 469; Hoggett v. Emerson, 8 Kan. 263. The last mentioned section of the Code applies to a defendant in eject- ment claiming title by adverse pos- session, though he had possession through a tenant during such ab- sence. Ard V. Wilson, 60 Kan. 857, 66 Pac. 80, afif'g 8 Kan. App. 471, 54 Pac. 511. The statute of limitations does not run on a cause of action for the re- covery of real property, while the person who claims title thereto is ab- sent from the State. Ard v. Wilson, 73 supra; Corby v. Moran, 58 Kan. 278, 49 Pac. 83. The absence from the State of the owner of real estate upon which there is a mortgage, but for which he is not personally liable, will not prevent the statute of limi- tations from running against the mortgage lien. Hogaboom v. Flower, 67 Kan. 41, 72 Pac. 547. 95. Marriott v. Columbus S. & H. Ey. Co., 30 Ohio Cir. Ct. E. 419. 96. Jaffray Eealty Co. v. Solomon's Estate (Tex. Civ. App.), 157 S. W. 170, since an action to revive a judg- ment did not accrue until the judg- ment had become dormant, where at the time the debtor had left the State, his nonresidence did not sus- pend limitations against a proceeding to administer his estate in Texas af- ter an action to revive was barred. See also Habermann v. Heidrich ( Tex. Civ. App.), 66 S. W. 106, 795. The fact that the judgment defendant had not resided in Texas for 10 years next before the bringing of an action upon the judgment of a for- eign State does not prevent the opera- tion of the statute of limitations. Tourtelot v. Booker (Tex. Civ. App.), 160 S. W. 393. 97. Spiller v. Hollinger (Tex. Civ. App.), 148 S. W. 338; Tex. Eev. St. 1895, art. 3367. In view of Eev. St. 1895, arts. 1154: Statutes of Limitation. statute, providing that, if a person be absent from the State when a cause of action accrues against him, the action may be commenced within the time limited after his return, the cause or nature of the absence from the State is held to be immaterial as affecting limitations.^^ Under the express provisions of the Illinois limi- tation act, the bar of the statute of limitations is not available to defendants out of the State when the action accrued, who have not since come into the State f^ and the Florida statute has no ref- erence to defendants who reside out of the State when the cause of action accrued.^ In California a mortgagor's absence from the State, while sus- pending the running of the statute of limitations as against the mortgagee's right to foreclose the mortgage, will not prevent the attachment of other liens after the time limited has elapsed, so as to give the liens priority over the mortgage f and on the recording- of a deed of the property prior to the maturity of the note, limita- tions begin to run inmiediately on the maturity of the note, not- 2336a, 3361, a judgment on which no barred by the four years' limitations, execution has been' issued within 13 Liner v. J. B. Watkins Land and months after rendition is a cause of Mort. Co., 29 Tex. Civ. App. 187, 68 action under article 3367, stopping S. W. 311. the running of limitation on any 98. Anthes v. Anthes, 21 Idaho 305, cause of action when defendant is 121 Pac. 553. without the Jurisdiction. Id. Under 99. Janeway v. Burton, 201 111. 78, Kev. St. 1895, arts. 1664, 2336a, 3358, 66 N". B. 337, aff'g 103 111. App. 403. a judgment on which execution was 1. Haviland, Clark & Co. v. Har- firat issued within 13 months after gis, 9 Fla. 15. its rendition becomes a dormant judg- 2. Brandenstein v. Johnson, 140 ment after the lapse of 10 years, and Cal. 39, 73 Pac. 744. so is a cause of action within the Although under Cal. Code Civ. Proc, purview of article 3357. § 351, a nonresident mortgagor can- Where the first of a number of not plead the two-year limitations of notes of which the defendant had as- section 339, subd. 1, if he has not sumed the payment fell due Febru- been in the State, such is not true as ary 1, 1891, at which time the maker, to one who has acquired the interest who was also a defendant, was ab- of the mortgagor through an execu- sent from the State, continuing ab- tion sale. Foster v. Butler, 164 Cal. sent until the fall of 1893, suit 623, 130 Pac. 6. brought January 37, 1896, was not Disabilities in Peesowal Actiows. 1155 ■withstanding tlie mortgagor continued absent from the State after the note's maturity.^ In North Dakota an action to foreclose a mortgage on realty is held to be an action in personam, within the statute, excepting from period of limitations the time during which defendant was absent from the State;* while in Utah such an ac- tion is held under the statute to be essentially one in rem, in which- personal service is not necessary except to support judgment for a deficiency after sale, and since such deficiency may be sued for as a personal debt of the mortgagor, the mortgagor's absence from the State would not extend the period of limitations in favor of a first mortgagee, so as to prevent a junior mortgagee from interposing the statute of limitations against the senior mortgage.^ In North Carolina the time when defendant was absent from the State it is held should not be reckoned against heirs of a mortgagor suing in equity to redeem land sold under the mortgage.^ Where a widow begins an action for dower more than twenty years after her hus- band's death, the cause of action is not exempted from the limita- tions of the New York Code Civ. Proc, § 1596, by section 401, providing that if, when a cause of action accrues, a person is with- out the State, the action may be commenced within the time limited 3. Filippini v. Trobock, 134 Cal. of limitations as against a' subse- 441, 66 Pac. 587, rev'g 62 Pac. 1066, quent claimant was not suspended by so held since, under Code Civ. Proc, the mortgagor's absence from the § 726, the grantee of mortgaged prop- State, it was suspended as between erty, whose deed is recorded, is a nee- the prior mortgagee and the mort- eaaary party to the foreclosure pro- gagor. ceedings. 6. McFarland v. Cornwell, 151 N. 4. Colonial & United States Mortg. C. 428, 66 S. E. 454, where the pW- Co. V. Northwestern Thresher Co., 14 sonal presence of a defendant is es- N. D. 147, 103 N. W. 915, 116 Am. sential to the granting of relief. Re- st. Rep. 642; Colonial & United visal 1905, § 366, providing that the states Mortg. Co. v. Flemington, 14 time of a person's absence from the N. D. 181, 103 N. W. 929, 116 Am. State for one year or more after a St. Rep. 670; Paine v. Dodds, 14 N. cause of action accrues against him D. 189, 103 N. W. 931, 116 Am. St. shall not be deemed or taken as any Rep. 674. part of the time limited for commeno- 5. Boucofski v. Jacobsen, 33 Utah ing action, applies, and the time of 165, 104 Pac. 117, while the running his absence is not to be counted. 1156 Statutes of Limitatiok. after his return, by the fact that the defendants have not been in the State^ since the husband's death, as by section 441, subd. 1, the general provisions of the Code as to limitations do not apply to a case where a different limitation is specially prescribed by law.' The Michigan statute providing for a deduction from the period of limitation of the time the debtor is absent from and resides out of the State, applies to every cause of action mentioned in the chapter, which includes debtors by judgment recovered in courts of record, as well as those recovered in courts not of record.* The Minnesota statute providing that, if when a cause of action accrues the defendant is out of the State, the action may be brought within the time limited after his return, and that the time of his absence is not part of the time limited for the commencement of the action, applies to actions the subject-matter of which arises or originates in the State, and where the debtor is out of the State when the cause of action accrues or departs therefrom.^ That section of the Code of Alaska, which provides that the statutory term of limita- tion may be extended when the cause of action lies against a per- son " out of the district therein at the time whenit accrues," ap- plies only to a state of facts or a condition wherein the cause of action matures against a person or persons whose status is that of a resident or residents of Alaska.^** If when a cause of action 7. Wetyen v. Fiek, 178 N. Y. 233, itations, it was held that plaintiff 70 N. E. 497, aff'g 90 App. Div. 43, could not recover. Howard v. Coon, 85 N. Y. Supp. 592. 93 Mich. 442, 5 N. W. 513. 8. Conrad v. Nail, 24 Mich. 375; 9. Powers Mercantile Co. v. Ble- Mich. Comp. Laws, § 5369. then, 91 Minn. 339, 97 N. W. 1056; Where, in an action on a note exe- Mich. Gen. St. 1894, § 5145. cuted in another State brought 10. Murray v. Farrell, 2 Alaska against the maker nearly 20 years 360. after its maturity, during which For the application of various stat- time he had resided in Michigan, it utes, see Willis v. Rice, 157 Ala. 252, was admitted that no payment had 48 So. 397, holding that Ala. Code been made on the note, and no proof 1896, c. 72, § 2805, is confined to lim- was oifered to show that the action itations provided for in tliat chapter; was not barred by the statute of lim- Beatty v. Lewis (N. J. Ch.), 68 Atl. Disabilities in Personal Actions. 1157 accrues in favor of a resident of Wisconsin against a nonresident thereof, the latter be out of the State, the statute of limitations of that State upon the enforcement of such cause of action there will not run against the former while the latter remains so absent.^^ Under the Montana statute, absence from the State of the debtor's personal representative after his death does not suspend the run- ning of limitations.^^ § 245b. Departure after accrual of cause of action. Under the express provision of the New York Code of Civil Procedure, § 401, the running of limitations is suspended during the time of continuous absence of over a year's duration from the State.^^ The amendment of 1888, changing this section so that it reads, " departs from and resides without the State and remains continuously absent therefrom " instead of "or remains continu- ously absent therefrom," does not alter the rule that nonresidence is absence, and that casual visits to the State do not destroy the continuity of such absence.^* So in West Virginia where a judg- 95, holding that N. J. Gen. St., statutes in derogation of the common p. 1975, § 15, applies only to the law are to be strictly construed, cases designated in the seven preced- 13. Miller v. Warren, 87 N. Y. ing sections of the statute; Casey v. Supp. 1011, 94 App. Div. 192, judg. American Bridge Co., 116 Minn. 461, aflf'd in 183 N. Y. 539, 75 N. E. 1131. 134 N. W. Ill, holding that the limi- 14. Connecticut Trust & Safe Do- tation in Okla. St. 1893, § 435, is posit Co. v. Wead, 173 N. Y. 497, 65 qualified by the tolling provision of N. E. 361, 93 Am. St. Rep. 756, modi- Bection 21 of the same act; Jamieson fying order, 69 N. Y. Supp. 518, 58 T. Potts, 55 Or. 292, 105 Pac. 93, App. Div. 493, modifying judgment, showing the application of Or. B. & 67 N. Y. Supp. 466, 33 Misc. Rep. C. Comp., § 16; Williams v. Iron Belt 374; Lawrence v. Hogue, 93 N. Y. Building & Loan Ass'n, 131 N. C. 267, Supp. 998, 105 A.pp. Div. 347, 16 N. 43 S. E. 607, showing the application Y. Ann. Cas. S98. of N. C. Code, § 163. Where in December, 1889, a New 11. Adkins v. Loucks, 107 Wis. 587, York debtor gave up his house, stored 83 N. W. 934. his furniture, and went to Florida 12. Smith V. Smith, 310 Fed. 947; for the recovery of his son's health; Rev. Codes Mont., § 6458. This is he returned in April, 1890, remained held to be so especially in view of a little over a month at an hotel, section 6314, abolishing the rule that and then went to Europe for the 1158 Statutes op Limitatioit. ment debtor departs from the State to reside, the time of his ab- sence may be deducted from the limitation period within which the judgment lien may be enforced, though he occasionally visits or attends to business within the State/^ Under Idaho Eev. Codes, § 4069, providing that, if a person departs from the State after a cause of action accrues and the statute begins to run, the time of his absence is not a part of the time limited, the cause or nature of the absence from the State has been held immaterial as affecting limitations.-^^ The rule in Texas is that where a person resides in the State at the time of the accrual of an action against him, and then permanently re- moves from the State, the running of limitations is suspended and remains suspended until he returns to the State, though he remains away more than the full period of limitation.-^^ The same purpose, finally returning to New York in June, 1893, it was held that, although he may have been con- tinuously " domiciled " in New York, he " resided" without the State dur- ing such absences, within Code Civl Proc, § 401, and hence they were not a part of the time limited for suing on the debt. Bennett v. Watson, 47 N. Y. Supp. 569, 31 App. Div. 409; 44 N. Y. Supp. 347, 36 Civ. Proc. E. 138, 19 Misc. Eep. 360. Neither the period of five years af-. ter discovery of ground for action of absolute divorce, limited by Code Civ. Proc, § 1758, for the bringing of such an action, nor the general stat- ute of limitations, runs while the de- fendant is without the jurisdiction of the court, so that process cannot be served upon him. Gouch v. Gouch, 69 Misc. Rep. (N. Y.) 436, 137 N. Y. Supp. 476. 15. Batten v. Lowther (W. Va.), 81 S. E. 831; W. Va. Code 1913, c. 104, § 18 (section 443). 16. Anthes v. Anthes, 21 Idaho 305, 131 Pac. 553. 17. Bemis v. Ward, 37 Tex. Civ. App. 481, 84 S. W. 391. Under Rev. St. 1895, art. 3367, pro- viding that, if a person is absent from the State during any of the time that an action might be brought against him, the period of such ab- sence shall not be counted as part of the time limited for bringing the ac- tion, the running of the statute is interrupted whenever the defendant leaves the State either on business or pleasure, though he does not change his residence. Id. It is immaterial whether or not the debtor is within the State at the time of the accruing of the action where he leaves before it is barred. Dignowlty v. Sullivan (Tex. Cdv. App.) 109, S. \y. 438. In Texas, under Sayles' Ann. Civ. St. 1897, art. 3367, the statute of limitations, with reference to ac- tions for land, is suspended during the absence of the defendant from Disabilities in Personal Action's. 1159 absence from the State contemplated by the Missouri statute has been held to be such an absence as would for a considerable period render it impossible to obtain such service of process as ■would support a general judgment.^^ And where a person, after the accrual of a cause of action against him, left the State and went to another State, returning to the State left by him occasionally imtil his death, but retained his o^vnership of his homestead in the State left by him, it has been held that there was not a departure from and residence out of the State by him within the meaning of the Wisconsin statute. -^^ The absence from the State referred to in the ISTorth Dakota statute is held to be absence by one who has not established a resi- dence out of the State.^* Under the statute of Washington, pro-. Tiding that the time that a person shall reside out of the State shall not be a part of the time limited for the commencement of an action, a temporary return to the State does not deprive one who has removed therefrom of his status as a nonresident.^^ And under a similar statute in i^ew ITexico it has been held that the defendant must be a resident of the State when the cause of ac- tion accrues, and depart therefrom.^^ While a mere temporary the State. Tate v. Waggoner (Tex. tor after 10 years have elapsed. Un- Civ. App.) 149, S. W. 737. ion Nat. Bank of Grand Forks v. 18. State em rel Shipman v. Allen, Ryan, 33 N. D. 483, 137 N. W. 449. 134 Mo. App. 465, 103 S. W. 1090; 21. Dignam v. ShaflF, 51 Wash. 412, Mo. Rev. St. 1899, § 4382 (Am. St. 98 Pae. 1113; Ballinger's Ann. Codes 1906, p. 2356). See also sam« case, & St., § 4808 (Pierce's Code, § 393). 133 Mo. App. 98, 111 S. W. 633. Under Rem. & Bal. Code, § 326, 19. In re Taylor's Estate, 133 Wis. providing that service of summons 38, 111 N. W. 239; Taylor v. Thie- may be mad« upon the defendant per- man, Id.; Wis. Stat. 1898, § 4231. sonally or by leaving it at the house 20. Paine v. Dodds, 14 N. D. 189, of his usual abode, ■with some person 103 ^C. W. 931, 116 Am. St. Rep. 674; of suitable age, etc., the actual -svhere- N. D. Rev. Codes 1899, § 5210. abouts of a husband is immaterial, so TJnder North Dakota Rev. Codes long as he maintains a home at which 1905, § 6796, the absence of the judg- service may be made, when it appears ment debtor from the State tolls the that his absence was of a temporary limitations prescribed by section or casual nature. Crowder v. Mor- 6786; and the judgment will support phy, 61 Wash. 626, 112 Pac. 743. an action against the judgment deb- 22. Lindauer Mercantile Co. v. 1160 Statutes of Limitation. absence of a debtor from tbe State on a visit, or even on business, should not have the effect of suspending the statute of limitations, yet where a debtor departs from the State for the purpose of en- gaging, and does engage, in business in another State, the time he is thus absent should not be computed in estimating the time in which, under the statute, the action may be brought; and this though he may never have intended to forfeit his citizenship in the State he thus leaves.^* Where a resident, against whom a cause of action has accrued, removes his residence to another State, but continues his business in the former State and comes to the State openly and regularly Boyd, 11 N. M. 464, 70 Pac. 568 ; N. M. Conip. Laws 1897, § 2931. Wliere plaintiif, an employe resid- ing in California, was injured in New Mexico, where the laws reqiiire ac- tion for such injuries to be brought within one year, it was held, that, even if they annulled plaintiff's com- mon law right to sue, the provisions would not affect his rights unless he and defendant continued to reside in New Mexico during the full period of limitation, so that it could act both on the parties and the cause of ac- tion. Atchison, etc., Ry. Co. v. Mills (Tex. Civ. App.), 116 S. W. 852. In a Delaware case a cause of ac- ion for personal injuries was held barred where the action was not brought until after one year from the date on which the injuries were sus- tained, though defendant, immediate- ly upon the accrual of the cause of action, removed from the State and until the commencement of the action was aibsent therefrom, and that the act of 1897 (Del. Laws, p. 712, c. 594), requiring such action to be brought within one year, was not subject to the exception contained in Rev. Code 1852, amended in 1893, c 123, § 14, providing for the suspen- sion of the running of limitations where the party had departed from and resided out of the State. Lewis V. Pawnee Bill's Wild West Co., 6 Penneville (Del.) 316, 66 Atl. 471, aff'g 61 Atl. 868. 23. Nunez v. Taylor, 11 Ky. Law Rep. (abstract) 677, as the defend- ant in this case was temporarily in the State on numerous occasions after his departure from the State, it was held to be a question of fact for the jury whether his presence was of such duration or the circumstances such as to haye af- forded the plaintiff an opportunity to sue, and thus to have removed the obstruction occasioned by the depar- ture, so as to take the case out of the proviso or exception to the stat- ute. The absence from the State of de- visees stops the running of limita- tions during the period of absence as to claims against the estate for which the land devised is liable. Withers' Adm'r v. Withers' Heirs, 30 Ky. Law Rep. 1099, 100 S. W. 253. Disabilities in Peesonal Actions. ,1161 each business day during working hours, he is not absent from the State, within the Nebraska statute, providing that the time of absence from the State shall not be computed as any part of the period within which the action must be brought.^* A plaintifE suing for injuries to his land caused by the operation by defendant of a quarry on adjacent land is entitled, under the North Carolina Revisal 1905, § 366, to recover damages for acts done within three years before the commencement of the action, excluding from the computation the time defendant was absent from the State.^ In South Carolina, where the right of action for the possession of land held adversely accrued while the holder of the legal title resided in the county, his subsequent absence from the State is not a disability suspending the running of limitations.'" § 246. Joint dehors, absence of one, effect of. Where there are two or more joint debtors, one of whom is ab- sent, the statute does not run in favor of the absent debtor, although it has run in favor of the other ;^'' nor, upon the other hand, does the circumstance that one of the joint debtors is absent from the 24. Webster v. Citizens' Bank, 3 mortgage where th« mortgagee has Neb. (Unof.) 353, 96 N. W. 118; been in possession to be brought with- Neb. Code Civ. Proe. § 20. in 10 years, applying. Owens v. 25 Arthur v. Henry, 157 N. C. 438, Hornthal, 156 N". C. 19, 72 S. E. 5. 73 S. E. 206. 26. Jlilton v. Pace, 85 S. C. 373, 67 While in ejectment the absence of S. E. 458. the own'Cr from the State does not 27. Bogert v. Vermilya, 10 N. Y. suspend limitations wh^re there is a 447; Cutler v. Wright, 33 N. Y. 473; tenant in possession, against whom Denny v. Smith, 18 N. Y. 567; Brown the action may be brought, ejectment v. Delafield, 1 Denis (N. Y. ) 445. being a possessory action, a suit to Thus in Bell v. Lamprey, 67 N. H. vacate a mortgage foreclosure sale 16B, it was held as to a claim upon for fraud is equitable, and the mort- which the statute ism in six years, gagees making the sale, of whom an that the defendant, in order to avail accounting for rents and profits is himself of the statute, must show sought, are necessary parties, so that that he has resided in the State six the absence of one of them from the full years, of three hundred and six- State would stay limitations; Eevis- ty-five days in common years, and al IQiOS, § 391, subeec. 4, requiring three hundred and sixty-six days in an action for the redemption of a leap years. 1162 Stattttes of Limitatioh. State prevent the statute from running in favor of the others. Un- der the Virginia statute, providing that where a right has accrued against a person who had before resided in that State, if such per- son shall, by departing without the same, obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right ought to have been prosecuted, where a claim for money furnished by decedent in a partnership business had been incurred a sufBcient length of time to be barred by limitations, the fact that decedent's copartner was not a resident of the State, and traveled most of the time in Europe, but had frequently been within the State, did not prevent the running of the statute.^* § 247. Residence need not be continuous. In order to avail himself of the benefit of the statute of limita- tions, the party must have resided in the State, either actually or constructively, for the full statutory period. But the residence need not be continuous. If it is actual, different periods may be tacked together to make out the full period f^ and if he actually dwells in the State for the requisite period, the circumstance that his wife and family have resided in another State will not deprive him of the benefit of the statute.^* But the fact that a person does business in one State, but resides with his family in another, although he spends most of his time in the State where he does business, will not entitle him to the benefit of the statute of such State.^1 28. Lavett's Adm'r v. Perry, 98 Va. another State, but continued to do 604, 37 S. E. 33, 2 Va. Sup. Ct. Rep. business in New York, and came 507. daily to his office there. Occasionally 29. Crocker v. Clementa's Adm'r, coming into the State is held not to 23 Ala. 296. put the statute in motion where a 30. Seymour v. Street, 5 Neb. 85. person, after the cause of action ac- 31. Bennett v. Cook, 43 N. Y. 537, crues, is absent from and resides out 3 Am. Rep. 727. This rule was also of the State. Hacker v. Everett, 57 held in Bassett v. Basaett, 55 Barb. Me. 548. In Lane v. National Bank (N. Y.) 505, where the defendant, of the Metropolis, 6 Kan. 74, where after the note was given, removed to a citizen of Kansas was personally Disabilities in Peesonal Actions. 1163 Under tiie second clause of those statutes, which provide that where a debtor after a cause of action accrues against him, " shall be absent from and reside out of the State," the time of such absence shall not be taken as a part of the time limited, neither absence from the State, nor residence out of it, alone, will sus- pend the statute. Both must concur.^^ And it has been held that, under this clause, Avhere the absence from the State has not been continuous the different occasions when the debtor has been within the State may be taken together, and during the periods so computed the statute will run, provided the plaintiff by due diligence might have obtained service of process upon the defend- ant.^^ Except where the statute expressly so provides, the fact that the defendant had property subject to attachment in the State will not prevent the suspension of the statute during the period he is actually absent therefrom, as the statute follows the person and not the property.^* Under those statutes in which provision is made that if a person obstructs the service of process upon him, or the prosecution of an action pending, the " time during which he so obstructs such service or the prosecution of such action shall not be computed," it is held that absence from the State amounts to such obstruction.^^ absent from the State in which his out of the State contemplated by the residence was, it waa held that the legislature must be something more statute did not run in his favor, al- than having a mere place of abode out though he kept a furnished house in of the State, his usual place of residence, which 33. Campbell v. White, supra. was occupied by his family. See also, 34. Fisher v. Fisher, 43 Miss. 312. Conrad v. Nail, 24 Mich. 275, where 35. Poston v. Smith, 8 Bush (Ky.) it was held erroneous to charge that 589. See Barney v. Oelrichs, 138 U. the defendant's stay in another State, S. 529, 11 Sup. Ct. 414, 34 L. Ed. while his faniily resided in the State 1037, stated supra, § 245, where the of the forum, was not a residence in court said: "In Penfield v. Chesa- such other State, as the residence of peake, 0. & S. W. E. Co., 134 U. S. the defendant's family does not of it- 351, 10 Sup. Ct. 566, 33 L. Ed. 940, self, as a matter of law, determine we had occasion to consider when a the place of the husband's residence, person might be properly held to be 32. In Campbell v. White, 22 Mich a resident of the State of New York 178, it was held that the residence and entitled to bring an action which 1164 Statutes of Limitation. § 247a(l). Nonresidence — In general. The words, " when a cause of action has arisen," in a foreign State, as used in the Kansas statute of limitations, mean when the plaintiff has a right to sue the defendant in the courts of such foreign State, and have no reference to the origin of the transaction would have othem'ise been barred by the laws of the defendant's residence, and tills involved an examination of the decisions in that State in the con- struction of the words ' resident ' and ' residence,' as contained in its stat- utes." Citing Re Thompson, 1 Wend. (N. Y.) 43; Frost v. Brisiben, 19 Wend. (N. Y.) 11; Haggart v. Mor- gan, 5 N. Y. 422, and Meitkamp v. Loehr, 21 Jones & S. (N. Y.) 79; Burroughs v. Bloomer, 5 Denio (N. Y.) 532; Ford v. Babeock, S Sandf. (N. Y.) 518; Cole v. Jessup, 10 N. Y. 96; Satterthwaite v. Abercrombie, 23 Blatchf. 308, and Engel v. Fischer, 102 N". Y. 400. See In re Wrigley, 4 Wend. (N. Y.) 602, 8 Wend. 134. In Frost V. Brisbin, 19 Wend. (N. Y.) 11, it is said that the word " inhabi- tant " implied a more permanent and fixed abode than the word " resident " and " frequently imports many pri- vileges and duties which a mere resi- dent cannot claim or be subject to" and that " the transient visit of a. person for a. time at a place does not make him a resident while there — that something more is necessary to entitle him to that character." See Bartlett v. New York, 5 Sandf. (N. Y.) 44; Douglas v. New York, 2 Duer (N. Y.) 110; Bell v. Pierce, 51 N. Y. 12. As to the statute of limi- tations there were two exceptions to its operation: (1) Where the debtor was absent from the State when the cause of action accrued; (3) where the debtor, after the cause of action had accrued, departed from and re- sided out of the State. Under the first exception absence was sufficient to avert the bar, because the statute did not commence to run until the return of the debtor into the State, and such return, it was decided, must be open and notorious, so that a cred- itor might with reasonable diligence find his debtor and Serve him with process. Engel v. Fischer, 102 N. Y. 400, 7 N. E. 300, 55 Am. Rep. 818. But to bring a case within the second exception something more than absence was essential to be shown. In Wheeler v. Webster, 1 E. D. Smith, 1, Judge Ingraham said that " it was necessary to prove that the debtor departed from the State, and also that he resided out of the State. The evidence did not tend to show this. For aught that is in proof before us, the absence may have been merely temporary; excursions for pleasure or business, with a return to this State as the residence of the debtor. Mere presence was not tantamount to resi- dence under the statute, nor mere ab- sence equivalent to residence else- where. And the occasional absences of a resident of the State continuing to reside therein were not to be de- ducted in computing the statutory term. Ford v. Babeock, 4 N. Y. Super. Ct. (,2 Sandf.) 518, 539. Ap- parently, because this was obviously so, the legislature of New York, by Disabilities in Peesowai, Actions. 1165 out of which the cause of action arose.^ Limitations in Michigan apply to a right of action which accrued without the State between parties who were at the time nonresidents.'^ The statute of limi- tations as contained in Mansfield's Digest of the Laws of Arkansas, put in force in Indian Territory by Act of Cong. May 2, 1890, applies to and runs in favor of nonresidents as well as residents.^' A nonresident cannot invoke the Texas statutes of limitation, re- lating to actions for the recovery of real estate, notwithstanding he had tenants in possession of the land, and had paid all taxes thereon.'^ The words, " return to the State," in Idaho Kev. St. 1887, § 4069, apply to a nonresident debtor who enters into a an act passed April 25, 1867 (Laws N. Y. 1867, p. 1931), amended sec- tion 100 by adding after the words " and reside out of this State," the following, "or remain continuously ajbsence therefrom for the space of one year or more." Absence for the time specified was thus provided to be deducted from the time limited for the commencement of actions, so that, whetlier the defendant resided out of the State or not, such absence would suspend the running of the statute. We hold that tlie residence out of the State which operated to suspend the running of the statute under section 100 as originally framed was a fixed abode entered upon with the inten- tion to remain permanently, at least for a time, for business or other pur- poses, and as there was no evidence tending to establish such a state of fact here, the judgment must be re- versed. The same conclusion has been reached in efi'ect by many of the State courts, and reference to decisions in Massachusetts, Maine, Vermont, and New Hampshire, will be found in the well-considered opinion of the Supreme Court of Illinois in P«lls v. Snell, 130 111. 379, where the terms of the stat- ute were nearly identical with those of that of New York, and the court approved the definition of " resi- dence" as given in Re Wrigley, 8 Wend. (N. Y.) 134; Frost v. Brisbin, 19 Wend. (N. Y.) 11; and Boardman V. House, 18 Wend. (N. Y.) 533. 36. Bruner v. Martin, 76 Kan. 862, 93 Pac. 165; Kan. Code Civ. Proc. § 22; Gen. St. 1901, § 4450. 37. Belden v. Blackman, 118 Mich. 448, 5 Detroit Leg. N. 567, 76 N. W. 979. 38. Schwab Clothing Co. v. Crom- er, 1 Ind. Tex. 661, 43 S. W. 951, un- der Mansf. Dig. § 4490 39. Beale's Heirs v. Johnson (Tex. Civ. App.), 99 S. W. 1045, under Say- les' Rev. Civ. St. art. 3367. In an action to correct a certificate of acknowledgment to a deed, the non- residenoe of the parties did not pre- vent the running of limitations, wliether such action could have been brought and jurisdiction over defend- ants therein obtained in the State or not. Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595, rev'g judg. (Civ. App.) 130 S. W. 584. 1166 Statutes of Limitation. contract in a foreign State, and thereafter comes into the State, as well as to a citizen who enters into a contract within the State, and subsequently departs therefrom.*" Arizona Civ. Code 1901, par. 2964, does not operate to' prevent limitations from running against a nonresident's cause of action.*^ Where the plaintiff's right to proceed by attachment depended upon the nonresidence of the defendant, and the allegation that the defendant was a non- resident was not stricken out by amendment, and could not have been stricken out without resulting in dismissal of the case, the absence or nonresidence of the debtor who had never resided within the State, is no reply to the defense of limitations.*^ § 247a (2). Persons entitled to sue. Under Iowa Code, § 3451, excluding from computation of limi- tations the time while defendant is a nonresident, plaintiff's resi- dence is immaterial.*^ Under !N"ew York Code Civ. Pro., § 1502, plaintiff's right to sue defendant for real property occupied by the latter is not suspended by nonresidence of the defendant, so as to prevent her acquisition of title by adverse possession.** The Rhode Island statute of limitations is not suspended during plaintiff's nonresidence.*^ The " absence " spoken of in Louisiana Civ. Code 1838, art. 3508, relating to prescription, is the absence of the creditor from the domicile of his debtor ; and, where the debtor and creditor have always lived in the same place, although that place be out of the limits of the State, the creditor cannot be viewed in regard to the debtor as an absentee.*^ Where a deed to a city for a money consideration recited that the grantee should hold the land for burial purposes and no other, and after an aband- 40. West V. Theia, 15 Idaio, 167, 44. French v. Wray, 151 N. Y. 96 Pac. 932. Supp. Ii015. 41. Work V. United Globe Mines, 45. Griffin v. Woodhead, 30 R. I. 13 Ariz. 339, 100 Pac. 813. 304, 74 Atl. 417. 42. Cooper v. P. P. Most Nursery 46. Surget v. Stanton, 10 La. Ann. Co., 10 Ga. App. 351, 73 S. E. 414. 319. 43. MeNamara v. McAllister, 150 Iowa, 243, 130 N. W. 36. Disabilities iet Peesonal Actions. 1167 onment of such purpose the grantors sued in equity for a reconvey- ance and accounting or an injunction, the fact that complainants were nonresidents was of no avail to them as against the ten-year statute of limitations.*'' Under the Washington statute, plaintiff's right of action on notes made to him by defendant in another State, of which both were residents, Avas not barred by the limitations of the State where the notes were made, since the cause of action did not arise until the maturity of the notes, at which time plaintiff was a resident of Washington.*^ The purpose of South Dakota Code Civ. Proc, § 69, is to protect from loss through lapse of time rights for the enforcement of which a party has a right of ac- tion in the State courts.*' § 247a (3). Persons liable. Under the statute of Iowa, as construed by its supreme court, limitation does not run in favor of a defendant during the time he is a nonresident of the State.^ Alabama Code, § 2805, applies to a contract made in a foreign State, though the defendant was 47. Thornton v. City of Natchez, Washington, under Eem. & Bal. Code 88 Miss. 1, 41 So. 498. Wash., § 178. MeElroy v. Gates, 64 48. Freundt v. Hahn, 24 Wash. 8, Wash. 249, 116 Pac. 845. 63 Pac. 1107, 85 Am. St. Eep. 939, 49. Froelich v. Swafford (S. D.), modified 28 Wash. 117, 68 Pac. 184, 150 N. W. 476, and where the rem- under Ballinger's Ann. Codes & St. edy for the enforcement of a right § 4818. is unaflFected by the absence of de- Where defendant, while a resident fendant, his absence does not, under of Missouri, executed four notes, and Code Civ. Proc. § 69, extend the time after maturity of the first note and be- within which the action must be fore maturity of the other three he left brought. the State and never returned there- The general provisions of the In- to, and had not acquired a fixed ajbode diana statutes of limitations do not elsewhere, he was not a non-resident govern suits under Burns' Ann. St. of Missouri when the causes of ac- Ind. 1901, § 609, and hence sections tion on the last three notes accrued, 297 and 298 have no application and hence limitations did not run therein. Hollenback v. Posten, 34 against them under the first clause of Ind. App. 481, 73 N. E. 162. section 6781, Eev. St. ilo., so that 50. City of Davenport v. Allen, 120 both parties being non-residents, an Fed. 173 (C. C, Iowa), action thereon was not barred in 11 68 Statutes of Limitatton. a nonresident, and absent from the State uatil shortly before the institution of the suit.^^ The statute of limitations of Alaska can- not begin to run until there is found some one within the jurisdic- tion of the forum capable of being sued.^^ An action on a special bail bond executed in an action in Connecticut is not barred in one year after judgment in the action, where the sureties have not resided in Connecticut after accrual of the cause of action, and have not been in Connecticut, except for occasional trips therein by automobile.^^ Kentucky statute 1899, § 2531, providing for the suspension of the statute of limitations during the debtor's ab- sence from the State, does not apply to nonresident debtors.^* By the common law a statute of limitations is suspended during the defendant's nonresidence.^^ In New York, the plea of limitations is ineffectual to a defendant who has continually resided without the State. ^^ In Oklahoma, where a cause of action arose in another State, limitations do not begin to run against it until the debtor becomes a resident of the territory.^^ Under the Indiana statute, where it appears that all of the defendants, from the time that the cause of action accrued to the beginning of the suit, were nonresidents, they therefore were not in a position to invoke as a defense the statute of limitations.^* Under the Texas statute, the 51. Steen v. Swadley, 126 Ala. 616, 57. Keagy v. Wellington Nat. 28 So. eao. Bank, 13 Okl. 33, 69 Pae. 811. 52. Van Scliuyver v. Hartman, 1 58. Watson v. Lecklinder, 147 Ind. Alaska, 431. 395, 45 N. E. 72, under Burns' Rev. 53. Isenberg v. Rainier, 70 Misc. St. 1894, § 298 (Rev. St. 1881, § 297). Rep. 498, 127 N". Y. Supp. 411, under As to persons liable, in other Juris- Ckinn. Gen. St. 1902, § 1122. dictions, see: 54. Clarke v. Seay, 21 Ky. Law U. 8. — Horner v. Perry, 112 Fed. Rep. 394, 51 S. W. 589. See also By- 906 (C. C, Mo.), applying Kansas bee's Ex'r v. Poynter, 117 Ky. 109, and Missouri statutes; Stem v. Com- S5 Ky. Law Rep. 1251, 77 S. W. 698; pagnie Generale Transatlantique, 110 Tabor v. Hardin, 9 Ky. Law Re,p. Fed. 996 (D. C, N. Y.) ; St. N. J. 491. 1848 ,(1 G€n. St. p. 1188). 55. Cobb v. Houston, 117 Mo. App. 8. D. — McConnell v. Spicker, 15 S. 645, 94 S. W. 299. D. 9«, 87 N. W. 574. 56. Moloney v. Tilton, 22 Misc. Wash. — Omaha Nat. Banlc v. LiiMl- Rep. 682, 51 N. Y. Supp. 19. say, 41 Wash. 531, 84 Pac. 11. Disabilities in Personal Actions. 1169 departure from the State of a nonresident who had been tempor- arily present in the State does not suspend the running of limi- tations against a cause of action against him.^^ § 247a (4). Nature of residence. Under Mass. Eev. Laws, c. 202, § 9, excluding from the time of limitation the time during which the debtor resides out of the State, which is substantially the same as Pub. St. 1882, c. 197, § 11, the time of the debtor's absence is to be excluded only if it is such as to work a change of domicile.'''' The residence out of the State which suspends the running of the Illinois statute of limi- tations is the fixed abode entered into with the intention to remain permanently at least for a time for business or other purposes."^ The terms " residence " and " domicile " are not identical for all purposes, and their meaning is different under the rule suspending limitations by absence from the State". ^^ Wis. — ^National Bank of Oshkosh V. Davis, 100 Wis. 240, 75 N. W. 1005; Weyburn & Briggs v. Bemis, 122 Wis. 321, 99 N. W. 1050. 59. Pollard v. Allen (Tex. Civ. App.), 171 S. W. 530. 60. Nichols V. Vaughan, 217 Mass. 648, 105 N. E. 376. A decision by the United States Supreme Court that due process of law, under Const. U. S. Amend. 14, prevents a personal judgment against one not personally served within the State, even though a resident thereof, does not change this construction of Rev. Laws, c. 202, § 9. Id. And see Converse v. Johnson, 146 Mass. 20, 14 N. E. 925. Gl. Fidelity & Deposit Co. v. Shea- han, 37 Old. 702, 133 Pac. 228. To constitute a " residence out of the State" sufficient to suspend the running of the Illinois statute of lim- 74 itations, it was not necessary that there should be an actual change of domicile in the strict legal sense, but it was necessary that a fixed and permanent abode or dwelling place out of that State should have been acquired at least for the time being. Id. The 10-year statute of Illinois bars an action on a promissory note where more than 10 years have elapsed be- tween its maturity and the institu- tion of suit thereon, notwithstanding the defendant lived from time to tame in diflferent jurisdictions and had not remained in any one jurisdic- tion a sufficient length of time to bar such note. Warren v. Clemenger, 120 111. App. 435. 62. McDowell v. Friedman Bros. Shoe Co., 135 Mo. App. 276, 115 S. W. 1028. 1170 Statutes of Limitation. § 247a (5). Actions relating to specific property or interest therein. Despite the two-year limitation prescribed by California Code Civ. Proc, § 339, limitations in foreclosure of a mortgage of a nonresident do not begin to run under section 351 until he comes within the State.«^ Under Burns' Kev. St. Indiana 1909, § 298, providing that limitations do not run while the defendant is a nonresident, where a personal judgment has been procured, the statute does not bar a subsequent action to subject to the payment of the judgment property which has been fraudulently conveyed by the judgment debtor to nonresidents, though more than six years have passed."* Under Iowa Code 1873, § 2533, providing that the time during which defendant is a nonresident of the State shall be excluded, in computing periods of limitation, the right to bring an action to set aside a fraudulent conveyance to a nonresident grantee was not barred by the statute, where it was brought within five years after the grantee's conveyance of the property in con- troversy to a resident of the State.*^ An action of ejectment by a 63. San Diego Realty Co. v. Hill, section 361, providing that absence 168 Cal. 637, 143 Pac. 1031. from the State is no part of such Where a debt secured by deed ex- period, action on a foreign judgment ecuted out of the State was due when against defendant who had resided in the deed was executed, December 11, the State no more than two and one- 1875, and the debtor came into the half years was not barred. Chappell State early in 1876, and remained v. Thompson, 21 Cal. App. 136, 131 there until his death, any action on Pac. 82. the debt or mortgage deed was barred 64. Balph v. Magaw, 33 Ind. App. December 11, 1877, under Code Civ. 399, 70 N. E. 188. Proc. §§ 312, 339, barring an action Burns' Ann. St. 1908, § 299, pro- on a contract or liability, not found- viding that the time of non-residenoe ed on a writing, or founded on a writ- of defendant shall not be computed ing executed out of the State, two in the period of limitation, does not years after the cause of action shall apply to persons who at all times have accrued. Sanford v. Bergin, 156 have been non-residents. Sinclair v. Cal. 43, 103 Pac. 333. ' Gunzenhauser, 179 Ind. 78, 98 N. E. Under Code Civ. Proc. § 336, subd. 37. 1, prescribing a five-year limitation 65. Applegate v. Applegate, 107 for actions on foreign judgments, and Iowa, 313, 78 N. W. 34. Disabilities in PEESoiTAr Actions. 1171 tax deed holder out of possession does not become barred by the Kansas two-year statute of limitations, while occupied by tenants, agents, or employes of a nonresident owner.^" The nonresidence of parties to a mortgage does not prevent the running of the Ten- nessee statute of limitations (Acts 1885, p. 49, e. 9), since the only exception therein contained relates to those under disability.*' Under Mississippi Code, § 2748, where a note was given in the State, secured by a mortgage on land therein, the period of the debtor's subsequent absence from the State should not be computed as part of the time limited for the enforcement of the security against the land.*^ Under South Dakota Code Civ. Proc, § 69, nonresidence of the purchaser at foreclosure sale and her successive grantees owning the land until within ten years toll the statute, so that a junior mortgagee's action to redeem was not barred.*^ Suit to €nforce the personal liabil- ity of mortgagors after their convey- ance to a third party was not barred by limitations where the note ma- tured July, 1910, and suit was brought December, 1902, though ser- vice was not had on the mortgagors until July, 1910, where in the mean- time they had been non-residents of the State for four years and ten months. Schafcr v. Jackson, 155 Iowa, 108, 135 N. W. 622. 66. Gibson v. Hinchman, 73 Kan. 383, 83 Pac. 981. The statute excluding the time when defendant is absent from the State applies to an action of eject- ment by a judgment debtor against a purchaser at a sheriff's sale. M'or- rell V. Ingle, 23 Kan. 32. Limitation does not run against a mortgage fore- closure suit against a non-resident, though the plaintiff is in possession of the mortgaged premises as grantee of the mortgagor. Smith v. Perkins, 10 Kan. App. 577, 63 Pac. 397. 67. Christian v. John, 111 T€nn. 92, 76 S. W. 906. Shannon's Code, § 4455, suspending limitations while defendant is with- out the State, does not apply to a, suit to set aside a deed for fraud and to recover certain land, in which plaintiff may obtain complete relief by service of publication. Boro v. Hidell, 132 Tenn. 80, 130 S. W. 961. 68. Hunt V. Belknap, 78 Miss. 76, 28 So. 751. 69. Froelich v. Swofford, 33 S. D. 143, 144 N. W. 925. Where a grantee in a tax deed was at the time a non-resident, and remained so until he conveyed the property, the period of his absence was not to be considered in determining whether the statute of limitations had run in a suit by the original owner to de- termine adverse claims. Burleigh v. Hecht, 22 S. D. 301, 117 N. W. 367. H72i Statutes of Limitation. ' § 247a (G). Effect of agency within jurisdiction. Ownership of property in the State does not make a nonresident corporation or individual a " resident " so as to put in force the statute of limitations which is suspended by ISTorth Carolina Ke- visal 1905, § 366, as to nonresident defendants; neither does the appointment of a local agent on whom process can be served have that effect.™ Limitations on a cause of action against a nonresi- dent who has an office or agency in the county, out of the busi- ness carried on in which the cause of action accrued, where pro- cess may be served under Shannon's Code, Tenn., §§ 4516, 4542, 4546, are not tolled by defendant's nonresidence.'"- The statute of limitations is not suspended, as against a nonresident defendant who has an office in the State at which he does business practically every day of the year, with the exception of Sundays and holidays, and who lives in the State half the time during each year.'^ § 247a (7). Corporations. Foreign corporations come within the California statutes which prevent the running of limitations in favor of absent debtors while they are out of the State. '^ A foreign corporation is a person " out of the State," within Kansas Gen. St. 1901, § 4449,'* and within Wisconsin Rev. St., §. 4231, providing for the running of limitations after his return.''^ Limitations do not run in favor 70. Volivar v. Richmond Cedar 73. O'Brien v. Big Casino Gold Worlcs, 153 N. C. 34, 67 S. E. 42, Min. Co., 9 Oal. App. 2-83, 99 Pac. judg. rev'd 68 S. E. 200. Eevisal 1905, 209. § 366, suspending limitations against 74. Williams v. Metropolitan St. non-residents, by its terms does not Ry. Co., 68 Kan. 17, 74 Pac. 600, 64 apply to a cause of action which ac- L. R. A. 794, 104 Am. St. Rep. 377. crued prior to August 24, 1868. 75. Travelers' Ins. Co. v. Fricke, 99 Johnson v. Eversole Lumber Co., 144 Wis. 367, 74 N. W. 372, 41 L. R. A. N. C. 717, 57 S. E. 518. 557. 71. Green v. Snyder, 114 Tenn. 100, A foreign corporation which has 84 S. W. 808. acquired a domicile in the State for 72. Holt V. Hopkins, 63 Misc. Rep. the purposes of litigation is' not a non- 537, 117 N. Y. Supp. 177, judg. aflf'd resident, so as to suspend the oipera- 136 App. Div. 940, 121 Supp. 1136. tion of limitations. Travelers' Ins. Disabilities in Pebsoxal Actions. 1173 of a foreign corporation which has failed to comply with Oklahoma Const., art. 9, § 43, and become a resident.'^ The appointtaent of a local agent on whom process can be served by a foreign corpora- tion put in force the statute of limitations, which is suspended by North Carolina Eevisal 1905, § 366, as to nonresident defend- ants." Mississippi Code 1906, § 3108, applies only where a cause of action accrues in the State and the person against whom it has accrued goes from and resides out of the State, and does not apply where a nonresident alien corporation claimed adverse possession of land when such possession was by tenants against whom eject- ment might at any time have been instituted.'* South Dakota Code Civ. Proc, § 69, prevents limitations running against a nonresident corporation until it is brought within the reach of the process of the st-ate courts.''' The rule that a foreign corporation cannot avail itself of the statute of limitations under Rem. & Bal. Washington Code, § 168, does not apply to a contract limitation contained in a foreign indemnity company's bond.'" Under the statute of limitations of Nevada (Gen. St. ISTev., § 3651), a foreign corporation cannot plead limitation as a bar to a suit to foreclose a Co. of Hartford v. Fricke, 99 Wis. Goods Co. v. Cornell, 4 Okl. 412, 46 367, 78 N. W. 407, 41 L. E. A. 557, Pac. 860; Tiller v. St. Louis & S. F. denying rehearing 74 N. W. 372. An E. Co., 189 Fed. 994 (C. C, Okl.). insurance corporation not organized 77. Voliva v. Eichmond Cedar under the laws of the State, which. Works, 152 N. C. 656, 68 S. E. 200, in compliance with the statute, main- rev'g judg. Volivar v. Same, 67 S. E. tains an attorney within the State 43; Bennett v. Western Union Tele- upon whom process can be served in graph Co., 6S S. E. 202. See Green actions commenced in its courts, is v. Hartford Life Ins. Co., 139 N. C. nevertheless a non-resident, within 309, 51 S. E. 887, 1 L. E. A. (N. S.) the meaning of section 4231, Eev. St., 623; Southern Ey. Co. v. Mayes, 113 and not entitled to the benefit of the Fed. 84, 51 C. C. A. 70 (C. C. A., statutes of limitations. State v. Na- N. C. ). tional Ace. Soc. of New York, 103 78. Scottish American Mortgage Wis. 208, 79 N. W. 220. Co. v. Butler, 99 Miss. 56, 54 So. 666, 76. Oklahoma Nat. Bank v. Chi- 79. Eeeves & Co. v. Block, 31 S. D. cago, E. I. & P. Ey. Co. (Okl.), 60, 139 N. W. 780. 146 Pac. 716; Hale v. St. Louis & S. 80. Use v. Aetna Indemnity Co., 69 F. E. Co., 39 Okl. 192, 134 Pac. 949. Wash. 484, 125 Pac. 780. See also Johnson & Larimer Dry 1174 Statutes of Limitation. mortgage on property situated in the State, executed to secure an indebtedness of the corporation, since, having been out of the State, the debt is not barred.^^ Where defendant, a foreign cor- poration, was licensed to do business in Missouri, and there main- tained an oiSce and agent on whom service of process might be ob- tained at any time, under Mo, Eev. St. 1889, §§ 570, 1007, it was not a nonresident within section 4282, providing for the suspen- sion of limitations as against a debtor who was a resident at the time the action accrued and thereafter departed from the State.*^ § 247b. Return and residence after absence. When the person against whom a cause of action exists is a non- resident of the State of New York when it accrues, but at that time, and for more than six years thereafter, comes into the State on every business day, and remains during business hours, at- tending at his office within the State, where, by the use of reason- able diligence, he could be found, the statute of limitations begins to run in his favor, upon the first day of his coming into the State, after the cause of action accrues, and its running is not thereafter suspended, since he is not continuously absent from the State for a year.^ Under Delaware Eev. Code, p. 889, c. 128, § 14, limita- tions are not set running on a cause of action against a nonresident by his coming into the State, unless such coming was open and notorious, without attempt to prevent the creditor from ascertain- ing his presence, and for such length of time as to enable process to be served on him by the exercise of reasonable diligence.^* Under California Code Civ. Proc, § 351, a person leaving the State after a cause of action accrues against him cannot have reckoned in 81. Hanchett v. Blair, 100 Fed. after absence from the State is not 817, 41 C. C. A. 76 (C. C. A., Nev.). shown to have concealed his return 82. Sidway v. Missouri Land & by the fact that he did not put his Live Stock Co., 187 Mo. 649, 86 S. W. name in the city directory. Campbell 150. V. Post, 20 Misc. Rep. SSS, 4.5 N". Y. 83. Gostello v. Downer, 19 App. Supp. 919. Biv. 434, 46 N. Y. Supp. 713. 84. Morrow v. Turner, 2 Marv. A debtor who returns to New York (Del.) 333, 43 Atl. 166. Disabilities in Peesonal Actions. 1175 his favor tlie time of any secret or fraudulently contrived visit to his former residence; but, where he returns openly, the statute runs against the claim during his stay, although the creditor does not know of his presence before his departure.^^ Under Kansas Code Civ. Proc, § 21 (Gen. St. 1901, § 4449), before a debtor who is absent from the State when a cause of action accrues, and who makes occasional visits to the State during the period of limitation, can set up a bar of the statute, the time of his temporary presence in the State must aggregate the statutory period.^^ Where a debtor had departed from the State, and resided elsewhere and had no place of abode in the State, his temporary return and presence at court did not continue the operation of the Missouri statute of limi- tations." , The word " return," in Utah Eev. St 1898, § 2888, as applied to absent debtors, includes nonresidents as well as citizens of the State who have gone abroad and returned to the State, the words " return to the State " being equivalent to " come into the State."** The removal of a debtor from the State suspends the running of the Kentucky statute of limitations in his favor, and his subsequently coming temporarily into the State does not cause the statute to begin to run again in his favor. *^ § 248. Absconding debtors. In those States where the statute is only saved when the debtor absconds from the State, in order to avail himself of the saving of the statute, it is incumbent upon the plaintiff to show that the de- fendant actually absconded from the State, that is, left is secretly ; 85. Stewart v. Stewart, 152 Cal. tunity to serve summons on him, but 163, 92 Fwa. 87. he is entitled to credit for all the And see McKee v. Dodd, 152 Cal. time spent in the State unless he con- 637, 93 Pac. 854. The rule is the ceals himself. Baxter v. Krause, 79 same under the Texas statute. See Kan. 851, 101 Pac. 467. Gleen v. M'cFaddin (Tex. Civ. App.), 87. State ex rel. Shipman v. Allen, 143 S. W. 234. 133 Mo. App. 98, 111 S. W. 622. 86. Gibson v. Simmons, 77 Kan. 88. Lawson v. Tripp, 34 Utah 28, 461, 94 Pac. 1013. It is not neces- 95 Pac. 530. sary that such visits shall be made 89. Chiles, Bean & Co. v. McClure, so as to give the creditor an oppor- 11 Ky. Law Rep. (abstract) 676. 1176 Statutes of Limitation. and if he left openly tlie statute is not saved, although the debtor does not return to the State again. § 249. Concealment. The concealment of a debtor, which saves the statute in those States where a provision of that kind exists, need not be fraudulent, but a change of residence several times by the debtor, without in- forming his creditor, has been held sufficient.'" § 249a(l). Concealment of person or residence — In general. Conspiracy on the part of city officials to prevent the service of process in an action against the city furnishes no excuse for not commencing the action within the time limited by statute, in the absence of a statute creating it an exception.'^ The Arkansas statute refers to absconding debtors and persons who fraudulently conceal themselves to prevent the commencement of an action against them, and in such case limitations do not begin until the residence of the absconder has been discovered, and the commence- ment of the action for that reason no longer prevented, and they do not apply to a foreign corporation doing' business in the State without designating an agent, where the corporation claims the benefit of section 5057 by paying taxes on lands to which it has color of title.'^ The Alaska statute applies only to a state of facts or a condition wherein the cause of action matures against a person 90. Harper v. Pope, 9 Mo. 403. suspended from the time defAidant 91. Amy v. City of Watertown, 130 escaped from the penitentiary until U. S. 320, 9 Sup. Ct. 537, 33 L. Ed. he was pardoned; he, as an escaped 9'53 ; Spaulding v. City of Watertown, convict, before pardon, having no 130 U. S. 327, 9 Sup. Ct. 539, 3a L. usual iplace of abode at which service Ed. 946. on him could be made under the 92. Rachels v. Stecher Cooperage statute. Reeder v. Cargill, 102 Ark. Works, 95 Ark. 6, 128 S. W. 348, un- 518, 145 S. W. 223. der Kirby's Dig. §§ 5077, 5088, pro- Under Sand. & H. Dig. §§ 4835, viding that limitations do not apply 4846, one who has a riglit of. action to absconding debtors until the cred- for damages, and the person against itor becomes apprised of the residence whom such right exists, are debtor of the absconding debtor, etc. and creditor, and a concealment be- Under section 5088, limitations are fore the cause of action accrues does Disabilities in Peesonal Actions. 1177 whose status is that of a resident of Alaska.^^ In California, living in the State under an assumed name will not prevent one, when sued on a foreign judgment from pleading limitations.' In Illinois, concealment of identity of a party liable is not a ground recognized by the statute of limitations for the postponement of its running.^^ In Iowa, it has been held that the facts that the debtor had changed his residence from Ohio, where the contract relied on was executed, to Iowa, where the action was brought, and lived there under an assumed name, and that the creditor did not know his residence, although he had made diligent inquiry to as- certain it, did not prevent the statute from running.^*" The Kansas statute does not apply to a cause of action arising in another State from which defendant absconded to Kansas, where he made no ef- fort to conceal his whereabouts while within the State.*' In Louisiana, if a debtor abandon his residence to avoid his creditors, prescription does not run in his favor.'^ In Missouri, the ab- not extend the time for suit. Keith V. Hiner, 63 Ark. 244, 38 S. W. 13. 93. Murray v. Farrell, Z Alaska, 360, under Code Alaska, c. 2, § 15, providing that the statutory term of limitation may be extended when the cause of action lies against a person concealed in the district at the time when it accrues. 94. St. Paul Title & Trust Co. v. Stensgaard, 162 Cal. 178, 121 Pac. 731. 95. Proctor t. Wells Bros. Co. of New York, 181 111. App. 4-68, judg. aff'd 262 111. 77, 104 N. E. 186. Mere silence or concealment by defendant without affirmative misrepresentation does not toll the statute of limita- tions. Id. 96. Miller v. Lesser, 71 Iowa, 147, 32 N. W. 2'50, the only exceptions in the Iowa statute being in § 2530, which provides that, in the case of fraud, mistake, or trespass, the statute shall not run until the dis- covery of the same. 97. Myers v. Center, 47 Kan. 324, 27 Pac. 978, under Kan. Civ. Code, § 21, which provides that, when a cause of action accrues against a per- son who has "aibsconded or con- cealed " himself, the period limited for the commencement of the action shall not begin to run while he is so absconded or concealed. See also ■Swickard v. Bailey, 3 Kan. 507. The word " conceal," as used in the statute, applies to acts of a party in Kansas. Frey v. Aultman, Miller & Co., 30 Kan. 181, 2 Pac. 168. A mere nonuser of all corporate powers is not a concealment of the corporation, such as to suspend the running of the statute. City of Ft. Scott v. Schulenberg, 22 Kan. 648. 98. Martin v. Jennings, 10 La. Ann. 553; Blossman v. Mather, 5 La. Ann. 335. 1178 Statutes of Llmitation. ' sconding or concealing must be of such a character as to prevent the commencement of an action, and a judgment debtor who merely concealed his name from an assignee of the judgment, and stated that he did not know where the debtor resided, and offered a nominal sum for the judgment, did not prevent an action on the judgment and was not guilty of absconding or concealing himself, or other improper act, so as to toll the statute.^^ The concealment or absconding which, under the Il^ebraska statute, suspends the operation of the statute, must be such as affects the commencement of judicial proceedings in that State.^ In New York, where the debtor is continually in the State for more than six years after the cause of action accrues, the statute relating to absence from the State has no application, and the statute of limitations will operate, even though he conceals his abode from his creditor, who is thus unable to discover and serve him with process, and even if he changes his name for the purpose of eluding his creditor.^ One who clandestinely leaves a distant State and settles in Oregon, but makes no effort there to conceal his identity or place of resi- dence, is not "concealed" in the State, within the exception of the Oregon statute.^ " Departing without the State " within the meaning of the Virginia statute, relating to limitation of actions, is a removal from the State with the intention of changing one's residence, and the burden of proving such removal is on the plain- tiff.* 99. Davis v. Carp, 258 Mo. 686, § 30. See also Thomas v. Brewer, 55 167 S. W. 1043, under Mo. Eev. St. Iowa, 237, 7 N. W. 571. 1909, § 1905. See also Harman v. 2. Engel v. Fischer, 102 N. Y. 40O, Looker, 73 Mo. 622; Nelson v. Beve- 7 N. E. 300, 55 Am. Rep. 818, rev'g ridge, 21 Mo. 22; Bobb v. Shipley, 1 51 N". Y. Super. C*. (19 Jones & S.) Mo. 229. 71, 15 Abb. N. C. 72, under Code Civ. The statute does not apply to con- Proc. § 401. coalments or improper acts by other 3. Rhoton v. Mendenhall, 17 Or. persons than the debtor. Wells v. 199, 20 Pac. 49, under Hill's Ann. Halpin, 59 Mo. 92. Code, § 16. 1. Talcott V. Bennett, 49 Neb. 569, 4. Brown v. Butler, 87 Va. 621, 68 N. W. 931, under Code Civ. Proc. 13 S. E. 71, under Va. Code, § 3933. Disabilities in Peesonal Actions. 1179 § 249a (2). Ignorance of person entitled to sue. Where suit was brought in Michigan on a bond made in New Jersey, plaintiff's ignorance of the fact that the maker of the bond had removed to Michigan will not arrest the running of limi- tations.^ In ^ew York, the statute of limitations does not run in favor of a nonresident debtor who comes into the State clandes- tinely, and with intent to defraud his creditor, by setting the stat- ute to running, and then departing.^ In Maryland, the presence of the debtor within the State must be such as to enable the credi- tor to avail himself of it. A secret presence, of which the creditor could not take advantage, is not sufficient.^ Proof that plaintiff ■ inquired for defendant, and could not find where he was, so as to sue, prevents the statute of limitations from running, in Missouri.* In Vermont, where a debtor, nonresident when the cause of action accriied, comes to reside in the State, it is not necessary for the creditor to know of his arrival in order for the statute of limita- tions to begin to run.^ In Iowa, the running of the statute of limitations on a claim against a foreign corporation is not de- pendent on plaintiff's knowledge or lack of knowledge of the presence of the general agent in the State.^° As to the effect of ignorance of the person entitled to sue upon the running of the statute of limitations in other jurisdictions, see authorities cited in note below.^^ 5. Home Life Ins. Co. v. Elwell, also Mazozon v. Foot, 1 Aikens (Vt.) Ill Mich. 689, 70 N. W. 334, 3 De- 082, 15 Am. Dec. 679. troit Leg. N. 853. 10. Winney v. Sandwich Mfg. Co., A foreign plaintiff 13 not relieved 86 Iowa 608, 53 N. W. 421, 18 L. E. from the force of the statute of lim- A. 524. itations because he is ignorant that 11. V. 8. — Patterson v. Safe De- defendant has removed to this State. posit & Trust Co. of Baltimore, 148 Dowse V. Gaynor, 155 Mich. 38, 118 Fed. 787, 78 C. C. A. 453 ; Cadmus v. N. W. 615, 15 Detroit Leg! N. 897. Polhamius, Fed. Caa. No. 2,282a. 6. Fowler v. Hunt, 10 Johns. (N". Ala.— Sta,te Bank v. Seawell, 18 Y.) 464. Ala. 616. 7. Hysinger v. Baltzell, 3 Gill & Me. — Crosiby v. Wyatt, 23 Me. (10 J. (Md.) 158. Shep.) 156. 8. Babb v. Shipley, 1 Mo. 229. Tea). — Montgomery v. Brown, 9 9. Davis V. Field, 56 Vt. 426. See Tex. Civ. App. 127, 28 S. W. 834. 1180 Statutes of Limitation. § 249b. Concealment of property involved or liable. Eemoval or concealment of property, to avoid its recovery by an action of replevin, will not postpone the running of the stat- ute of limitations against an action of trover for its conversion.^^ When there is no fraudulent concealment of the fact that a right of action exists, but a concealment merely of the existence of prop- erty from which a judgment might be satisfied, the operation of the statute of limitations is not suspended.^^ Where property has been within the State during the period of limitation, in order to take the case out of the statute there must have been such notoriety to this ownership that the creditor might, with common and ordinary diligence, have secured his debt, or by attachment have given jurisdiction to the court, so that judgment could have been had, and his claim preserved in force. ^* Where a husband, having funds of his wife in his hands, loaned them with other money of his own, taking a mortgage as security, in the absence of evidence to the contrary, it would be presumed that the security was taken by the husband with the consent of the wife; and hence the hus- band was not guilty of conversion of her money, so as to set the statute of limitations running as against her claim for reimburse- ment.^^ The Oklahoma statute of limitations, as to personalty stolen and removed from the jurisdiction, is suspended by § 4502, and begins to run in favor of an innocent purchaser so as bar re- plevin by the true owner from the time the property is returned to the jurisdiction in Oklahoma and held openly for three years.^^ 12. Chapman v. Hudson, 46 Ark. ery of the fraud. Conditt v. Holden, 489. 9S Ark. 618, 123 S. W. 765. One taking up an estray without 13. Humphreys v. Mattoon, 43 advertising it as required by Kirby's Iowa, 556. Dig. c. 149, subd. 2, §§ 7833-7868, but 14. Dow v. Sayward, 12 N". H. 271. converting the animal to his own use, 15. In, re Fraser, 92 N. Y. 239. and claiming in bad faith to own it, 16. Vaught v. Gatlin, 31 Okl. 394, is guilty of fraudulently concealing 120 Pae. 273. See Mansf. Dig. it from the owner, within section §§ 4478, 4502 (Ind. T. Ann. St. 1899, 5088, and limitation did not begin to §§ 2945, 2969). run against the owner until discov- Disabilities in Peesonal Actions. 1181 § 249c. Effect as to parties jointly or severally liable, guarantors, and sureties. The absence of a principal debtor from the State will not sus- pend the statute of limitations in favor of his surety/' nor will the absence from the State of the principal suspend the statute in favor of the sureties on an administrator's bond ; they are severally liable, and are severally entitled to the protection of the statute.-'^ Absence of a mortgagor from the state will not prevent limitations running in favor of his grantee, who is not obligated to pay the debt;-^' and the absence of the mortgagee from the State, after he has parted with the title, does not prevent the running of limita- tions in favor of his grantee.^" The right to subject land to the payment of the purchase money depending upon the enforcement •of a judgment against the purchaser, the absence of a grantee of such purchaser from the State does not operate to suspend the statute of limitations, and this though the grantee assumed pay- ment, such assumption not having been accepted.^^ The absence of a mortgagor from the State does not suspend the statute of limi- tations against a resident who assumed payment of the mortgage. ^^ 17. Mozingo v. Ross, 150 Ind. 688, an action to foreclose was barred as 50 N. E. 867, 41 L. R. A. 612, 65 to one-fourth of the land, but was Am. St. Rep. 387. The statute of lim- not barred aa to the remaining itations does not run against a surety three-fourths. Colonial & United on a sealed note, who pays it, dur- States Mortg. Co. v. Flemington, 14 ing the aibsence of the principal from N. D. 181, 103 N. W. 929, 116 Am. St. the State. Smith v. Swain, 7 Rich. Rep. 670. Eq. (S. C.) 112. 20 Colonial & United States Mort- 18. Davis V. Clark, 58 Kan. 454, 49 gage Co. v. Northwest Thresher Co., Pae. 665. 14 N. D. 147, 103 N. W. 915, 116 Am. 19. George v. Butler, 26 Wash. 456, St. Rep. 642. 67 Pac. 263, 57 L. R. A. 396, 90 Am. 21. Miller v. Anders, 21 Tex. Civ. St. Rep. 756. App. 72, 51 S. W. 897. Where a mortgagor died intestate 22. Robertson v. Stuhlmiller, 93 before the mortgage debt was due, Iowa, 326, 61 N. W. 986. and left four heirs, only one of whom Where a mortgage is given as col- was resident, no administrator was lateral security for the bond of a ever appointed, and nearly fourteen third person, and obligor in the bond years after the debt was due, the joins in the mortgage, though he has heirs conveyed the land to defendant, no interest in the mortgaged land, 1182i Statutes op Limitation. The absence from the State of one of several joint debtors sus- pends the statute of limitations as to all.^^ Where one of two joint debtors absents himself from the State, the statute is sus- pended as to him, but runs as to the other.^* A debt may be barred by the statute of limitations as to a partner residing in the State, notwithstanding it continues in force against his absent copart- ners.^^ When a cause of action against the agent of an undis- closed principal is barred by the statute of limitations, no action can be brought against the principal when discovered.^^ § 250. Foreign corporations. Foreign corporations, although having general agents and trans- acting business in a State, come within the provisions of those statutes which make a saving as to absent debtors f^ for although by comity, they may transact business in another State, yet they are " citizens," so to speak, of the State under the laws of which they are created, and, except by comity, have no legal existence else- where, and consequently are " absent," within the meaning of the term as used in these statutes, from every State excej)t the one in the absence of the mortgagor from the State, did not set the statute run- ^he State does not stop the running ning as to the others. Davis v. Kin- of the statute of limitations against ney, 1 Abb. Prac. (N. Y.) 440. the mortgage. Fowler v. Wood, 78 26. Ware v. Galveston City Co., Hun 304, as N. Y. Supp. 976. Ill U. S. 170, 4 Sup. Ct. 337, 38 L. 23. Reyhold v. Parker, 7 Houst. Ed. 393. (Del.) 526, 33 Atl. 981; Casey v. 27. Robinson v. Imperial, etc., Min- Kimball, 7 Ohio Dec. 584, 4 Wkly. ing Co., 5 Nev. 44; Rathbun v. IJorth- Law Bui. 78. ern Central R. Co., 50 N. Y. 656; 01- 24. Brewster v. Bates, 81 Hun, 294, cott v. Tioga R. Co., 20 N. Y. 210; 30 N. Y. Supp. 780; Caswell v. Engel- Thompson v. Tioga R. Co., 36 Barb, mann, 31 Wis. 93. And see § 246, (N. Y.) 79; Mallory v. Tioga R. R. supra. Co., 3 Keyes (iN. Y.) 354. In New 25. Spaulding v. Ludlow Woolen York, in Faulkner v. Delaware, etc., Mill, 86 Vt. 150; Town v. Washburn, Canal Co., 1 Den. (N. Y.) 441, a cou- 14 Minn. 368, 100 Am. Dec. 219. trary doctrine was held, but' was The return of one of several part- overruled. Olcott v. Tioga R. Co., ners, who, while out of the State, supra. And the doctrine of the latter contracted a debt to creditors within case now prevails in that State. DiSABiMTiEs IN Peesoital Actions. 1183 whicli they have their situs.^^ The rule above stated, hov^ever, would have no application in Vermont, when the corporation had attachable property in the State; because the statute of that State does not save a debt from the operation of the statute where the debtor has known property in the State, which, by the ordinary process of law, might be attached.^ Defendant foreign corporation, having no other representatives in Maryland, than mere selling agents, was not subject to service of process as affecting limitations under a Maryland statute, which provides that, if any person liable to suit shall be absent from the State when the cause of action accrues against him, he shall have no benefit of the statute of limitations.^" A foreign corporation suing a Kansas shipper to recover for an alleged balance due ac- cording to the legal rates, cannot, to a counterclaim for damages to the property transported, plead the statute of limitations.^^ § 251. Cumulative disabilities. Except where the statute otherwise so provides, one disability cannot be tacked to another, nor the disabilities of an ancestor to those of the heir, to protect a party from the operation of the statute ;^^ nor can a party avail himself of several disabilities, un- 28. See Turcot* v. Railroad, 101 31. Oregon E. & Nav. Co. v. This- Tenn. 103, 45 S. W. 1067, 40 L. R. A. ler, 90 Kan. 5, 133 Pac. 539. 768, 70 Am. St. Kep. 661, and n. As 32. Clark v. Jones, 55 Ky. (16 B. to the right of a foreign corporation Mon.) 121; Parsons v. McCracken, 9 to plead the statute of limitations, Leigh (Va.) 495; Martin v. Letty, see Winney v. Sandwich Mfg. Ckj., 86 57 Ky. (18 B. Mon.) 573; Boyce v. Iowa 608,. 53 N. W. 421, 18 L. R. A. Dudley, 47 Ky. (8 B. Mon.) 511; 524, and n., 38 Cent. L. J. 275. See Jackson v. Wheat, 18 Johns. (N. Y.) also as to foreign corporations, Lar- 40; McDonald v. Johns, 12 Tenn. (4 son V. Aultman & Taylor Co., 86 Wis. Yerg.) 258. Cumulative disabilities 281, 56 N. W. 915, 39 Am. St. Rep. are of no avail against the statute 893; Clarke v. Bank of Mississipipi, of limitations. Fritz v. Joiner, 54 111. 10 Ark. 516, 52 Am. Dec. 248, and n. 101; Mercer v. Selden, 42 U. S. (1 29. Hull Y. Vermont, etc., R. R. How.) 37; 11 L. Ed. 38; Thorp v. Co., 28 Vt. 401. Raymond, 57 U. S. (16 How.) 247, 30. Duryee v. Sunlight Gas Mach. 14 L. Ed. 923; Ashbrook v. Quarles, Co., 132 N. Y. Supp. 407, 74 Misc. 54 Ky. (15 B. Mon.) 20; White Rep. 440. T. Latimer, 12 Tex. 61; Currier v. 1184; Statutes of Limitation. less they all existed at the time when the right of action accrued.'^ Thus, if a right of action accrues to a female infant, and she after- wards marries, the coverture does not create an additional dis- ability; but, notwithstanding the coverture, an action must be brought within the specified period after she becomes of age, or the claim will be barred,^* as no supervenient disability can have the Gale, 85 Mass. (3 Allen) 328; Des- saunier t. Murphy, 33 Mo. 184, where, at the time the right of action accrued, the plaintiff was insane, but subsequently recovered; and before the statute had run upon the claim he again became insane, it was sought to avoid the. effect of the statute un- der this second disability; but the court held that, as the statute began to run from he time of his recovery from his lunacy, it was not arrested by a return of the disability. Clark V. Trail, 58 Ky. (1 Mete.) 35. The disability of minor children cannot be added to the disability of the mother, under whom they claim. Mitchell V. Berry, 58 Ky. (1 Mete.) 602; Mercer v. Selden, 42 U. S. (1 How.) 37; Starke v. Starke, 3 Rich. (S. C.) 438; Thorp v. Raymond, 57 U. S. (16 How.) 247; Dease v. Jones, 23 Miss. 133; Caldwell v. Thorp, 8 Ala. 25; Tyson v. Britton, 6 Tex. 222; Stevens v. Bomar, 28 Tenn. (9 Humph.) 546. 33. Bunce v. Wolcott, 2 Conn. 27. In Bradstreet v. Clarke, 12 Wend. (X. Y.) 602, it is held that cumula- tive disabilities cannot be allowed either in real or personal actions. Rankin v. Tenbrook, 6 Watts (Pa.) 388; Kendal v. Slaughter, 1 A. K. Mar. (Ky.) 375. A few cases have here applied this rule in personal ac- tions, Butler V. Howe, 13 Me. 397; and there can be no question but that in this country this rule is applicable in either real or personal actions. In England there is no actual decision upon this question; but in Borrows V. Ellison, L. R. 6 Exch. 128, there are dicta which intimate a contrary rule from that held in this country; but such a, doctrine hardly seems warranted by a fair construction of the English statutes, and it is ex- tremely doubtful whether, if a case involving the question should arise, it would be applied. In Bunce v. Wolcott, 2 Conn. 32, where an appli- cation was made to redeem a mort- gage by the heirs of a mortgagor, more than fifty years after his death, because of certain irregularities, and it was sought to avoid the efTect of the statute of limitations as to the heirs by tacking the disability of in- fancy and coverture together. But the court held that this could not be done, although it was permitted in an early case in that State. Eaton V. Sanford, 2 Day (Conn.) 523. 34. Clark v. Jones, supra; Fewell V. Collins, Const. Rep. (S. C.) 202; Wellborn v. Weaver, 17 Ga. 267; Mitchell V. Berry, 58 Ky. (1 Mete.) 602. The disability of coverture can- not be united with that of infancy to avoid the effect of the statute. Parsons v. McCracken, 9 Leigh (Va.) 495; Martin v. Letty, 57 Ky. (18 B. Mon.) 573; Manion v. Titsworth, id. 582; Billon v. Larimore, 37 Mo. 375; Disabilities in Peesonal Actions. 1185 effect to suspend the operation of the statute.^^ It will be observed Carlisle v. Stitler, 1 Pa. 6; Dugan V. Gittings, 3 Gill (Md.) 13S, 43 Am. Dee. 306. In Findley v. Pat- terson, 41 Ky. (3 B. Mon.) 76, it ■was held that an action for slaves held adversely to the wife on her marriage in infancy, must be brought within the statutory period after she became of age, and that the fact that the wife died before that time did not change the rule, and that the dis- ability of infancy could not be lapped on to that of coverture so as to pro- long the statutory saving against the legal effect of the lapse of time. Eiggs V. Dooley, 46 Ky. (7 B. Mon.) 236. In Texas, a female infant upon her marriage immediately becomes of age, and the statute then begins to run against a, previously existing claim. Thompson v. Cragg, 24 Tex. 582; White V. Latimer, 12 Tex. 61. But the rule is generally otherwis'e, and the statute does not begin to run until she becomes of age. Wilson v. Kileannon, 7 Tenn. (4 Hayw.) 182. But in North Carolina it is Ireld oth- erwis'e. Davis V. Coolie, 10 N. C. (3 Hawks) 608. But see Duckett v. Cri- der, 50 Ky. (11 B. Mon.) 188, where it was held that a woman under age was entitled to her action to recover possession of a slave. She married before she came of age, and it was held that the two disabilities of non- age and coverture could be joined for the purposes of deferring the bar of the statute of limitations. See Boyce V. Dudley, 47 Ky (8 B. Mon.) 511, where a contrary rule was adopted; and Martin v. Letty, 57 Ky. (18 B. Mon.) 573; Clark v. Jones, 55 Ky. (16 B. Mon.) 121; and see Wellborn V. Finley, 52 N. C. (7 Jones L.) 2.28, 75 where it was held that the disability of nonage and coverture could not be joined to prevent the operation of the statute. In Keil v. Healey, 84 111. 104, it was held that the statute is not arrested by cumulative disabili- ties, as where a female is not mar- ried until fiv« months after age, her coverture does not create a, disability as to matters accruing before cover- ture; and the same doctrine was adopted in Cozzens v. Parnan, 30 Ohio St. 491, adopting the invariable rule that the disability which arrests the running of the statute must exist at the time when the right of action accrued. Hinde v. Whitney, 31 Ohio St. 53; Hogau v. Kurtz, 94 U. S. 773, 24 L. Ed. 317; Bozeman v. Browning, 31 Ark. 364; Eoberts v. Moore, 3 Wall. Jr. (U. S. C. C.) 293; Hull v. Deatly, 70 Ky. (7 Bush) 687; Fritz V. Joiner, 54 111. 101; Harris v. Mc- Govern, 2 Sawyer (U. S.) 515; Rog- ers v. Brown, 61 Mo. 187; Swearing- en v. Robertson, 39 Wis. 462. 35. Bunce v. Wolcott, 3 Conn. 32. A party cannot avail himself of any disability to bring himself within the saving of the statute, except such as existed at the time when the cause of action accrued. McCoy v. Nichols, 5 Miss. 31. And no after accruing disability can stop the statute after it has once commenced to run. Par- sons v. McCracken, 9 Leigh (Va.) 495; Fitzhugh v. Anderson, 2 H. & M'. (Va.) 289; Hudson v. Hudson, 6 Munf. (Va.) 352; McDonald v. Johns., 13 Tenn. (4 Yerg.) 358. In Demarest v. Wynkoop, 3 Johns. (N. Y.) Ch. 129, the court held that a disability to relieve a party from the operation of the statute limiting real 1186 Statutes of Lxmitation. tliat the saving clause in the statute of James, as well in all our statutes, is limited expressly to such disabilities as existed at tho time the right of action accrued ; consequently, if, at the time when a right of action accrues, a man is of full age, the fact that he shortly afterwards became insane will not save his claim from the operation of the statute. ^^ ISTor if a right of action accrues in actions must exist when the right first accrues, and that although be- fore the termination of the first disability another commences, the statute begins to run from the termination of the first. In Lewis v. Marshall, 30 U. S. (5 Pet.) 459, 8 L. Ed. 195, it was held, under a form- er statute of limitations of Kentucky limiting the right of action against one in the adverse possession of land to twenty years, provided that per- sons under disability may, although said twenty years are expired, main- tain his action, or make his entry, within ten years next after such dis- abilities removed, or the death of the person so disabled, that if an ad- verse .possession of land commenced during the disability of a, claimant, who died during such disability, the ten years began to run against his heirs from the time of his death; but if the right of such claimant de- scended to his heirs before the com- mencement of the adverse possession, the statute did not operate against them until their disability was re- moved. In Texas, by statute, a, female infant, upon her marriage, becomes of full age although in fact a minor; and this is held to deprive her of both the disabilities of infancy and coverture as to all rights of ac- tion which accrued before her mar- riage. Thompson v. Cragg, 24 Tex. 583. The provisions in the statute exempting certain persons subject to specified disabilities until ten years after their removal, only applies where some one of such disabilities exists in the person entitled to the estate at the commencement of the adverse possession; and if there be a succession of such disabilities, whether in the person then entitled, or in him or those who succeed to his title, such person or persons are protected by the proviso only for ten years after the removal of the first disability. Clarke v. Cross, 3 R. I. 440. Disabilities which may bring a person within the exceptions can- not be piled one upon another, but only the disability in existence at the time the cause of action accrued applies. When there are two or more coexisting disabilities in the same person at the time the cause of ac- tion accrues, as, for instance, infancy and coverture, the statute does not run till both or all are removed. ' But if at the time the cause of action ac- crues only one disability exists, others which arise afterwards cannot be tacked to the first disability so as to prevent the operation of the statute. Scott v. Haddock, 11 Ga. 258 ; Young V. Mackall, 4 Md. 363. 3G. In Adamson v. Smith, 2 Mill. Const. (S. C.) 269, 12 Am. Dec. 665, where a person who was under no disability at the time when u. note- given to him became due shortly Disabilities in PEnsoifAi- Actions. 1187 favor of a female of full age, and she soon afterwards marries, will the disability of coverture save her rights from being barred by the lapse of the statutory period.^''. This is in obedience to the universal rule, before stated, that when the statute once begins to run no subsequent disability can stop its operation,^* unless specially so provided in the statute. It may be stated as a general rule, to which there are no exceptions, that, except when the statute otherwise provides, disabilities which bring a person within the exceptions of the statute cannot be tacked one upon another, and that a party can only avail himself of such disability or disabilities as existed when the right of action ac- crued.^^ If a right of action accrues to a married woman during afterwards became non compos men- tis, the court held that this super- venient disability did not check the operation of the statute. 37. Carlisle v. Stitler, 1 Penn. 6. 38. Crozier v. Gano, 1 Bibb (Ky.) 357; Faysoux v. Prather, 1 Nott & Mc (S. C.) 296; Rogers v. Hillhouse, 3 Conn. 398; Peck v. Randall, 1 Johns. (N. Y.) 165; Ruff v. Bull, 7 Har. & J. (Md.) 14, 16 Am. Dec. 290. Dillard v. Philson, 5 Strobh. (S. C.) 213; Sevenson v. McReary, 20 Miss. 9 Byrd v. Byrd, 28 id. 144 ; Pendergrast V. Foley, 8 Ga. 1; Smith v. Newby, 13 JIo. 159; Parsons v. M'Cracken, 9 Leigh (Va.) 495; Hudson v. Hud- son, 6 Munf. (Va.) 352. 39. McFarland v. Stone, 17 Vt. 165; Mercer v. Selden, 42 U. S. (1 How.) 37; White v. Latimer, 12 Tex. 61; South v. Thomas, 23 Ky. (7 T. B. Mon.) 59; M'Donald v. Johns. 12 Tenn. (4 Yerg.) 258; Thorp v. Raymond, 16 How. (U. S.) 247; Starke v. Starke, 3 Rich. (S. C.) 438; Rankin v. Tenbrook, 6 Watts (Pa.) 388; Doe v. Barksdale, 2 Brock. (U. S. C. C.) 436; Scott T. Haddock, 11 Ga. 258; Demarest r. Wynkoop, 3 Johns. (N. Y.) 129; Dease v. Jones, 23 Miss. 133; Den v. Richards, 15 N. J. L. 347; Bradstreet V. Clarke, 12 Wend. (N. Y.) 602; Jackson v. Wheat, 18 Johns. (N. Y.) 40. This rule, says Hosmer, J., in Bunce v. Wolcott, 2 COnn. 34, " avoids the inconvenience of accumu- lated successive disabilities, which, for an interminable period, might subvert titles apparently well estab- lished, and produce the most ruinous instability." 3 Bae. Abr. 206; Stowel V. Zouch, Plowd. 356; Duroure v. Jones, 4 T. R. 300; George v. Jesson, 6 East 80; Eager v. Commonwealth, 4 Mass. 182. In Minnesota, Oregon, New York, and California, it is spe- cially provided that no person shall avail himself of a disability unless it existed when the action accrued, and that if two or more disabilities existed when the cause of action arose, the statute shall not begin to run until all are removed. In all thty States except Texas, Mississippi, and Indiana, the disability is expressly restricted to the time when the cause 1188 STATUTEg OF Limitation. coverture, and she becomes discovert, and before the statute has run upon her claim marries again, her second marriage does not prevent the statute from running upon the claim, because the statute, having once attached to the claim, overrides all after- accruing disabilities.^" Wh6n several disabilities exist at the time when a right of action accrues, as, if a woman should be both an infant and a feme covert, or a feme covert and insane, she may elect to avail herself of either of the disabilities, and, if no elec- tion is made, the court would give her the advantage of the one most available to defeat the statute; and in the language of Edmund, J.,^ " It will always be a sufficient answer to an objector to such an election to say, ' the disability on which I rely is pointed out by the proviso. It existed at the time my right or title accrued. I have prosecuted my claim within the tima allowed after its discontinuance, and come within both the letter and spirit of the law.' " *^ The disabilities are not merged, but each remains distinctly until it is extinguished by lapse of time f^ and, as we have already stated, either may be set up to defeat the statute as the party may elect. § 251a. Coexisting disabilities. When there are two or more coexisting disabilities in the same of action accrues; but in those States 138, 43 Am. Dec. 306, the same doc- the words " when the right of action trine was held. In Allis v. Moore, accrues," or "when the cause of ac- 84 Mass. (2 Allen) 306, it was held tion arises,'' are not used in the stat- that, where an owner of land- has ute, and in those States cumulative been disseised, his subsequent insan- disabilities may doubtless be tacljed. ity will not prevent the disseisor's In Texas it is held that the statute title from maturing by twenty years' relates to such disabilities only as adverse possession, existed when the riglit of action 42. Butler v. Howe, 13 Me. 397; arose. White v. Latimer, 12 Tex. 61. Keeton's Heirs v. Keeton's Adm'r, 20 40. Downing v. Ford, 39 Ky. (9 Mo. 530; Sturt v. Mellish, 2 Atlc Dana) 391; McDonald v. McGuire, 8 616; Jordan v. Thornton, 7 Ga. 517. Tex. 361; Den v. Moore, 3 Wall. Jr. 43. Martin v. Letty, supra; Rob- (U. S.) 292; Mitchell v. Berry, 58 ertson v. Wurdeman, 2 Hill (S. C.) Ky. (1 Met.) 602. 324; Layton v. State, 4 Harr. (Del.) 41. Bunce v. Wolcott, 3 Conn. 34. 8; Carter v. Cantrell, 16 Ark. 154. In Dugan v. Gittings, 3 Gill (Md..) Disabilities in Personal Actions. 1189 person, when his right of action accrues, he is not obliged to act un- til the last is removed.** When the disabilities of infancy and coverture exist at the execution of a deed, the right to disaffirm continues until both disabilities are removed, and through the ordinary limitations thereafter, whatever time elapses between the date of the deed and its disaffirmance.*^ When there are two or more coexisting disabilities in the same person, at the time the cause of action accrues, — as, for instance, infancy and coverture, — the statute of limitations does not run imtil both or all are re- moved.*^ § 251b. Tacking successive disabilities. As has been stated in a preceding section,*'' tacking or cumulat- ing disabilities under the statutes of limitations, as a general rule, is not allowable.*^ One disability cannot be tacked onto another to 44. Wilson v. Branch, 77 Va. -65, 7 Va. Law J. 161, 46 Am. Eep. 709. The omission of a married woman to exercise her right to sue alone can- not operate to her prejudice, so as to allow the statute of limitations to bar her action. Under Battle's Ee- visal, c. 17, § 28, the statute "shall not begin to run until the termina- tion of the latest disability," in case minority and coverture coexist. Lip- pard V. Troutman, 72 N. C. 551. Under the Michigan Married Wo- men's Act of 1855, a married woman is relieved from all disability to sue, and the statute of limitations will run against her, though she was married while an infant, and had re- mained married up to the time of the action. Douglass v. Douglass, 72 Mich. 86, 40 N. W. 177. 45. Blake v. HoUandsworth, 71 W. Va. 387, 76 S. E. 814. Limitations do not run against the right of an infant feme covert to dis- afiSrm a conveyance during marriage. Fox V. Drewry, 62 Ark. 316, 35 S. W. 533. 4G. (?o.— Scott V. Haddock, 11 Ga. 258. Me. — Butler v. Howe, 13 Me. (1 Shep.) 397. Md. — Dugan v. Gittings, 3 Gill 138, 43 Am. Dec. 306. Miss. — ^North v. James, 61 Miss. 761. See Watts, v. Gunn, 53 Miss. 502. Mo. — Keeton's Heirs v. Keeton's Adm'r, 20 Mo. 530. N. T. — Jackson v. Jackson, 5 Cow. 74, 15 Am. Dec. 433. 47. See § 251, supra. 48. Rutter v. Carothers, 223 Mo. 631, 122 S. W. 1056. Mo. Eev. St. 1899, § 4265, provides that, if any person entitled to com- mence an action for the recovery of real estate be under disability when the cause of action accrues, the time during which such disability shall continue shall not be deemed a por- tion of the time limited for the com- 1190 Statutes of Limitation. avoid the operation of the statute.*' The disability of coverture cannot be added to that of infancy to prevent the running of the statute.^" The disability of minority cannot be tacked onto the disability of coverture of the ancestor of the minors. ^^ Where one who was an infant when his cause of action accrued afterwards mencement of the action, but that such person may bring the action after the time so limited and within three years after removal of disabil- ity, provided that no such action shall be commenced by any person un- der disability after 24 years after the Jieerual of the cause of action. Sec- tion 4367 provides that, if any per- son entitled to commence any action die during the continuance of any disability specified in section 4265, and no determination or judgment be had of the title or right of action to him accrued, his heirs may com- mence such action after the time limited and within three years after his death, but not after that period. It was held that disabilities cannot be cumulated, and where an infant, having a cause of action, died before his majority, his heir could not com- m,ence an action after three years from the death, though the heir was under disability at the time of the death; the heir not being entitled to the provisions of section 4265. Rob- inson T. Allison, 192 Mo. 366, 91 S. W. 115. So, where a person entitled to commence an action was insane at the time of her death, the disability of a devisee who was under cover- ture at the time the descent was cast on her could not be tacked to that of the ancestor, in order to avoid limi- tations. De Hatre v. Edmunds, 200 Mo. 246, 98 S. W. 744. The marriage of a woman after reaching her majority does not inter- rupt the running of the statute of limitations against her right to dis- affirm a deed made during her min- ority. Priddy v. Boice, 201 Mo. 309, 99 S. W. 1055. 49. Knippenberg v. Morris, 80 Ind. 540; Williams v. Dongan, 20 Mo. 186; Hancock V. Hutcherson, 76 Va. 609. 50. Knippenberg v. Morris, supra; Eager v. Commonwealth, 4 Mass. 183; Quick V. Eufe, 164 Mo. 408, 64 S. W. 102; Franklin v. Cunningham, 187 Mo. 184, 86 S. W. 79 ; Buttery v. Brown (Tenn. Oh. App.), 52 S. W. 713; Hale v. Ellison (Tenn.), 59 S. 673; Louisiania & T. Lumber Co. v. Lovell (Tex. Civ. App.), 147 S. W. 366; York v. Hutcheson, 37 Tex. Civ. App. 367, 83 S. W. 895; Reed v. Money (Ark.), 170 S. W. 478. 51. Elcan v. Childress, 40 Tex. Civ. App. 193, 89 S. W. 84; Laird v. Mur- ray (Tex. Civ. App.), Ill S. W. WO, under the express provisions of Rev. St. 1895, art. 3376. Where a right of action to recover certain real estate accrued to a mar- ried woman during coverture, and she died while the right of action ex- isted, leaving minor heirs, such heirs could not set up their disability of infancy as an excuse for not having brought their action within the time limited by the statute. Lamberida V. Barnum (Tex. Civ. App.), 90 S. W. 69«. Disabilities in Peesonal Actions. 1191 became of imsound mind, this disability cannot be added to that of infancy, to extend the time for bringing suit.^^ Under St. 21 James I, c. 16, in force in Maryland, providing that no person shall make entry into lands but within twenty years next after his right or title shall accrue, and in default thereof such persons not en- tering and their heirs shall be utterly excluded and disabled from any entry thereafter, provided that if, at the time the right or title first descended, the person having the same shall be within the age of twenty-one years, such person may make entry within ten years after his full age, the persons protected in the proviso cannot avail themselves of successive or cumulative disabilities, so that, where a disability ceases while the period of twenty-year limitations in run- ning, the ten years given to the person subject to the disability will run concurrently with the twenty years, and not successively to it.^ Though the owner of land was an infant just born when adverse possession of it began, and died before his right of ac- tion to recover was barred, leaving infant heirs, their right of ac- tion, as his would have been, is barred, if there was no other dis- ability than infancy, when the possession has continued thirty-one years; ]^. Y. Code Civ. Proc, § 375, providing that if a person, who might maintain an action to recover real estate, is, when his 52. Sharp v. Stephens' Committee, appeared that plaintiff's father sold 21 Ky. Law Eep. 687, 53 S. W. 977. it when she was an infant, and that, Ky. St. 1903, § 3506, provides that though the purchaser went into pos- if, at the time the right of any per- session, plaintiff was a married wo- son to bring an action to recover real man when she reached her majority, property first accrued, such person and was still under the disability of was an infant or married woman, coverture, and that 30 years had not such person may, though 15 years elapsed. Smith v. Cornett, 30 Ky. have expired, bring the action within Law Rep. 303, 98 S. W. 297. three years after removal of disabil- 53. Wiekes v. Wickes, 98 Md. 307, ity. Section 3508 provides that the 56 Atl. 1017; Stevens v. Wickes, Id. period within which an action for the Limitations give the heir of a pcr- reoovery of real estate may be son under disability only 10 years brought shall not in any case be ex- from the death of the ancestor to sue tended beyond 30 years by the exis- for land of which the ancestor was tence or continuance of any disabil- out of possession. Baumeister v. ity. It was held that an action to Silver, 98 Md. 418, 56 Atl. 835. recover land was not barred, where it 1193 Statutes op Limitation. cause of accion first accrues, either Tinder the age of twenty-one years, or insane, or imprisoned, the time of such disability is not a part of the time limited for commencing the action, except that the time so limited cannot be extended more than ten years after the disability ceases, or after the death of the person so disabled.^* § 252. Disability must be one provided for by statute. The statute of limitations begins to run against a party immedi- ately upon the accrual of a right of action, unless at that time he was under some of the disabilities named in the statute; and a saving or exception not found in the statute will not be implied, however much it ^ay be within the reason of other exceptions.^ 54. Messinger v. Foster, 101 N. Y. Supp. 387, 115 App. Div. 689. 55. Warfield v. Fox, 53 Pa. 382; Howell V. Hair, 15 Ala. 194; Favor- ite T. Booher, 17 Ohio St. 548 ; Pryor V. Eyburn, 16 Ark. 671; Bucklin v. Ford, 5 Barb. (N. Y.) 393; Wells V. Child, 94 Mass. (13 Allen) 333; The Sam Slick, 3 Curt. (U. S.) 480; Gaines v. Williams, 25 N. C. (3 Ired. L.) 481; Dozier v. Ellis, 28 Miss. 730; Sacia v. De Graaf, 1 Cow. (N. Y.) 356; Harrison v. Harrison, 39 Ala. 489. In Carrier v. Chicago, etc., R. Co., 79 Iowa 80, there is a dictum to the effect that the specification by the legislature of exceptions to the statute of limitations will not pre- clude the court from applying excep- tions to such statute which are recog- nized by the common law, other than those prescribed by the legislature. While this dictum and this doctrine were wholly unnecessary to the deci- sion, there was a class of cases in which it was held, although the stat- ute made no exception upon that ground, that where a cause of action had been fraudulently concealed from the person in whose favor the right of action existed, the statute did not begin to run until the fraud was dis- covered, although this doctrine never found much support in the courts of this country or of England. Indeed, independent of the statute making them, no exceptions to the operation of the statute existed, except in equity, nor even in that court where the statute was in express terms made applicable to courts of equity, as well as to courts of law. The court, upholding Boomer Dist. Twp. V. French, 40 Iowa 601, and later cases, said : " These cases measured by the statute alone, are clearly barred; but in that case this court held the rule to be that ' where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment pre- vented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the means of diligence, have been discovered.' " It was said in Heiserman v. Burlington, C. K. & Disabilities in Peesonal Actions. 119: Thus, the circumstance that the debtor is insolvent, and that a suit against him would be fruitless, or that the plaintiff had not the means to bring an action, does not create a bar to the legal remedy of the creditor.^" ITor wiU the bankruptcy of a creditor excuse delay in bringing an action beyond the statutory period." In Louisiana, however, when an insolvent has surrendered his N. R. Co., 63 Iowa 736, that 'rail- road companies are public carriers, and those who employ them are in their power, and must bow to the rod of authority which they hold over consignors and consignees of property transported by them. The reason for the rule requiring disclosures and fair dealing applies to this defendant with the same force that it did to French. The appellant contends that when exceptions are provided to a general statute it excludes all others than those expressed, and that courts are not at liberty to ingraft other exceptions than those expressed upon such a, statute. This claim finds strong support in the following cases cited by counsel: Chemical Nat. Bank v. Kissanne, 32 Fed. 429 ; Engel V. Fischer, 102 N. Y. 400, 3 Gent. Eep. 303; Fee v. Fee, 10 Ohio 470; Amy v. Watertown, 130 U. S. 320, 9 Sup. Ct. 537, 32 L. Ed. 953, 22 Fed. 418; Bank of Alabama v. Dalton, 50 U. S. (9 How.) 526, 13 L. Ed. 242; Kendall v. United States, 107 U. S. 123, 2 Sup. Ct. 277, 27 L. Ed. 437, 19 Ot. CI. 758; Favorite v. Booher, 17 Ohio St. 548 ; Woodbury v. Shack- leford, 19 Wis. 55; Somerset Co. v. Veghte, 44 N. J. L. 509; Demarest V. Wynkoop, 3 Johns. Ch. 129; Miles V. Berry, 1 Hill L. 296; Troup v. Smith, 20 Johns. 33. These questions were presented and passed upon in a number of those cases, holding that the general statute excludes all oth- ers, and that when the legislature has made exceptions the courts can make none, Campbell v. Long, 20 Iowa 382; Shorick v. Bruce, 21 Iowa 307; Eelf v. Eberly, 23 Iowa 469; Gebhard v. Sattler, 40 Iowa 152; Miller v. Lesser, 71 Iowa 147. Boom- er Dist. Twp. V. French finds strong support in the authorities cited in the opinion. Sherwood v. Sutton, 5 Mason 143, wherein Judge Story re- views many cases, shows a diversity of rulings on this question by the courts of different States. Boomer Dist. Twp. V. French was approved. Humphreys v. Mattoon, 43 Iowa 556 ; Findley v. Stewart, 46 Iowa 655; Brunson v. Ballou, 70 Iowa 34; Brad- ford V. McCormick, 71 Iowa 129; Wilder v. Secor, 72 Iowa 161; Shreves v. Leonard, 56 Iowa 74. We think there is no sufficient reason for now reversing the conclusion there announced. 56. Mason v. Crosby, Davies (U. S.) 303. But in this case the pecu- niary embarrassments of the plaintiff were held sufficient in equity to ex- cuse delay not beyond the period of legal limitation in bringing his bill, to relieve his claim from the imputa- tion of staleness, and especially where his embarrassments were occa- sioned by the defendant. 57. Harwell v. Steel, 17 Ala. 372. 1194 Statutes of Limitation. property, prescription is. suspended as to his creditors ; but this is held not to apply to successions, whether solvent or insolvent.^ So, too, in that State it is held that the prescription of a judgment interrupts prescription against the hypothecary action on the judgment.^' In North Carolina, it has been held that, where a note is deposited in the hands of a master by order of a court of equity, the acts of limitation are thereby suspended.^'* It may be safely said that the courts have no authority to make any excep- tions in favor of the party, to protect him from the consequences of the statute, unless they come clearly within the letter of the saving clauses therein contained, and that the exercise of any such authority by the courts is a usurpation of legislative powers by it which is wholly unwarranted, and which courts should never resort to. By making the exceptions which exist in the statute the legislature has exercised its prerogative power, and the fact that no others were made clearly indicates that it intended that no others should exist, and the courts have no power to add any, however much the ends of justice in a particular case may demand it.^ 58. Succession of Flower, 12 La. Eagan, 2 Wheat. (U. S.) 25; Hall v. Ann. 216; West v. Creditors, 1 id. Weyborn, 8 Salk. 420; Beekford v. 365. Wade, 17 Ves. 87, and the rule is the 59. Van Wickle v. Garrett, 14 La. same although it is claimed that the Ann. 106. party setting up the statute has been 60. Kendal v. United States, 107 guilty of fraud. Bucklin v. Ford, 5 U. S. 123, supra; The Sam Slick, 2 Barb. (N. Y.) 393; Humbert v. Trin- Curt. (U. S.) 480; Lefflng^vell v. ity Church, 24 Wend. (N. Y.) 587; Warren, 2 Black (XJ. S.) 599; United Leonard v. Pitney, 5 Wend. (N. Y.) States V. Muhlenbrink, 1 Woods (U. 30; Conner t. Goodman, 104 111. 365; S.) 569; Fisher v. Harnden, 1 Paine United States v. Maillard, 4 Ben. (U. (U. S.) 55; Amy v. Watertown, 130 S.) 459; Gaines v. Miller, 111 U. S. U. S. 320, supra. There can be no 395, 4 Sup. Ct. 426, 28 L. Ed. 466; exception unless expressly named in Wood v. Carpenter, 101 U. S. 135, 25 the statute, Bank of Alabama v. Dal- L. Ed. 807. ton, 50 U. S. (9 How.) 522; Dupleix Gl. Vance v. Grainger, Cam. & N. V. De Eoven, 2 Vern. 540; Mclver v. (N. C.) 71. ' Disabilities in Personal Actions. 1195 § 253. Disability of defendants. It will be perceived that there is not in any of the statutes any saving in favor of the plaintiff on account of any disability of the defendant, and, consequently, that the mere circumstance that the person against whom a right of action accrues to a plaintiff, himself under no legal disability, is under a legal disability, does not save his claim from the operation of the statute because the defendant is an infant, non compos mentis, a feme covert, or alien enemy; and this was also the case under the statute of James.^^ The rea- son for this is hardly apparent, in view of the fact that the plain- tiff, in the case of his own disability, is so carefully considered, especially in cases where the defendant, by reason of disability on his part, cannot be made a proper party to an action."^ But while in the statute of James, as is also the case in the statute of several of the States of this country, if the plaintiff "■ is beyond seas," when his right of action accrued to him, his remedy is saved to him until his return into the country, yet his right of action is not saved by reason of the defendant's absence " beyond seas ;" and unless provision is made by statute for the service of process upon an absent defendant, who has no known residence, place of business, or property in the State, a plaintiff's claim would be lost because of the impossibility of making service upon him. 63. Jones v. Turberville, 2 Ves. Jr. Story v. Fry, 1 Y. & C. Cli. 603; Wil- li; Fladong v. Winter, 19 "Ves. 196; liams v. Jones, 13 East 439. Fannin v. Anderson, 7 Q. B. 811; 63. Banning on Limitations, 85. 1196 Statutes op Limitation. CHAPTER XXIII. Pekdenct of Legal Peoceedings, Istjunction, oe Stay. Section 253a ( 1 ) . Pendency of action or other proceeding. In general. 253a (2). Pendency of action on different cause or in different forum. 253b. Pendency of appeal. 253c. Suspension or stay in general. 253d. Supersedeas or stay of proceedings. 253e. Pendency of arbitration or reference. 253f. Property in custody of the law. 253g. Pendency of proceedings under assignment for creditors or in insolvency or bankruptcy. 253h. Injunction. 253i. Stay laws. 253j. Suspension of statute of limitations. § 253a(l). Pendency of action or other proceeding — ^In general. Statutes of limitation are statutes of repose, based on the like- lihood that inaction for a protracted period would not occur un- less a settlement had been made ; and while litigation is going on, and the parties are using legal proceedings to effect a settlement, it would be at variance with the principles underlying limitations to hold that such statutes were then running.'^ Limitations do not run against an action by a receiver to enforce the liability of a shareholder of a national bank while proper liquidation proceed- ings are pending in a court of equity.^ When a person is prevented from exercising his legal remedy by some paramount authority, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his 1. Klumpp V. Thomas, 162 Fed. of the remedy by action. Harrison 853, 89 C. C. A. 543 (C. C. A., Pa.), v. Scott, 77 Kan. 637, 95 Pac. 1045. 2. King V. Pomeroy, 121 Fed. 287, See also, Walterscheid v. Bowdish, 77 58 C. C. A. 209 (C. C. A., Kan.). Kan. 665, 96 Pac. 56; Steffins v. Gur- In order that the pendency of other ney, 61 Kan. 293, 59 Pac. 735; City proceedings may toll the statute of of Hutchinson v. Hutchinson, 92 Kan. limitations, the proceedings must be 518, 141 Pac. 589. Buch as to prevent the enforcement Pendency of Legal PEOCEEDiwaa. 1197 right.' While an action against one claiming by adverse possession would stop the running of limitations pending the action, the rule will not apply to stop the running of limitations against a sub- sequent action, where the suit resulted in no change of possession.^ Where contractors who laid a pavement were refused payment on the ground that it was not in compliance with the contract and were defeated in actions for the contract price and on the quantum meruit, the pendency of those actions tolled the statute of limi- tations as to their right to remove the pavement.^ In view of Missouri Eev. St. 1909, § 2391, referring to actions in ejectment against several defendants, a previous suit against defendant who occupied land adversely, though praying cancellation of the deed to him, was held identical with a subsequent action of ejectment, and to toll the statute of limitations.^ Where, in a proceeding be- fore the New York State board of claims for allowance of a claim for work and materials furnished for the construction of a State asylum, under a contract with the managers, plaintiff sought to avoid the bar of the statute of limitations of six years by showing various efforts to collect the claim before it was barred, it was held that a mandamus proceeding against the managers to compel 3. St. Paul, etc., Ey. Co. v. Olson, property voluntarily transferred wlth- 87 Minn. 117, 91 N. W. 294, 94 Am. out consideration, to the payment of St. Eep. 693. And see Downer v. the judgment. Graham's Adm'r v. Union Land Co., 103 Minn. 393, 115 English, 160 Ky. 375, 169 S. W. 836. N. W. 207. A void judgment against the assignor 4. Martin v. Hall, 152 Ky. 677, 153 on a note will not suspend the run- S. W. 997. See also, as to pendency ning of limitations in his favor of action or other proceeding: City against an action against him on the of Louisville v. Meglemery, 107 Ky. note. Arnett v. Howard, 156 Ky. 133, 31 Ky. Law Rep. 751, 52 S. W. 458, 161 S. W. 531. 1053; City of Louisville v. Hornsby's 5. Snouffer & Ford v. City of Tip- Ex'r, 23 Ky. Law Eep. 1238, 64 S. W. ton, 161 Iowa 323, 142 N. W. 97. 996; Hyatt v. Anderson's Trustee, 25 6. Norton v. Reed, 253 Mo. 335, 161 Ky. Law Eep. 132, 74 S. W. 1094; S. W. 843. See also, Estes v. Nell, 25 Ky. Law Rep. 711, 76 S. W. 337. 140 Mo. 639, 41 S. W. 940; De Both Under Ky. St., §§ 3519, 2544, ef- v. Rich Hill Coal-Min. Co., 141 Mo. forts of a debtor to defeat liability, 497, 43 S. W. 1081; Sanford v. Her- delaying judgment, do not extend the ron, 161 Mo. 176, 61 S. W. 839, 84 time for bringing suit to subject Am. St. Eep. 703. 1198 Statutes of Limitation. them to measure stone furnished as provided in the contract did not stop the running of the statute, since the State was not a party, and the managers were not authorized to represent the State in any litigation, and such proceeding was not a necessary preliminary to the presentation of the claim to the State board of audit.' 7. Bissell V. State, 70 App. Div. 238, 73 N. Y. Supp. 1105, judg. aflf'd, 177 N. Y. 540, 69 N. E. 1120. See, generally, as to the effect of the pendency of an action or other proceeding on the operation of stat- utes of limitation: AZa.— Taber v. Koyal Ins. Co., 124 Ala. 68, 26 So. 253. ArJc.—Cole v. Hall, 85 Ark. 144, 107 S. W. 175. Cal. — Clyne v. Easton, Eldredge & Co., 148 Cal. 287, 83 Pac. 36, 113 Am. St. Eep. 253; Earle v. Bryant, 13 Cal. App. 553, 107 Pac. 1018. Colo. — Patterson v. Fort Lyon Ca- nal Co., 36 Colo. 175, 84 Pac. 807; Altvater v. First Nat. Bank, 45 Colo. 528, 103 Pac. 378, the mere filing of a claim against the estate of a dece- dent in the county court did not ar- rest the running of the statute of limitations. Conn. — The law calls for no one to perform a nugatory act, and a suit which could not be maintained would be useless to prevent running of limi- tations as to a cause of action. Ap- peal of Beardsley, 83 Conn. 34, 75 Atl. 141. Ind.—Fa.st v. Swisher, 182 Ind. 501, 107' N. E. 6. La. — ^Succession of Williams, 133 La. 865, 61 So. 853; Pees v. Sheri- dan, 135 La. 7, 64 So. 923, a recon- ventional demand interrupts prescrip- tion during pendency of the action; In re Southern Wood Mfg. Co., 49 La. Ann. 926, 22 So. 39; Woodcock V. Baldwin, 110 La. 370, 34 So. 440. Md. — Williams v. Waiters, 97 Md. 113, 54 Atl. 767; Williams v. Taylor, 99 Md. 306, 57 Atl. 641, applying Act Va. Dec. 22, 1897 (Acts 1897-98, p. 6, c. 30). Neb. — Patrick v. National Bank of Commerce, 63 Neb. 200, 88 N. W. 183. N. C. — Governor v. Franklin, 7 N. C. 213; Davis v. Pierce, 167 N. 0. 135, 83 S. E. 182. Ohio. — Mills, Spellmire & Co. v. Whitmore, 12 0. C. D. 338, 22 Ohio Cir. Ct. E. 467; Bray v. Darby, 83 Ohio 47, 91 N. E. 881, the allowance of a claim by an administrator sus- pends the right of the creditor to sue thereon, and thus arrests the running of limitations. Tenn. — Weaver v. Euhm (Ch. App.), 47 S. W. 171. Tex. — Cates v. Field (Tex. Civ. App. ) , 85 S. W. 52 ; Holland v. Shan- non (Civ. App.), 84 S. W. '854; Eobinson v. Thompson (Civ. App.), 52 S. W. 117, rev'd Thompson v. Eob- inson, 93 Tex. 165, 54 S. W. 243, 77 Am. St. Eep. 843; Hanrick v. Gur- ley (Civ. App.), 48 S. W. 994, modi- fied 93 Tex. 458, 54 S. W. 347, and 93 Tex. 458, 55 S. W. 119, 56 S. W. 330; Maes v. Thomas (Civ. App.), 140 S. W. 846. Fa.— Sipe v. Taylor, 106 Va. 331, 55 S. E. 543; Eobinett's Adm'r v. Mitchell, 101 Va. 763, 45 S. E. 387, PENDENCY OF LeGAL PROCEEDINGS. 1199 § 253a (2). Pendency of action on different cause or in different forum. In an action under Illinois Kev. St. c. 68, § 15, providing that the expenses of the family are chargeable upon the property of both husband and wife or either of them, and in relation thereto they may be sued jointly or severally, the running of the statute of limitations is not tolled as against the wife by the fact that a judg- ment had been obtained against her husband.^ Prescription on the notes of a corporation is not interrupted by a suit brought against certain of the stockholders upon the theory of their being bound as commercial partners, in consequence of failure to effect legal in- corporation, though the receiver of the corporation may have at- tempted to consolidate such suits with the receivership.^ The pendency of an action against a deputy sheriff for seizure of plain- tiff's property under a writ against another does not suspend the running of limitations in favor of the sheriff.^*' That defendants were sued by other parties for the land in controversy during the time necessary to complete the period of limitations in favor of defendant as against plaintiff did not interrupt the statute as be- tween them.^ Where residuary devisees execute a power of at- 99 Am. St. Kep. 938; Gunnell's 138 III. App. 147. As to partition Adm'rs v. Dixon's Adm'r, 101 Va. suit, see Spencer v. Wiley, 46 111. 174, 43 S. E. 340; Callaway's Adm'r App. 585. V. Saunders, 99 Va. 350, 38 S. E. 9. Taylor v. Vossburg Mineral 182; Covington v. GrifSn's Adm'r, 98 Springs Co., 128 La. 364, 54 So. 907. "Va. 124, 34 S. E. 974; Repass v. 10. Lyman v. Holmes (Vt.), 93 Atl. Moore, 96 Va. 147, 30 S. E. 458; 829. Harvey's Adm'r v. Steptoe's Adm'r, 11. Paterson v. Rector (.Tex. Civ. 17 Grat. 289. App.), 91 N. E. 861. And see, as to ■yp-. yg,_ Woods v. Douglass, 52 W. the effect of tlie pendency of action Va. 517 44 S. E. 234; Eovpan v. on different causes on limitations, Chenoweth, 49 W. Va. 287, 38 S. E. under Texas statutes: Noel v. Clark, 544, 87 Am. St. Eep. 796; KeCk v. 25 Tex. Civ. App. 136, 60 S. W. 356; AUender, 42 W. Va. 420, 26 S. E. H«rr v. Rodriguez (Civ. App.), 50 437. S. W. 487; Hays v. Tilson, 18 Tex. fyis_ ^Maldaner v. Beurhaus, 108 Civ. App. 610, 45 S. W. 479; Bowen Wis. 25, 84 N. W. 25. v. Kirkland, 17 Tex. Civ. App. 346; 8. Staver Carriage Co. v. Beaudry, Robb v. Henry (Civ. App.), 40 S. 1200 Statutes op LtMiTATioir. tomey, autliorizing the attorney to sell and convey all their inter- est in the real estate of the decedent, and the land is thereafter sold Tinder such power, proceedings in the Surrogate's Court for the settlement of the personal estate of the testator, in which the de- visees were defendants, did not prevent them from asserting any remedies they might have for the moneys collected under the power of attorney, so as to prevent the running of the statute.^^ Where the court has refused to entertain jurisdiction of a suit to recover lands because a controversy concerning them was then pend- ing between the parties in the land department of the United States, limitations do not begin to run against the right to recover the lands until after the termination of such controversy.-^^ An action to foreclose a mortgage does not suspend the running of limitations as to an action on the notes secured by the mortgage.-'* W. 1047; City of Dallas v. Kruegel, 95 Tex. 43, 64 S. W. 922. 12. Yates v. Wing, 43 App. Div. 356, 59 N. Y. Supp. 73. Code Civ. Proc, § 405, authorizing actions to be brought after the period limited, ■where a prior action has been brought -within such period, applies to an action for wrongful death re- quired by section 1902 to be com- menced -within two years after the death. Hoffman v. Delaware & H. Co., 148 N. Y. Supp. 509. 13. Frink v. Hoke, 35 Or. 17, 53 Pac. 1093. 14. Hinchman v. Anderson, 32 Wash. 198, 72 Pac. 1018, under 2 Ballinger's Ann. Codes & St. Wash., § 5893. Prior to Nebraska Act of 1897 (Laws of 1897, p. 378, c. 95) the in- stitution of a, suit to foreclose a, mortgage and for personal judgment against the makers of notes tolls the statute of limitations on the liability of the makers on the notes. Carstens V. Eller, 5 Neb. (Unoff.) 149, 97 N. W. 631; Harris v. Nye & Schneider Co., 3 Neb. (UnofF.) 169, 91 N^ W. 250. As to the effect on limitations of the pendency of an action or other proceeding on a different cause or in a different forum, in other jurisdic- tions, see the following cases: Ark. — Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12. D. G. — Gibson v. Eufif, 8 App. D. C. 262. Go.— Schofield v. Woolley, 98 Ga. 548, 25 S. E. 769, 58 Am. St. Rep. 315. Iowa. — Freeburg v. Eksell, 123 Iowa 464, 99 N. W. 118. Kan. — McDonald v. Symns ^Grocer Co., 64 Kan. 529, 67 Pac. 1111. Ky.- — Masonic Temple Co. v. Pflanz, 21 Ky. Law Rep. 583, 52 S. W. 821; Turner v. Everett, 5 Ky. Law Rep. (abstract) 325; Dugan's Adm'r v. Mitchell, 5 Ky. Law Eep (abstract) 181. Pehdeitct op Legal Peooeedings. 1201 § 253b. Pendency of appeal. The running of the statute against an action on an appeal under- taking given on appeal to the general term of the superior court of the city of New York is not affected by the taking of a further appeal from the judgment of the general term to the court of ap- peals. -^^ An action for specific performance of an agreement to transfer property to an attorney in consideration of his services is properly brought within four years from the judgment on ap- peal in the action in which the services were rendered.^^ The Mich. — O'Toole v. Hurley, 115 Mich. 517, 4 Detroit Leg. N. 965, 73 N. W. 805. Minn.— St. Paul, M. & M. Ry. Co. V. Olson, 87 Minn. 117, 91 N. W. 294, 94 Am. St. Rep. 693. Mo. — -Tower v. Compton Hill Imp. Co., 192 Mo. 379, 91 S. W. 104. Mont. — ^Mantle v. Speculator Min. Co., 27 Mont. 473, 71 Pac. 665. 2V. J. — Ware v. Weatherby's Ex'rs (N. J. Sup.), 45 Atl. 914. N. Y. — Bissell v. State, 70 App. Div. 238, 73 N. Y. Supp. 1105, judg. aff'd, 177 N. Y. 540, 69 N. E. 1120. Tenn. — Grayson v. Harrison (Tenn. Ch. App.), 59 S. W. 438. Va. — Caperton v. Gregory, 11 Grat. 505. 15. Howard Ins. Co. of New York V. Silverberg, 94 Fed. 921, 36 C. C. A. 549, aff'd judg., 89 Fed. 168 (C. C. A., Cal.). An appeal from a decree confirm- ing a foreclosure sale suspends the running of limitations against an ap- plication for a deficiency judgment. Brand v. Garneau, 3 Neb. (Unoff.) 879, 93 N. W. 219. The filing and approval of a super- sedeas bond in an error proceeding from a judgment of the district court suspends the lien of the judgment 7G and limitations against the lien. Ebel V. Stringer, 4 Neb. (Unoff.) 43. An appeal from the final order and judgment of the district court to the supreme court, in the absence of a supersedeas, does not suspend limita- tions. Bank of Stockton v. Weins, 13 Okl. 502, 71 Pac. 1073. Petitioning for a writ of error is but a continuation of the original suit, and not the commencement of a new one, so far as limitations are concerned. Duke v. Helms, 100 Tenn. 249, 46 S. W. 761. Though a judgment is suspended pending appeal, it is not thereby so vacated as to allow limitations to continue to run after its rendition, in a suit to recover lands held ad- versely. Miller v. Gist, 91 Tex. 335, 43 S. W. 263, modifying judg., Gist V. East, 16 Tex. Civ. App. 274, 41 S. W. 396. If an appeal bond has been duly filed with the justice rendering the judgment, the running of the statute is tolled until the final disposition of such appeal. Rosenberg v. Pritzker, 156 111. App. 463. 16. Archer v. Harvey, 164 Cal. 274, 128 Pac. 410. Limitation against a receiver's right to recover his compensation and 1202 Statutes of Limitation. right to sue for malicious prosecution of a civil action accrues from the rendition of a judgment for defendant and is "barred if not brought within one year after such judgment, though a pro- ceeding in error may have intervened.-''' A right of action accrues on plaintiff's undertaking in replevin when he fails to comply with the judgment rendered against him, and the statute begins to run from the rendition of the judgment even though plaintiff prosecutes a proceeding in error, without giving a supersedeas bond, to re- verse the judgment.-'^ Where an insurer, which has procured reinsurance, contests payment on the original policy in good faith, limitations do not run against its right of action against the re- insurer until final judgment against it in the appellate court.^* Since a suit to set aside an alleged fraudulent conveyance can be prosecuted notwithstanding an appeal from the judgment in the original suit against the debtor, the pendency of such appeal did not suspend the statute of limitations against the suit to set aside such conveyance.^" expenses from the plaintiff in the ac- tion in which he was appointed is suspended pending an appeal from the settlement of his final account. Ephraim v. Pacific Bank, 129 Gal. 589, 63 Pac. 177. 17. Levering v. National Bank of Morrow County, 87 Ohio 117, 100 N. B. 323. As to an appeal from an action to recover from a stockholder in another State of an insolvent cor- poration, under Rev. St. Ohio, 1908, § 3360d, see Irvine v. Bankard, 181 Fed. 206 (C. C, Md.). 18. Delay v. Yost, 59 Kan. 496, 53 Pac. 482. As to an appeal from a judgment of conviction for unlawful sale of intoxicants, see State v. Alex- ander, 84 Kan. 393, 114 Pac. 241. 19. Insurance Co. of State of Penn- sylvania V. Telfair, 37 Misc. Rep. 247, 57 N. Y. Supp. 780, rev'd . 45 App. Div. 564, 61 N. Y. Supp. 323. 20. State v. Osborn, 143 Ind. 671, 43 N. E. 921. But where plaintiff could not maintain an independent action for the recovery of damages for the taking of- his property by a, city by condemnation while an ap- peal was pending from the condemna- tion proceedings, the statute of limi- tations did not run against him dur- ing that time. City of Ft. Wayn« v. Hamilton, 132 Ind. 487, 32 N. E. 324, 32 Am. St. Rep. 263. As to the effect on limitations of the pendency of an appeal, in other jurisdictions; see the cases below: La. — Slawson v. McCaflfery, Man. Unrep. Cas. 313. Mo. — Moore v. Gibson, 130 Mo. App. 590, 109 S. W. 1056. Tew. — Britton v. Matlock, 40 Tex. Civ. App. 375, 89 S. W. 1092; Bos- tick v. Heard (Civ. App.), 164 S. W. 34. Pendency of Legal Pkoceedings. 1203 § 253c. Suspension or stay in general. Whenever the law requires a delay in legal proceedings, it also suspends the running of limitations.^^ The rule that, when a per- son is prevented from exercising his legal remedy by some para- mount authority, the time for which he is thus prevented must not be counted in determining the running of limitations, applies only where such authority is invoked by the debtor.^^ Where de- fendant, who agreed to diligently prosecute plaintiff's application to patent, did not use diligence in accordance with the agreement, and the same was rejected prior to the date fixed for the payment of money by defendant, the statute of limitations was not tolled by an agreement extending the time for deposit of the money .^^ § 253d. Supersedeas or stay of proceedings. The statutory provision allowing judges to enlarge the time within which a proceeding in an action after its commencement must be done does not authorize an order allowing a plaintiff, who has at the time no cause of action against defendant, to post- pone indefinitely the service of complaint in the action for the purpose of preventing the statute of limitations from running against some caiise of action which might thereafter be determined to exist.2* If, as required by statute, a claim against a city is Wash.— Gieen v. Spokane County, mandate of the United States Cir- 55 Wash. 308, 104 Pac. 510. cuit Court of Appeals, should not be 21. Hume v. Perry (Tex. Civ. counted in determining whether limi- App.), 130 S. W. 594. tations had run against plaiutiflf's Under Kentucky statute, § 2544 right to thereafter bring the action (Russell's St., § 210), providing in the State court. Knight's Adm'r that, where the doing of an act nee- v. Illinois Cent. R. Co., 143 Ky. 418, essary to save any right is lawfully 136 S. W. 874. restrained, the time of such restraint 22. Lagerman v. Casserly, 107 shall not be estimated in the applica- Minn. 491, 120 N. W. 1086. tion of any statute of limitation, the 23. Dilg v. Strauss, 158 App. Div. time between the overruling of plain- 718, 143 N. Y. Supp. 948. tiff's motion in the United States 24. Mercantile Nat. Bank v. Corn Circuit Court to dismiss the action Exchange Bank, 68 Hun (N. Y.) 95, without prejudice, and such dismis- 32 N. Y. Supp. 643. sal by that court pursuant to the 1204 Statutes of Limitation. presented to the city comptroller before the bar of the statute of limitations has attached, but, under the statute thirty days must elapse before action can be commenced, this is a stay by " statutory prohibition," within the meaning of that term as used in section 406, ITew York Code of Civil Procedure, excepting such period from the computation of time, and the running of the statute is suspended during the thirty days.^^ A stipulation to stay pro- ceedings on a claim against an estate, given in pursuance of an order requiring it, is, in effect an order for a stay, under Code Civ. Proc, § 406, providing that, where the commencement of an action has been stayed by an order, the time of the stay is not a part of the time limited for the commencement of an action, and the time of such stay should be excluded in computing the time within which an action must be commenced under section 1822, which bars a claim presented against an estate and rejected, unless ac- tion is brought thereon six months after rejection.^^ The running 25. Brehm v. City of New York, 104 N. Y. 186, 10 N. E. 158. Where, on appeal to this court judgment was reversed, and plaintiff, under Code, § 104, had a year after the reversal to commence a new ac- tion, and defendant took an appeal to the Court of Appeals, and gave an undeiiaJving to stay proceedings on the judgment of this court, the com- mencement of a new action was stayed by statute prohibition, within section 105 of the Code, providing that the time of the continuance of the prohibition shall not be part of the time limited for the oommencp- ment of the action. Worster v. Forty-Second St., etc., R. Co., 6 Daly (N. Y.) 528. 26. Wilder v. Ballou, 63 Hun (N. Y.) 118, 17 N. Y. Supp. 635. Where, in an action on certain ob- Ugations it appeared that, some years before, defendant corporation ob- tained a judgjnent in replevin against plaintiil for these obligations, which judgment was afterwards reversed, the statute of limitations did not cease to run in favor of defendant while the possessory judgment in its favor was in force; such a judgment not being an order staying the com- mencement of an action, which, un- der Code Civ. Proc., § 406, prevents the running of the statute. Best v. Davis Sewing M'ach. Co., 65 Hun (N. Y.) 72, 19 N. Y. Supp. 731, 22 Civ. Proc. R. 363. Where a creditor of an incompet- ent properly brought suit against him prior to the appointment of a committee, and the committee applied for a stay of the prosecution of the action a few days within the expira- tion of the statute of limitations, an order granting a, stay did not affect limitations; the creditor, on his claim not being paid in full, being at Pendency of Legal Peoceedinqs. 1205 of the statute of limitations against a judgment against a town- ship will be suspended during the operation of a supersedeas bond in favor of the township staying the issuance of execution thereon.^^ The statute of limitations does not run against the issuance of an execution on a sale bond during the period for which defendants have obtained a stay.^' While a creditors' bill has the effect to stay during its pendency the running of the statute of limitations it has that effect only as to such debts as are brought into the suit and kept alive while it is pending, and, after the conclusion of the suit, the statute continues to run.^^ Where, in an action by a builder for the contract price, defend- ant, after answer, applied for a stay of proceedings pending the determination of a suit in another court by a subcontractor to es- tablish a lien on the building, and an order was entered reciting the subcontractor's suit, and ordering that the further progress of the builder's suit be stayed until the further order of the court, it was held that the stay was merely to prevent the case from coming to trial until the question of the subcontractor's lien was deter- mined, and did not preclude the filing of an amended petition, and hence did not prevent the running of the statute of limitations as to claims for extras not mentioned in the original petition.^* liberty, after the discharge of the 28. Preston v. Breclcinridge, 86 committee, to continue the action for Ky. 619, 6 S. W. 641. any unpaid balance. Grant v. Hum- 29. Prince's Adra'r v. McLemorej bert, 100 N. Y. Supp. 44, 114 App. 108 Va. 269, 61 S. E. 802. Div. 462. Tlie entry, in an action for the set- 27. Ware v. Pleasant Grove Tp., 9 tlement of a trust estate, of a decree Kan. App. 700. requiring all creditors thereof to pre- Where execution was issued on a sent their claims therein, and re- valid judgment, levy made on the straining the prosecution by claim- debtor's real estate, and the execu- ants of separate actions, stops the tion retvirned as satisfied, and after- running of the statute of limita- wards, for irregularities, the execu- tions against judgments previously tion and levy were vacated on audita obtained against such estate. querela, the statute of limitations Houck's Adm'r v. Dunham, 92 Va. did not begin to run on the judg- 211, 23 S. E. 238. i ment until the time such execution 30. Taub v. Woodruff (Tex. Civ. and levy were vacated. Fairbanks v. -^PP-), 134 S. W. 750. Devereau.x, 58 Vt. 359, 3 Atl. 500. 1206 Statutes of Limitation. » § 253e. Pendency of arbitration or reference. Where a statute (Joint Eesolution No. 34) recites the matters in controvesy between the State and the general government, and authorizes certain officers on behalf of both parties "to com- promise, adjust, and settle all such claims, and to report any bal- ance arising therefrom to the governor of the State and to Con- gress," it is sufficient to prevent the running of the statute of limi- tations.^^ The reference by the senate to the court of claims of a bill for the relief of a claimant does not invest that court with jurisdiction, relieved from the limitations prescribed by Rev. St., § 1069, or that of two years established by the captured and aband- oned property act of March 12, 1863.'^ A statute limiting the time for bringing an action is not defeated or its operation retarded by negotiations for a settlement, or for a reference, pending between the parties, provided there be no agreement for delay, and defend- ant has done nothing to mislead plaintiff.^^ But reference of a suit to arbitrators takes the subject-matter referred out of the statute of limitations.^* Where a suit was begun before the right to sue was barred, and was adjourned to a day after the six years had ex- pired, and on that day the parties agreed in writing to an arbitra- tion, whereupon the suit was discontinued, and defendant after- wards revoked the submission, he could not interpose the plea of the statute to another suit begun for the same cause of action.^ While a defendant cannot avail himself of the bar of the statute of limitations if he did anything to induce the plaintiff to delay bringing suit, a mere agreement to arbitrate and the selection of an arbitrator, not followed up by any steps by the plaintiff to have the matter submitted, or any act of the defendant to prevent submis- sion, will not estop the defendant from relying on the statute.^'' The rule that the mere submission to arbitration of matters on 31. Louisville & N. R. Co. v, 34. Colkings v. Thackston, 1 N. C. United States, 47 Ct. CI. (U. S.) 139. 312. 32. Ford v. United States, 116 U. 35. Anderson v. Sibley, 28 Hun (N. S. 213, 6 Sup. Ct. 360, 29 L. El. 608. Y.) 16. 33. Gooden v. Amoskeag Fire Ins. 36. Hornblower v. George Wash- Co., 30 N. H. 73. ington University, 31 App. D. C. 64. Pendency of Legal Peockbdings. 1207 whicli tile arbitrators never acted would not prevent the running of the statute of limitations during the continuance of the submis- sion is not affected by the fact that, pending the submission, the right of action was suspended.^'' When, in a creditors' suit in equity against an administrator and the heirs, the court takes into its own hands the administration of the assets, by referring the cause to a commissioner to take an account of the debts of the in- testate, the statute of limitations ceases to run against the creditors, not formal parties to the bill, the bill not being in form a creditora' bill, from the date of such decree.^* § 253f. Property in custody of the law. That the subject of an action is held in custodia legis in another action, to which defendant is neither a party nor in privity with a party, and over which he has no control, will not suspend the running of the statute of limitations in his favor. ^^ Whether a debt sought to be proved against an insolvent beneficiary corpora- tion is barred by time depends upon its status when decree was made sequestrating the corporation's assets.^" The mere appoint- ment of a receiver does not affect the running of limitations.'*^ In 37. Oowart v. Perrine, 21 N. J. Eq. business of the defendant were in the (6 C. E. Green) 101. hands of a receiver. Id. 38. Wooflyard v. Polsley, 14 W. Va. Where an action at law was begun 211. See also, where the reference against a railroad corporation while to a commissioner was by consent of it was in the hands of a receiver, and parties. Fowler v. Lewis' Adm'r, 36 afterwards the receiver was substi- W. Va. 112, 14 S. E. 447. tuted as defendant in place of the 39. Hawkins v. Brown, 78 Kan. corporation, it was held that the S84, 97 Pac. 479. chancery court appointing the re- 40. Attorney General v. Supreme ceiver would grant plaintiff permis- Council A. L. H., 196 Mass. 151, 81 sion to proceed against the receiver, N. E. 966. a.nd would restrain the receiver from 41. Cain v. Seaboard Air Line Ey., setting up the statute of limitations, 138 Ga. 96, 74 S. E. 764. it appearing that the claim was not Under Ga. Civ. Code 1910, § 4497, outlawed when the original suit was an action for personal injuries, begun. Lehigh Coal & Nav. Co. v. brought more than two years from Central R. Co., 42 N. J. Eq. (15 the injury, is barred, though during Stew.) 591, 8 Atl. 648. a portion of that time the assets and In Arkansas, a tenant who has pur- 1208 Statutes of Limitatioh. !N"orth Carolina, where a note is deposited in the hands of a master, by order of a court of eqiiity, the acts of limitation are ■thereby suspended j^^ but where commissioners in insolvency, un- der order of the court, loan money of the estate, a note taken as security therefor is not a fund in the hands of the court, and hence is subject to limitations.^^ In Missouri, it is held that, if an individual partner's interest in real estate standing in his name but bought with the firm's money was as personal property in the probate court's custody, on insolvency of defendant, yet it was real estate in fact, so that such custody would not defeat the op- eration of the statute of limitations and the doctrine of laches.** In Louisiana, an executor is a judicial depositary of property of the estate he represents, and his possession is that of the creditors, for whom he is quasi mandatory. Hence his custody of succession effects, continued by the assent and acquiescence of the heirs, sus- pends the running of the statute of limitations in favor of the creditors whose claims have been acknowledged.*^ By the Virginia attachment law, the fund is in custody of the law, and the statute chased the property occupied by him Phifer v. Berry, 110 N. C. 463, 15 at a sale for taxes holds it subject S. E. 1. to the control of the court, and may The statute of limitations does not be compelled by rule to surrender pes- run against a debt during the life session thereof to the receiver; and, of the debtor's estate of homestead, as to such proceeding, the statute of if the homestead has been laid off, limitations as to actions does not and if the debt is one affected by the apply. Waggener v. McLaughlin, 33 allotment. Morton v. Barber, 90 N. Ark. 195. C. 399. ^ 42. Vance v. Grainger's Ex'rs, 1 N. 44. Troll v. City of St. Louis, 257 C 391. Mo. 62.6, 168 S. W. 167, holding also 43. Causey v. Snow, 122 N. C. 326, that the equitable right of a part- 29 S. E. 359. nership in land purchased with its Pending administration the statute funds for partnersliip use by one of of limitations will not run, as to the partners and standing in his funds in the hands of an administra- name is not within the custody of the tor, in favor of the decedent's heir at probate court in its administration law, and against creditors who have of partnership assets for the benefit reduced their claims to judgment of creditors. against the personal representatives; 45. Morris v. Cain's Ex'rs, 39 La. such funds being held in trust for the Ann. 712, 1 So. 797, 3 So. 418. See creditors until the estate is settled, also, Norres v. Hays, 44 La. Ann Pendency of Legal Peocebdings. 1209 of limitations does not run while the suit is pending, and a suit brought against the executor of the garnishee after the termination of the principal suit in sufficient time is not barred by the general statute of limitations.*" The Maryland tax law does not apply where a court of equity has taken jurisdiction of the property liable for taxes.*' In Tennessee, the statute of limitations has no applica- tion to a note executed to a clerk of a court, for property sold in the progress of a cause, while the note is in the custody of the law.*^ § 253g. Pendency of proceedings under assignment for creditors or in insolvency or bankruptcy. Proceedings in bankruptcy under the Federal laws suspend the operation of the statute of limitations, as to all parties properly in the bankrupt proceedings, but the pendency of bankrupt proceed- ings against certain defendants does not have the effect of interrupt- ing prescription as to one who was not a party to the bankruptcy proceedings.*^ The running of the statute of limitations against an open account is not tolled by the mere filing of a petition in bank- 907, 11 So. 462; McKnight v. Cal- by a decree in chancery to give se- houn, 36 La. Ann. 408. curity for the forthcoming of a slave, Wliere an insolvent corporation is during the pendency and operative in process of liquidation in the hands force of such proceeding, the slave is of a liquidator appointed under the in the custody of the law; and the law, prescription does not run in operation of the statute of limitations favor of the corporation during the is arrested as between the parties term of the liquidation. Gaslight & thereto. Moore v. Cr.ookett, 29 Tenn. Banking Co. v. Haynes, 7 La. Ann. (10 Humph.) 365. 114. 49. Hortou T. Haralson, 130 La. See Succession of Marchand, 116 1003, 58 So. 858 (1912). Where the La. 207, 40 So. 637, as to effect of a plaintiff sold defendant a bill of sheriff's sale under a writ of fi. fa. on goods in 1904, and a month later de- the running of prescription as to fendant was adjudged a bankrupt, other seizing creditors. and plaintiff procured an allowance 4G. Mattingly v. Boyd, 61 U. S. of its claim and participated in the' (20 How.) 128, 15 L. Ed. 845. dividends of the bankrupt estate, an 47. Hebb v. Moore, 66 Md. 167, 7 action in the State court for the Atl. 255. price in 1909 was barred by the three- 48. Tyner v. Fenner, 72 Tenn. (4 year statute of limitations. Simp- I*a) 469. son v. Tootle, Wheeler & Motter M'er- Where a person has been compelled cantile Co., 42 Okl. 275, 141 Pac. 448. 1210 Statutes of LiMiTATioir. ruptcy.^ The statute of limitations does not operate between the time of proving a debt against a bankrupt and the termination of the proceedings in his failure to get a discharge.^^ The period of suspension of a right of action, through pendency of proceed- ings, is not to be counted as part of the time prescribed by the statute of limitations to bar the action. ^^ Under ITew York Code Proc, § 105, and under the provisions of the Federal Bankrupt Act, the running of the statute of limitations is suspended during the pendency of the bankruptcy proceedings; and whether the bankruptcy court had jurisdiction is immaterial, if it in fact en- tertained the proceedings, and the bankrupt applied for a dis- charge.^^ In Massachusetts, the pendency of proceedings under the insolvent laws does not suspend the statute of limitations upon debts provable in insolvency, since such proceedings do not prevent 50. Nonotuck Silk Co. v. Pritzker, 143 111. App. 644 (1908). 51. Hawes v. Fette, 42 Ark. 370 (1883). 52. Hoff V. Funkenstein, 54 Cal. 233 (1880). 53. Rosenthal v. Plumb, 25 Hun (N. Y.) 336 (1881). After an adjudication in bank- ruptcy, the statute of limitations does not run against a creditor's claim that was not then barred thereby. The assignee stands as trustee for the creditors. Von Sachs V. Kretz, 72 N. Y. 548, aflf'g 10 Hun 95 (1878). The bankruptcy of the maker of a note does not suspend the operation of the statute of limitations. Har- well V. Steele, 17 Ala. 372 (1850). The pendency of proceedings in bankruptcy, under Act Ckmg. March 2, 1867, against a, debtor, does not .suspend the operation of the statute of limitations in his favor. Doe T. Erwin, 134 Mass. 90 (1883). Where a debt is proved in bank- ruptcy, the rurming of the limitations is not suspended by the pendency of the proceedings in bankruptcy. Ap- peal of Milne, 99 Pa. 483 (1882). Formal, but defective, proof of a mortgage debt was offered in bank- ruptcy before the statute of limita- tions had run against it. The suiE- ciency of the proof was not objected to. By leave of the court, and by agreement with the debtor, the claim was withdrawn, to be enforced in a State court. At the time of Jhe be- ginning of suit there, the statute of limitations had run. It was held that it could not be pleaded. Wof- ford V. Unger, 53 Tex. 634 (ISSO). Bankruptcy statutes do not gener- ally suspend the right of » creditor to commence an action, but only pre- vent him from prosecuting it to final judgment until the bankrupt has the opportunity to obtain his discharge. Porter v. Cummings, 108 Ga. 797, 33 S. E. 986 (1899). Pendency of Legal PuocEOEajiNGS. 1211 the creditor from bringing an action upon Ms debt.^* In Mary- land, a claim against an insolvent's estate not barred by tbe stat- ute at the time of filing with the auditor cannot become so after- wards.^ In Michigan, an assignment for the benefit of creditors made by a debtor does not prevent the running of the statute of limitations against his ereditor.^^ In New York, the statute of limitations ceases to run against claims against an insolvent es- tate on the appointment of a receiver.^' In Pennsylvania, the discharge of an insolvent's person, under the law, does not prevent the statute of limitations from running against the claim of a credi- tor/^ In South Carolina, a debtor who has taken the benefit of the insolvent debtor's act cannot afterwards plead the statute of limitations to a debt which existed, unbarred, at the time of his discharge, although contracted after the filing of the petition for the benefit of the act.^® In Tennessee, the statute of limitations is not restrained by the insolvency of the estate, nor by the pendency 54. Richardson v. Thomas, 79 Mass. (13 Gray) 381, 74 Am. Dec. 636; Stoddard v. Doane, 73 Mass. (7 Gray) 387; Collester v. Hailey, 73 Mass. (6 Gray) 517. So it has been held that the representation of the estate of a deceased person as insol- vent and the appointment of com- missioners do not suspend the opera- tion of the statute limiting actions against administrators to two years from the time of their giving bonds. Tarbell v. Parker, 106 Mass. 347; Richardson v. Allen, 116 Mass. 447. 55. Hignutt v. Garey, 63 Md. 190. Under the insolvent laws, the prop- erty of the insolvent is vested in the trustee appointed by the court. The trust thus created is an express trust for the benefit of the creditors of the insolvent, who are such at the date of his application, and their claims, unless then barred by the statute of limitations, are not afterwards, dur- ing the execution of the trust, af- fected by the lapse of time. In re Leiman's Estate, 33 Md. 335, 3 Am. Eep. 133. 56. Parsons v. Clark, 59 Mich. 414, 36 N. W. 656. 57. Ludington v. Thompson, 38 N. Y. Supp. 768, 4 App. Div. 117, aff'd 153 N. Y. 499, 47 N. E. 903. 58. Shoenberger v. Adams, 4 Watts (Pa.) 430; Gest v. Heiskill, 5 Rawle (Pa.) 134; Sletor v. Oram, 1 Whart. (Pa.) 106; Appeal of Feather, 1 Pen. & W. (Pa.) 333, overruled. The statute of limitations as to «, corporation stops running from the time of the sheriff's sale of all the property and franchises thereof. Sha- mokin Valley & P. R. Co. v. Malone, 85 Pa. 35. 59. Hagood v. Robinson, 7 Rich. Law (S. C.) 43; Sinclair's Ex'rs v. Lynah, 1 Speers (S. C.) 344. 1213 Statutes of Limitation. of an insolvent bill, nor by the orders or notices for the filing of claims.^" In Texas, an assignment for the benefit of creditors does not suspend the running of the statute of limitations against a matured debt mentioned in the assignment during the time the estate remains in the hands of the assignee, since the assignment does not interrupt the creditor's right of action; but the statute will run against such debt from the date of the assignment.*'^ In Virginia, in a creditor's suit for the administration of assets, where a decree for an accounting was made, it was held that the statute of limitations ceased to run against all debts of the debtor from the date of the decree.^^ In Illinois, a voluntary assignment for the benefit of creditors and the appointment of an assignee does not toll the running of the statute of limitations against an open account."^ In Maine, before the statute of 1887, the subsequent insolvency of defendant did not interrupt the running of limitation, and action on a claim provable in insolvency was barred by the general limitation of six years.''* In California, the time during which insolvency pro- ceedings are pending is excluded from the period of limitations, although the insolvency act authorizes the maintenance of suits for certain purposes by leave of court.^^ The appointnient of a receiver does not in any way effect the running of the statute of limitations.^" The appointment of a receiver or the existence of a receivership does not interrupt prescription of claims against the corporation to which the receiver was appointed.^' Upon the ap- pointment of a receiver in a proceeding for the voluntary dissolu- tion of a corporation, he becomes a trustee for the creditors of 60. Todd V. Wright, 59 Tenn. (12 65. Union Collection Co. v. Soule, Heisk.) 44r!. 141 Cal. 99, 74 Pac. 549, under the 61. Meusebach v. Half, 77 Tex. 185, Insolvency Act of 1895 (St. 1895, p. 13 S. W. 979. 153, c. 143) and Code Civ. Proc, 62. Ewing's Adm'r v. Ferguson's § 356. Adm'r, 33 Grat. (Va.) 548. 66. White v. Meadowcraft, 91 111. 63. Geddes-Brown Shoe Co. v. Sut- App. 293; Ellicott v. United States tie, 145 111. App. 407. Ins. Co., 7 Gill (Md.) 307. 64. Trafton v. Hill, 80 Me. 503, 15 67. Taylor v. Vossburg Mineral Atl. 64. Springs Co., 128 La. 364, 54 So. 907. Pendekct op Legal Proceedings. 1213 such corporation, whether or not their status as such creditors is then ascertained ; and the statute of limitations does not thereafter run against the claims of such creditors, so long as the trust is open and continuing.''^ The appointment of a receiver for the settlement of partnership affairs at the suit of the personal repre- sentative of a deceased partner, with power to collect and receive all moneys and property of the firm, and out of the proceeds to pay the debts of the firm, is for the benefit of all firm creditors, and, in analogy with a ereditoi:s' bill, suspends the running of the statute of limitations in equity against claims by firm creditors for the payment of partnership debts out of the firm assets in the receiver's hands.^' § 253h. Injunction. 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 him- self of the bar in a court of equity.™ In California, the running of the statute of limitations against an action for the wrongful issuing of an execution on a satisfied judgment is not suspended by injunction proceedings restraining the enforcement of the ex- ecution.'^ An injunction on a fieri facias suspends the running of the statute of limitations, in Georgia.'^ In Illinois, when the commencement of an action is stayed by injunction, order of a judge or court, or statutory prohibition, the time of the continu- es. Ludington v. Thompson, 153 N. chase money, brought within the Y. 499, 47 N. E. 903, aff'g 4 App. Div. statutory period after demand, was 117, 38 N. Y. Supp. 768. not barred. Eose v. Foord, 96 Cal. 69. Kirkpatrick v. McElroy, 41 N. 153, 30 Pac. 1114. J. Eq. (14 Stew.) 539, 7 Atl. 647. 72. Cox v. Montford, 66 Ga. 63. 70. Union Mut. Life Ins. Co. v. The statute of limitations does not Dice, 14 Fed. 533, 11 Biss. 373. run against the State during the 71. Wood V. Currey, 57 Cal. 208. time the Comptroller-Greneral is en- Where a seller of shares of stock joined by a Federal court from issu- to be issued by a corporation was un- ing any executions for taxes on cer- able to perform his contract because tain property. GJeorgia E. & Banking the issuance of the stock was en- Co. v. Wright, 124 Ga. 596, 53 S. E. joined, an action to recover the pur- 251. 1214 Statutes of Limitation. ance of the injunction or prohibition is no part of the time limited for the commencement of the action.''^ In Kentucky, when an in- junction does not stay an action, but only prescribes where and how it shall be instituted, the time of the continuance of the injunction is not to be excluded in determining whether the right to sue is barred by the statute of limitations.''' In Louisiana, the restraining of the execution of a judgment by a writ of injunction sued out by the judgment debtor does not interrupt the current of prescription.''^ In Maryland, the running of the act of limitations is suspended by an injunction.'^ In Michigan, the running of limitations is interrupted by an injunction preventing an action within the statutory period, the statute indicating the legislative policy to preserve rights which individuals may be prevented from exercising by a paramount power without their own fault." The Minnesota statutory provision suspending the running of limita- tions while the beginning of an action is stayed by injunction ap- plies only between parties to the suit.'^ In Mississippi, during the time of an injunction, by the debtor preventing execution for the 73. Tanton v. Boomgaarden, 89 111. 76. Little v. Price, 1 Md. Ch. 182. App. 500; Wild v. People, 92 111. 77. Steele v. Bliss, 166 Mich. 593, App. 66. 132 N. W. 345, so that, under Comp. An injunction in a suit by one in Laws, § 9754, an injunction which possession, restraining the owner of prevented the sale of realty under an the paramount title to land from set- execution levy would stay the run- ting up or insisting on any title or ning of Comp. Laws, § 9233, provid- interest therein, affords a sufficient ing that all execution liens sh^ll be ground in equity for not allowing the void after five years from the levy, statute of limitations to become a unless the realty be sooner sold. ' bar of such owner's right during the An injunction issued with refer- time such injunction was in force. ence to certain real property in a Kelly V. Donlin, 70 111. 378. suit to which plaintiff was not a 74. Biggs V. Lexington & B. S. R. party held not to suspend the statute Co., 79 Ky. 470. of limitations against plaintiff's riglit A decision of the Court of Appeals to recover the land in ejectment, held not a " lawful restraint,'' within West Michigan Park Ass'n v. Pere Ky. St., § 2544. Bank of Commerce Marquette K. Co., 172 Mich. 179, 137 v. Stone, 108 Ky. 427, 22 Ky. Law N. W. 799. Eep. 70, 56 S. W. 683. 78. Lagerman v. Casserly, 107 75. Yale v. Eandle, 23 La. Ann. Minn. 491, 120 N. W. 1086. 579. Psndenct of Legal Peoceedings. 1215 debt, the statute does not run against the debt.™ In New York, the operation of the statute of limitations is suspended during the time within which the bringing of suits is enjoined.^* The same rule prevails in Nevada,'^ in IvTorth Carolina,*^ and in North Dakota.85 An injunction against the commencement of an action does not save the running of the statute of limitations unless the stat- ute so provides, and no such provision is found in the statutes of Ohio or Florida.^* In South Carolina,*^ and Tennessee,*^ by 79. Wilkinson v. Flowers, 37 Miss. 579, 75 Am. Dec. 78. Where a debt is secured by a trust deed which the creditor is enjoined from foreclosing, the statute of limi- tations is suspended during the oper- ation of the injunction. Tishimingo Sav. Inst. V. Buchanan, 60 Miss. 496. 80. Fincke v. Funke, 35 Hun (N. Y.) 616. But an injunction obtained by a wife, restraining her husband from disposing of, or interfering with, her property, does not interrupt the run- ning of the statute of limitations against his right of bringing an ac- tion to recover it, or its full value, when wrongfully taken from his pos- session by a third person. Van Wag- gonen v. Terpenning, 122 N. Y. 222, 25 N. E. 254. To a limitation of the time within which an action may be brought, pre- scribed by contract. Code, § 406, sav- ing the rights of parties under the statute of limitations when they are stayed by injunction, does not apply. Wilkinson v. First Nat. Ins. Co., 72 N. Y. 499, 28 Am. Eep. 166, afif'g 9 Hun 522. 81. Wells, Fargo & Co. v. Vansic- kle, 112 Fed. 398. 82. Walton v. Pearson, 85 N. C. 34, mere irregularity in the granting of an injunction will not render it a nullity so as to prevent the suspen- sion of the statute of limitations, under Code, § 46, during the pen- dency of the injunction. 83. The commencement of an action on a judgment is not stayed within the meaning of Kev. Codes, § 5215, during the time the judgment credi- tor is required to obtain leave of court in order to bring suit thereon. Osborne v. Lindstrom, 9 N. D. 1, 81 N. W. 72, 46 L. E. A. 715. 84. Hunter v. Niagara Fire Ins. Co., 73 Ohio St. 110, 76 N. E. 563, 3 L. R. A. (N. S.) 1187, 112 Am. St. Eep. 669. See Treasurer of Brown County v. Martin, 50 Ohio St. 197, 33 N. E. 1112. 85. McLure v. Melton, 34 S. C. 377, 13 S. E. 615, 27 Am. St. Eep. 820, 13 L. E. A. 723, an order enjoining cred- itors from prosecuting actions at law against an estate, and fixing a time for proving their claims in the action in which the injunction was granted, will not suspend the running of the statute of limitations against a cred- itor who brings suit on a simple con- tract claim more than six years after the time so fixed. 86. Terrell v. Ingersoll, 78 Tenn. 1216 Statutes of Limitation. statute, when the commencenient of an action 13 stayed by injunc- tion, the time of the continuance of the injunction is not to be counted, in computing the running of the statute of limitations. In Texas, where plaintiff obtained an injunction restraining sale under a trust deed, equity will not suspend the running of the statute for the time the injunction was in force, in favor of the executors of the beneficiary in the deed who were not parties when the injunction was granted, and were in no wise prevented from bringing suit on the notes within the statutory period.*^ In Vir- ginia, the statute of limitations to judgments does not run while an injunction to the judgment is pending.^' § 2531. Stay laws. The stay laws passed during the Eebellion interposed no pb- stacle to the institution of a suit to fix the liability of indorsers.^' The stay law of 1861, forbidding the service of any process for the collection of money until after the expiration of the first session of the next general assembly, and providing that the operation of the statute of limitations shall be suspended while the act was in force, applied to actions on contracts then existing, and sus- pended the statute of limitations in such actions, during its con- tinuance and successive renewals.'" The running of the statute of limitations in favor of an adverse occupant against the owner (10 Lea) 77, the statute does not ap- 88. Hutsonpiller'a Adm'r v. Stov- ply to an injunction in a suit to er's Adm'r, 12 Grat. (Va.) 576. See which the debtor Is not a party. See Braxton v. Harrison's Ex'r, 11 Grat. also, Latta v. Sumerow, 73 Tenn. (4 (Va.) 30. Lea) 486; Bibb v. Tarkington, 70 In Kansas, where legal proceedings Tenn. (2 Lea) 31. restrain one party from exercising a 87. Davis v. Andrews, 88 Tex. 534, legal remedy against another, the 30 S. W. 432, 3 Am. & Eng. Dec. in running of limitations is postponed Eq. 587, 596, note. And see Converse or suspended during such restraint. V. Davis, 90 Tex. 463, 39 S. W. 277, City of Hutchinson v. Hutchinson, 92 rev'g (Tex. Civ. App.)-37 S. W. 247; Kan. 518, 141 Pac. 589. Yzaguirre V. Garcia (Tex. Civ. App.), 89. Jopling v. Turner, 32 Tex. 381. 172 S. W. 139. 90. Wradlaw v. Buzzard, 15 Rich. L. (S. C.) 158, 94 Am. Deo. 148. Pendency of Ljegal Proceedings. 1217 of land was suspended by the stay law of 1865 during the con- tinuance of that act.^^ A stay law which merely suspends the creditor's right to issue execution without interfering with his right of action, does not suspend the running of the statute of limi- tations.^^ § 253j. Suspension of statute of limitations. The Act of Congress of June 11, 1864 (13 Stat. 123), suspend- ing the statute of limitations during the Eebellion as to any ac- tion accruing against a person who, because of the conflict, was beyond the reach of process, was not unconstitutional as applied to actions in the State courts as well as in the Federal courts.'^ Where a statute imposing a liability for wrongful death provides for suit to enforce the same within a specified time, such limita- tion operates on the liability, and not on the remedy alone; and hence suit must be brought within that time, regardless of other statutes suspending the operation of the statutes of limitation.'* "Where a right had accrued before the passage of the Tennessee Code, § 4464, suspending limitations from May 6, 1861, to Janu- ary 1, 1867, the right was not affected or impaired thereby, or by the constitutional provision on the same subject.®^ Where the statute of limitations was suspended by law as to taxes due a State or county, mere lapse of time could not be set up to defeat their recovery.'^ 91. Pegues v. Warley, 14 S. C. 180. 95. Breekenridge Cannel Coal Co. 92. Kirkland v. Krebs, 34 Md. 93. v. Scott, 131 Tenn. 88, 114 S. W. As to the effect on limitations of 930. other State laws, see Bates v. Gre- See § 6, supra, and cases cited gory, 89 Cal. 387, 26 Pac. 891; Ma- there as to the effect of statutes of hone V. Central Bank, 17 Ga. Ill; the different States suspending stat- Hudson y. Carey, 11 Serg. & R. (Pa.) utes of limitation during the Civil 10. War. 93. Mayfleld v. Richards, 115 U. S. 96. State v. Gibson, 21 Tex. Civ. 137, 5 Sup. Ct. 1187, 29 L. Ed. 334. App. 355, 65 S. W. 690. 94. Kavanagh v. Folsom, 181 Fed. 401. 77 1218 Statutes op Limitatioiv. CHAPTEE XXIV. Adverse Possession and Eeai Actions. Section 254. Title by, under statutes. 255. Statutory provisions as to adverse possession. 256. What constitutes a disseisin under these statutes. 257. Entry or possession without color of title. 258. Occupancy where premises are not enclosed. 259. Entry and possession with color of title. 260. Executory contracts, etc., possession under. 261. Mixed possession. 262. Limits upon the operation of possession by eonstrncticHi. 263. Possession by mistake. 264. Grantor in possession. 265. Landlord and tenant. 266. Co-tenants. 267. What possession will sustain constructive possessicm. 268. How adverse possession may be proved. 269. Continuity of possession. 270. How the continuity of the possession may be broken. 271. Tacking possession. 272. Effect of bringing ejectment. 272a (1). Recovery of real property in general. Limitations applic- able. 272a (2). Actions at law in generaL 272a (3). Equitable actions. 272a (4). Partition. 272a (5). Foreclosure of mortgage or deed for security. 272a (6). Redemption from mortgage or deed for security. 272a (7). Title under forced sale. 272a (8). Establishment of lost deed. 272a (9). Enforcement of vendor's lien. 272b { 1 ) . Title to or possession of real property in general. Ae- crual of right of action. 272b (2). Nature of entry or possession. 272b ( 3 ) . Title to support action in general. 272b (4). Title under forced or judicial sale. 272b ( 5 ) . Title or right of parties to mortgage or deed as security. 272b (6). Eights of heirs and devisees. 272b (7). Tacking successive possession or right. 272b ( 8 ) . Forcible entry and detainer. 272c. Recent English decisions. Adveesb Possession and Eeal Actions. 1219 § 254. Title by, under statutes. The acquisition of the title to land by adverse user ^ is referable to and predicated upon the statutes of limitations in force in the several States, vrhich, in effect, provide that an uninterrupted occu- pancy of lands by a person who has in fact no title thereto, for a certain number of years, shall operate to extinguish the title of the true owner thereto, and vest a right to the premises absolutely in the occupier.^ The object of these statutes is to quiet the titles 1. This important and extensive topic will be found fully discussed in the following recent authorities: 1 Cyclopedia of Law and Proc, p. 908 ; Atkyns v. Horde, 3 Smith's Lead. Cas. (9th Am. ed.), pp. 1869, 1983, n. ; Gray v. . Bond, 25 Ruling Cases, 339, 344, n.; Preble v. Maine Cent. E. Co., 85 Me. 260, 2? Atl. 149, 21 L. R. A. 829, and n.; Baker v. Oak- wood, 123 N. Y. 16, 25 N. E. 312, 10 L. R. A. 887, and n.; 1 Am. and Eng. Encyc. of Law (2d ed.), p. 787; 1 Jones on Real Property, ch. 7; 1 Ab- bott's N. Y. Cyclopedic Digest, p. 216; Eiggs v. Riley, 113 Ind. 208, 15 N. E. 253, 27 Cent. L. J. 87, and n. The claimant by adverse possession does not abandon or impair his own title by purchasing an outstanding claim of title from a third person. Warren v. Bowdran, 156 Mass. 280, 31 N. E. 300. The characteristic of such title is always that it is ac- quired without the consent and against the will of the former owner. Marshall v. Taylor (1895), 1 Ch. 641, 650; Middlesex Co. v. Lane, 149 Mass. 101, 21 N. E. 238, 14 Harvard L. Rev. 149. The elder of different possessions prevails when neither party has the legal title. Reddiek v. Long, 24 Ala. 260, 37 So. 402. The statute, when a bar to a direct pro- ceeding by the original owner, cannot be defeated by indirection within the jurisdiction where it is the law. Cha- pin v. Freeland, 142 Mass. 382, 386, 8 K. E. 128, 56 Am. Eep. 701. 8. Trim v. McPherson, 47 Tenn. (7 Coldw.) 15. In Hopkins v. Callo- way, id. 37, it was held that an ad- verse possession under a conveyance from the State of North Carolina, for the statutory period, not only bars the remedy of the party out of pos- session, but vests an absolute estate in fee-simple in the party in posses- sion; but that where a, person with- out color of title occupies land for tne statutory period, so that the claimant's right is barred, such pos- session does not take away the claim- ant's right, but simply bars his rem- edy; and no subsequent action can be brought by the claimant, either at law or in equity, to question the title of the occupier. When the bar of the statute is complete, the riglit of the person entitled to its benefits is as perfect as though he was actually in- vested with the title by deed; and as against him the holder of the para- mount title cannot use it for either recovery or defense until he has de- stroyed the bar, either by purchase or limitation. Hale v. Gladfelder, 52 111. 91. In New Jersey, by statute. 1220 Statutes op Limitation. to land, and prevent that confusion relative thereto which would necessarily exist if no period was limited within which an entry upon lands could be made ; and they are believed to be of even more importance to the interests of society than those relating to per- sonal actions. The effect of these statutes generally is, not to transfer the fee to lands from the true owner to the occupier, but to destroy the remedy of the true owner for their recovery by action, and to vest an absolute right of exclusive possession in the occupier as against the true owner and all the world, and a right which is transferable and vests in his grantees a right to the lands as full and complete as could be conferred by the owner of the fee. In a word, it vests in the occupier a title to the premises by possession, which is in every respect equal to a conveyance of the fee.' But while the fee does not pass under a naked adverse possession for the requisite period yet, when a person enters into possession under color of title, and occupies adversely for the requisite period, he is treated as being clothed with the title to the premises, in fee-simple.* The title acquired in such cases is predicated upon the presumption that the party in possession is the real owner, or that the real owner has surrendered or aban- doned his claim to the premises, or he would have asserted his claim thereto within the requisite period, to save his right.^ The first statute enacted to settle the title to lands which were in the adverse occupancy of a person other than the real owner, for a long period of time, was enacted during the reign of Henry VIII., (Stat. 32 Henry VIII., c. 2). This statute fixed the petiod of occupancy requisite to quiet titles at sixty years, and was sixty years' continuous possession 3. Trim v. McPherson, 47 Tenn. (7 vests a full and complete title in the Coldw.) 15. occupier. See Appendix, New Jersey, 4. Hopkins v. Calloway 47 Tenn. see. 33. In Missouri, it is held that (7 Coldw.) 37; Hale v. Gladf elder, 52 there is no need of presuming a deed 111. 91. from possession for the statutory 5. Abell v. Harris, 11 G. & J. period, as such possession by itself (Md.) 367; Cooper v. Smith, 9 S. & alone is evidence of an estate in fee, E. (Pa.) 36. and equivalent to an absolute title. Warfield v. Lindell, 38 Mo. 561. Adveese Possession a^d Eeal 'Actions. 1221 regarded with great favor. The period was materially lessened by Stat. 21 James I., e. 27, and twenty years' adverse occu- pancy was fixed upon as sufficient to defeat the true owner's right of entry, except when he was as the time under some one of the disabilities named in the statute. In this country, the period within which a right of entry is barred is fixed by the statute of each State. In Maine, Massachusetts, ISTew Hamp- shire, New York, Alabama, Delaware, Indiana, Illinois, Minne- sota, j^orth Carolina, South Carolina, Oregon, Maryland," AViseonsin and Dakota, the period is twenty years; in Ohio, Pennsylvania and Wyoming, twenty-one years; in Vermont, Con- necticut, Michigan, Kentucky, Kansas and Virginia, fifteen years ; in Missouri, Mississippi, Nebraska, Texas, West Virginia and New Mexico, ten years ; in Florida, Tennessee, Arkansas and Utah, seven years ; and in California, Colorado, Nevada, Arizona, Idaho and Montana, five years. It will be observed that the shortest periods are adopted in the new States and the Territories, and the wisdom of this course is not doubtful. In some of the States different periods are adopted according to the character of the estate occupied, or the nature of the occupancy. Thus, in New Jersey, sixty years' possession is ordinarily necessary; but thirty years' occupancy is sufficient when the possession commences or is founded on a proprietary right duly laid thereon, and recorded in the surveyor-general's office.' In Indiana, a purchaser of lands 6. In Maryland, the statute does less the person claiming the right of not extend to any possession except entry was a minor or of unsound ■where " land shall be taken up under mind when the sale was made, and a common or special warrant, or in that case three years after the re- warrant of resurvey, escheat, or proc- moval of the disability is given; and lamation warrant." persons holding under a sheriff's or 7. In Arkansas, when the plaintiff auditor's sale for the non-payment of does not claim title to the land, and taxes, or who have redeemed the neither he nor his intestate has been same from the State auditor under in possession for five years, his right the statute, or who hold the same un- of entry is barred. Where a person der the auditor's deed, are protected, claims as, or under, a purchaser of unless the plaintiff, his ancestor, pre- lands at a judicial sale, his title can- decessor, or grantor, was seized or aot be impeached after five years, un- possessed of the lands in question 1222 Statutes op Ltmitattof. under an execution, as well as all persons claiming under him, are protected after ten years from the sale; and purchasers, etc., from executors, administrators, guardians, or commissioners, who have sold under a judgment of a competent court directing the sale, are protected, unless action is hrought within five years.* These provisions, however, do not apply to lands owned by the State or the United States, nor where the person having an adverse title to the lands is under any of the disabilities specified in the statute, and commences an action for the recovery of the lands within three years after such disabilities are removed.* within two years next before the ac- tion was commenced. 8. In Illinois, a person actually re- siding on lands for seven consecutive years, having a connected title in law or equity, deducible of record from the State or the United States, or from any public officer or person au- thorized to sell the same, is protected against all claims of title upon which action is not brought within that period; and where a person is in the actual possession of lands under color of title, made in good faith for seven consecutive years, and during such period pays all taxes assessed there- on, he is adjudged the legal owner of such lands to the extent and accord- ing to the purport of his paper title; and the same provision exists in fa- vor of a person having color of title made in good faith to vacant and un- occupied lands, who during the pe- riod of seven years pays the taxes thereon, unless some person having a better title within that time pays the taxes thereon assessed for one or more years during such period. 9. So long as the title to public land is in the United States, no ad- verse possession of it can, under a State statute of limitations, confer a title which will prevail in a Federal court against the legal title under a patent from the United States. Red- field V. Parks, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 337. Hence, be- tween rival individual claimants of land acquired from the general gov- ernment, the statute of limitations does not begin to run in favor of an adverse claimant in possession, until the entryman becomes entitled to a patent, by a full compliance with the law. Ibid.; Stephens v. Moore, 116 Ala. 397, 23 So. 543; Denver & R. G. R. Co. V. Wilson, 28 Colo. 6, 63 Pac. 843. As to acquiring minerals and mining lands by adverse occupancy, see Risch v. Wiseman, 36 Oregon, 484, 59 Pac. 1111, 78 Am. St. Rep. 7^3; Wood V. Etiwanda Water Co., 123 Colo. 52, 54 Pac. 726; 1 Am. and Eng. Encyc. of Law (2d ed.), p. 874; Houser v. Christian, 108 Ga. 489, 34 S. E. 126, 75 Am. St. Rep. 72. " Prescription or a statute of limi- tations may give a good title against the world and destroy all manner of outstanding claims without any no- tice or judicial proceeding at all. Time and the chance which it gives the owner to find out that he is in danger of losing rights are due pro- Adveese Possession and Eeal Actions. 1223 In Kentucky, possession for seven years under a title of record from the Commonwealth vests the title in the occupier against all adverse claimants under or by virtue of interfering surveys or patents, except where the claimant at the time a cause of action accrued was under some one of the disabilities named in the statute. In Kansas, an action for the recovery of land sold for taxes is barred in two years from the time when the deed is eess of law." Holmes, Ch. J., in Tyler T. Court of Eegistration, 175 Mass. 71, 73, citing Wheeler v. Jackson, 137 V. S. 245, 258, 11 Sup. Ct. 76, 34 L. Ed. 659. " Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings concerning land. In Arndt v. Griggs, 134 U. S. 316, 337, 10 Sup. Ct. 557, 33 L. Ed. 918, it is said to be estab- lished that ' a State has power by statute to provide for the adjudica- tion of titles to real estate within its limits as against nonresidents who are brought into court only by publi- cation.' In Hamilton v. Brown, 161 V. S. 256, 274, 16 Sup. Ct. 585, 40 L. Ed. 691, it was declared to be within the power of a State 'to provide for determining and quieting the title to real estate within the limits of the State and within the jurisdiction of the court, after actual notice to all known claimants, and notice by pub- lication to all other persons.' i doubt whether the court will not take the further step when necessary, and declare the power of the States to do the same thing after notice by publication alone." Holmes, C. J., in Tyler v. Court of Eegistration, supra, p. 75, citing Huling v. Kaw Valley R. & Impr. Co., 130 U. S. 559, 564, 9 Sup. Ct. 603, 32 L. Ed., 1045; Par- ker V. Overman, 59 U. S. (18 Hovv.)' 137, 140, 15 L. Ed. 318. In Tyler v. Court of Registration, supra, Lath- rop, J., says (p. 92), in his dissent- ing opinion : " The reference made in the opinion of the majority of the court to the statute of limitations makes it necessary to state in pass- ing that the registration act cannot be supported on the grounds on which the statute of limitations quiets titles against all the world, or on any grounds deducible therefrom. It is unquestionably within the con- stitutional power of the legislature to quiet the title to property by a, statute of limitations. The principle of such a statute is that one, who is dispossessed of his property, must as- sert his ownership thereto by action within a specified time or be barred thereof; that is to say, cease to be such owner. But no statute was ever passed providing that an owner in possession of his property could be dispossessed thereof by any lapse of time, and no principle is deducible from the statute of limitations, which can justify such a statute, or a statute providing that, without naming him as a defendant, or with- out giving him notice, a court can by decree alone, unaided by the subse- quent lapse of time, transfer his prop- erty to another." 1224 Statutes of Limitation. recorded, for lands sold on execution within five years from the recording of the deed, and for lands sold by executors, adminis- trators, or guardians, within three years from the time when the deed is recorded; in all other cases within fifteen years from the time when the right of action or entry accrued. In Worth Caro- lina, the State is barred when a person has been in the adverse occupancy of lands belonging to it under visible lines or bound- aries, for thirty years. Where a person has been in the posses- sion of lands with visible lines and boundaries under colorable title for seven years, such possession is a perpetual bar against all persons except such as are under some one of the statutory disabilities, and railroad, turnpike, or canal companies. In all other cases twenty years' occupancy under known or visible boundaries is a bar. In South Carolina, the State is barred in forty years, where, during that period, it has not received any rent for, or profits from, the land. In Michigan, where the title to land is claimed by or through some deed made by an executor, administrator, guardian, sheriff, or other proper ministerial officer under the order, decree, or process of a competent court, five years' occupancy under such deed constitutes a bar against all persons claiming title thereto; and an occupancy of ten years under a deed made by some officer of the State or of the United States authorized to make deeds upon the sale of land for taxes as- sessed thereon and levied within the State, makes a complete bar; but in all other cases fifteen years' occupancy is necessary. In Nevada, a person in possession of mining claims, and working the same in the usual and customary manner is protected by two years' possession. In Tennessee, a continuous adverse possession for twenty years of lands, held under a conveyance from hus- band and wife executed upon valuable consideration withouti fraud upon the wife, and registered more than twenty years before any suit commenced, is an absolute bar to the husband and wife and all persons claiming title by or through them.^" In 10. Tennessee Code (1896, by Shan- non), § 4460. Adverse Possession and Real Actions. 1225; Texas, a person holding peaceable and adverse possession o:^ land, cultivating, using or enjoying thq same for five years, pay- ing the taxes, and claiming under a deed duly registered, is pro- tected, unless the deed was forged or executed under a forged power of attorney ; ^^ in other cases ten years' possession is neces- sary; but where a person has had peaceable and uninterrupted possession of lands for three years under title or color of title, as defined by section 3341, such possession constitutes a complete bar. In Virginia, a distinction is made between lands lying on the east side of the Allegheny mountains and those upon the west side. As to the former, fifteen years' possession is required ; as to the latter, only ten years' possession is necessary. In some of the States, a distinction is made as to the quality of the estate acquired, where the occupant enters and holds under a color of title, and where he merely holds by naked possession. So, too, in several States a distinction" ia made between the character of occupancy required in the two cases; but it will be unnecessary to refer to that matter at length in this place, as this distinction will be developed in another part of this chapter. § 255. Statutory provisions as to adverse possession. In New York, for the purpose of constituting adverse possession' under a claim of title founded upon a written instrument, the premises are deemed to have been possessed and occupied in either of the following cases: First, where it has been usually cultivated and improved ; second, where it has been protected by a substantial enclosure; and third, where, although not enclosed, it has been used for supply of fuel, or of fencing timber for the purposes of husbandry, or for the ordinary use of the occupant. And where a knovra farm or a single lot has been partly improved, the other portion, if used according to the usual course and cus- tom of the adjoining country, is treated as within the ' posses- sion of such occupant. Under this statute it is held that the 11. Texas Civ. Stats. (1913), §S 5673-5675 (3340-3343). 1226 Statutes of Limitatioit. occupancy need not be tinder a valid deed, but that if the deed covers the land, and there has been an occupancy under it for the requisite period, although the person executing the deed has no authority to do so, it is suiEcient.-'^ Substantially the same provision exists in the statutes of Florida, South Carolina, Cali- fornia, Wisconsin, Nevada, Arizona, Dakota, Idaho, Montana, and Utah. In ISTew York and in all these States,^^ it is also pro- vided that where a person claims title not founded on a written instrument, judgment, or decree, such land shall be deemed to have been occupied and possessed, first, where it has been pro- tected by a substantial fence ; and, second, where it has been usuallj' cultivated and improved. Under these statutes, specifically defining what possession shall be regarded as adverse, the possession, in order to be operative- must be shown to be by some one of the modes stated in the statute, or it will be no protection, however long such possession may have been continued." Under these' statutes, in order to acquire a title by possession on account of an enclosure, the 12, Bishop's Ann. Code (4th ed. to justify an inference of knowledge 1895), §§ 3&9-37a; Hilton v. Bender, on. the part of the tenant sought to S Hun (N. Y.) 1. be ousted, and of laches if he fails It is not enough in New York to to discover and assert his rights. Cul- claim title, but the defendant must ver v. Rhodes, 87 N. Y. 348. Equity claim under some specific title, and will prevent a threatened cloud on this must be disclosed so that the title when there is a determination court may see that it is adverse to to create such cloud, and a real dan- that of the grantor in the deed assail- ger. King v. Townshend, 141 N. Y. ed. Dawley v. Brown, 79 N. Y. 390, 358, 36 N. E. 513. 396; Heller v. Cohen, 154 N. Y. ^99, 13. Wisconsin Stats., § 4212. But 48 N. E. 527. See Knellar v. Lang, in this State, where the possession is 137 N. Y. 589, 33 N. E. 555 ; Sanders under a written titlfe, or upon a judg- V. Eeidinger, 43 N. Y. Supp. 127; He ment, ten years' occupancy in this St. Laurent v. Gescheidt, 45 N. Y. manner constitutes a bar; but in all Supp. 730. In the case of co-tenaiits, other cases twenty years' occupancy if no explicit notice is given of the is required. denial of the right of one, the occu- 14. East Hampton v. Kirk, 68 N. pant must make his possession so Y. 459 ; Cleveland v. Crawford, 7 visibly hostile and notorious, and so Hun (N. Y.) 616. apparently exclusive and adverse, as Adverse Possession aitd Eeai- Actions. 1227 party claiming must show that he has maintained during the requisite period a substantial enclosure and an actual occupancy, definite, positive, and notorious ;^^ and merely keeping up a fence already built by a neighbor does not constitute a sufficient en- closure, within the statute.^^ If cultivation and improvement are relied upon to give title, both must be shown; and merely reaping, of itself, is not cultivation; nor does the mowing of grass or the cutting of brush alone amount to an improvement, within the meaning of the statute." Where land is entered upon under a claim of, but without written title, there must be a pedis possessio, or an enclosure. But this does not necessarily contem- plate an artificial fence. If the possession is actual, visible, exclu- sive, and notorious, so far as the actual occupancy extends by actual cultivation and improvement for the ordinary purposes of agriculture for the requisite period, a title may be acquired, but cannot, as in the case of an actual fence or color of title, be extended by construction to embrace lands not so actually culti- vated and improved.^^ Occasionally taking wood and timber from a wood-lot, or using it for a pasture, does not amount to cultiva- tion and improvement, within the meaning of the statute, so as to give title by possession, in the absence of an enclosure. § 256. What constitutes a disseisin under these statutes. Except where the statute defines the species of possession which 15. Jackson v. Schoonmaker, 3 18. Becker v. Van Valkenburgh, 29 Johns. (N. Y.) 330; McFarlane v. Barb. (N. Y.) 319; Jackson v. Hal- Kerr, 10 Bosw. (N. Y.) 249. stead, 5 Cow. (N. Y.) 216; Jackson 16. Doolittle V. Tice, 41 Barb. (N. v. Camp, 1 id. SOS; Sbarp v. Bran- Y.) 181. Where a lot was inclosed dow, 15 Wend. (N. Y.) 597; Jackson on one side by a highway, on two v. Woodruff, 1 Cow. (N. Y. ) 276. In sides by a fence, and on the other side Pope v. Hanmer, 8 Hun (N. Y.) 365, by a distinct line of marked trees ex- these questions were fully considered, tending from corner stake to corner reference being specially made to the stake, it was held that the lot was Code, §§ 369, 372; Doolittle v. Tice, not protected by a substantial inclos- 41 Barb. (N. Y.) 181; Hallas t. Bell, ure, within the meaning of the Oode. 53 id. 247; Lane v. Gould, 10 id. 254; Pope V. Hanmer, 8 Hun (N. Y.) 265. Jackson v. Woodruff, 1 Cow. (N. Y.) 17. Doolittle V. Tice, supra. 276; Crary v. Goodman, 22 N. Y. 170. 1228 Statutes of Limitation. shall be regarded as adverse, so as to bar a right of entry, the question is left for settlement by the courts, in view of the lan- guage of the statute under which the question arises. In Maine, ^' the language of the statute is, " No person shall commence any real or mixed action for the recovery of lands, or make an en- try thereon, unless within twenty years after the right to do so first accrued; or within twenty years after he, or those under whom he claims, were seised or possessed of the premises;"^" and this is practically the provision in Vermont, New Hamp- shire, Connecticut, Massachusetts, Arkansas, Delaware,^^ Illinois, Mississippi,^^ Minnesota, North Carolina, Ohio,^^ Oregon, Michi- gan,^* Nebraska, Tennessee, Virginia, West Virginia, New Mexico, 19. Rev. stats. (1883), ch. 105, § 1. 20. This provision does not apply to an action of dower which is not barred until twenty years and one month after demand. Chase v. Alley, 83 Me. 334, 19 Atl. 397; Hastings v. Mace, 157 Mass. 499, 33 N. E. 668; Robie V. Flanders, 33 N. H. 534; Munroe v. Wilson, 68 id. 580: Long V. Kansas City Stock Yards Co., 107 Mo. 398, 17 S. W. 656. 21. In Indiana, the statute provides " for the recovery of the possession of real estate twenty years," which is practically the same, as under this statute the right of action does not accrue until there has been a disseis- in. 1 Ind. Stats. (1894, by Burns), § 394, Ch. 6. This limitation ap- plies to an action for breach of the covenant of warranty in a deed. Hy- att V. Mattingly, 68 Ind. 271. Color of title not being necessary to an ad- verse possession, it is sufficient if there is, for the prescribed period, assertion of ownership and unbroken possession. CoUett v. Commission- ers, 119 Ind. 27; 31 N. E. 329, 4 L. E. A. 321; Herff v. Griggs, 121 Ind. 471, 33 N. E. 379. In Kentucky, the provision is, " An action for the re- covery of real property can only be brought within fifteen years after the right to institute it first accrued." Ky. Stats. (1899, by Carroll), § 280'5. 22. In this State the language is not the same, but its effect is identi- cal, and the statute in this respect is expressly applied to courts of equity as well as courts of law. Code (1893), §§ 2730, 3731. In this State, as elsewhere, a claim of title under a parol gift or pur- chase, accomipanied by entry and ad- verse holding, may ripen into an in- defeasible title by the lapse of the statutory period of limitations. Davis V. Davis. 68 Miss. 478, 10 So. 70. 23. In this State the language is, " An action for the recovery of the title or possession of real property can only be brought within twenty- one years after the cause of such ac- tion accrues." Sec. 4977. 24. In this State the statute spe- cifies when the right of action shall be treated as having accrued; but the provisions in this respect do not vary Adverse Possession and Eeal Actions. 1229 and Wyoming. The language of the statute in all of these States is not identical with that of the Maine statute, nor is the period of limitation; but the practical effect is the same, and in none of them is there any provision as to what shall be deemed an adverse possession sufficient to bar a suit or entry. From this summary of the statutes it will be observed that the statute will not commence to run until a cause of action has arisen in favor of the person having the rightful title; in other words, until he has been disseised by the person in possession or those in privity with him in the possession. And a person who enters upon the land of another, with the intention of usurping the possession, and carries that intention into effect by retaining the exclusive possession of the premises, actually disseises the owner f^ and this is so whether the entry and possession are contrary to the will of the ovmer or not, because, as we shall see hereafter, it is immaterial whether the owner knows of the disseisin or not f^ nor is it necessary that the entry should be wrongful, because, although a person enters lawfully, yet if, after entry, he calls tlie owner's title in question, and claims the land as his own, or usurps dominion over it, either by words or acts, he is a dis- seisor f and if suffered to remain in possession under such circum- stances, without entry or action by the owner, for the requisite statutory period, he acquires a title thereto by possession. But where the possession commences by the permission of the owner, there can be no disseisin or adverse possession until there has been a disclaimer by the assertion of an adverse title, and notice thereof, either actual or constructive.^ There are two kinds essentially from those which exist 27. Walker v. Wilson, 4 N. H. 217 where no such provisions are made. 28. Hudson v. Putney, 14 W. Va Compiled Laws (1897), § 9714 et 461; Foulke v. Bond, 41 X. J. L. 527 seq. See Legg v. Horn, 45 Conn. 415 25. Towle V. Ayer, 8 N". H. 57 ; Mel- Wiseman v. Lucksing«r, 84 N. Y. 31 vin V. Proprietors, 46 Mass. (5 Met.) Ooleman v. Pickett, 31 N". Y. S. 480 15; Co. Litt. 279. Morse v. Sherman, 155 Mass. 222, 29 26. Brown v. King, 46 Mass. (5 N. E. 523; Prescott v. Prescott, 175 Met.) 173; Poignard v. Smith, 23 Mass. 64, 66, 55 N. E. 805; Bond v. Mass. (6 Pick.) 172. O'Gara, 177 Mass. 139, 58 N. E. 275, 1230 Statutes of Limitatiok. of disseisin: one a disseisin in fact, and the other a disseisin by eleetion.^^ A disseisin in fact is one whereby the original owner is divested of his seisin, and of all right in relation thereto, except his right of entry and of property, or of action for its recovery. A disseisin by election is when an act is done upon or in relation to lands, which is equivocal, and may be treated either as a trespass or a disseisin according to the intention with which it was done, in which case the law will not permit the wrong-doer to qualify his own wrong, and claim it to be a mere trespass, unless the owner elects to so regard it.^" It frequently occurs that the courts fail to observe the proper distinction be- tween these two classes of disseisins; but for the purposes of the application of the statute, and ascertaining the period from which it begins to run, this distinction is important, and quite apparent, because there can be no disseisin in fact, except by the wrongful entry of a person claiming the freehold, and an actual ouster or expulsion of the true owner, or by some other act which 83 Am. St. Rep. 365; Coflfrin v. Cole, Co. v. Bilot, 109 Wis. 418, 85 N. W. 67 Vt. 226; Great Falls W. W. Co. 402, 406, 83 Am. St. Rep. 905; Heer- V. Gt. Northern Ry. Co., 21 Mont, mans v. Schmaltz, 10 Biss (U. S.) 487; Thoemke V. Fiedler, 91 Wis. 386; 333, 7 Fed. 565. The fact that such Yeager v. Woodruff, 17 Utah 361, 53 owner is absent from home, and does. Pac. 1045. In the absence of evi- not see or know of the claimant's dence of what claim the original en- hostile acts, is immaterial. Talbott try was made under, it is always pre- v. Woodford, 48 W. Va. 499, 37 S. E. sumed to have been made in subordi- 580. As to the notoriety required to nation to the legal title. Sanders v. support a claim by adverse user, see Riedinger, 51 N. Y. S. 937, 940 aff'd Gould on Waters, § 337; De Frieze 164 N. Y. 564, 58 N. E. 1092; Lucy v. Quint, 94 Gal. 653, 28 Am. St. Rep. V. Tenn. & Coosa R. Co., 92 Ala. 346, 151, and n. 350. An entry so made is presumed 29. This species of disseisin is rec- to continue subordinate to the legal ognized in Atkyns v. Horde, 2 Cowp. title until notice is by some means 689, also in 2 Inst. 413. But it seems brought home to the original owner, that, in order to enable the owner to Ross V. Veech, 23 Ky. Lew Rep. 578, elect to treat an act as a disseisn, the 58 S. W. 475; Whieney v. Wheeler entry must be injuste et sine judicio. Cotton Mills, 151 Mass. 396, 407, 34 30. Prescott v. Nevera, 4 Mas. (U. N. E. 774, 7 L. R. A. 613. And all S.) 336; Blunden v. Baugh, Cro. Car. presumptions are prima facie in fav- 303. or of the true owner. Illinois Steel Adveese PossEssioiif AND Eeal, Actions. ' 1231 is tantamount thereto f^ and the claim or color of title must exist at the commencement, and any other entry is a mere trespass;'^ and the person who is put out of possession may maintain eject- ment or trespass against the wrong-doer, at his election.^^ Of course, where the statute defines the species of possession requi- site to bar the claim of the true owner, for the purposes of this statute, such a possession only will amount to a disseisin. There are loose dicta in the c^ses upon this question where the statute does not define the species of possession required, and many mis- statements of the true doctrine or rules that control in determin- ing whether there has been a disseisin and a sufficient adverse possession to divest the true owner of his title to lands, and as to the character of the possession requisite to work this result. But the whole matter hinges upon the circumstance whether there has been a disseisin in fact, and an actual expulsion of the true owner for the full statutory period; and in all cases where there has been, the possession is adverse, and the true owner is barred, both as to his right of entry upon, and his remedy for the recovery of, the land; and this has been held to be the case under these statutes in Connecticut and Michigan, where the original entry is wrongful, although the person entering does not claim title in himself, or deny the title of the legal ovraer if he usurps dominion over the land at the time of entry, and uses and occupies it excu- sively and continuously as his own for the requisite statutory period, as in such a case, as in instances where there is entry under a conveyance, the law presumes that the holding was adverse, where the possession is accompanied with acts which are the usual insignia of ownership.^* In other words, any entry 31. Varick v. Jackson, 2 Wend. (N. Jackson v. Harder, 4 Johns. (N. Y.) y.) 166. 302. 32. Co. Litt. 153 i; 4 Bouvier's 34. IngersoU, J., in Bryan v. At- Law Die. 558. water, 5 Day (Conn.) 181; French 33. Wheeler v. Bates, 21 N. H. v. Pearce, 8 Conn. 442. In Bryan v. 640; Bateman v. Allen, Cro. Eliz. 437 Allen V. Rivington, 2 Saund. Ill Clute V. Voris, 31 Barb. (N. Y.) 511 Atwater, supra, an adverse posses- sion is defined by IngersoU, J., to be " » possession not under the legal 1232 Statutes of Limitation. upon lands without the consent of the true owner, and continuous occupancy thereof by the person entering, as his own, which excludes the possession, actual or constructive, of such o^vner, for the full statutory period, is held by the courts of the States named to be adverse, within the meaning of the statute, and divests the legal owner of all right to such lands, whether such entry was made under a claim of title or not.^^ This doctrine is in strict accordance with the definition of a disseisin given by Littleton.^" " A disseisin," saye he, " is where a man entereth into any lands or tenements where his entrance is not congeable, and ousteth him who has the freehold;" and of Coke, who says:"' " A disseisin is the putting a man out of possession, and ever implieth a wrong. But dispossession or ejectment is a putting out of possession, and may be by right or by wrong." ^* Under this definition it would seem to follow that, if the entry was made by the permission of the owner, possession, however long con- proprietor, but entered into without his w. (K Y.) 605. See Stoiy, J.: " No ouster can be presumed in favor of such a possession." Society v. Pawlet, 29 U. S. (4 Pet.) 480. 50. Gay v. Mitchell, 35 Ga. 139. See Link v. Doerfer, 42 -Wis. 391, where it is intimated that a person so possessing land may subject the tenant to some form of action for the profits. But this is mere oMter. 51. Blackwood v. Van Vleit, 30 Mich. 118; Bowman v. Cockrill, 6 Kan. 311; Blakeley v. Bestor, 13 111. 708; Moss V. Shear, S.5 Cal. 38; Link V. Doerfer, 42 Wis. 407; Hamilton v. Wright, 30 Iowa 480; Stubblefield v. Borders, 92 111. 279. 52. Jackson v. Porter, 1 Paine (U. S. ) 457; Bartholomew v. Edwards, 1 Houst. (Del.) 17. In Campau v. Dubois, 39 Mich. 274, it was held that no claim of title is necessary to perfect a title by adverse holding. Adveese PossESSioiir anb Real Actions. 1237 out occupaney,^^ nor a mere occupancy without an intent to claim title, are sufficient.^^ " It is not the possession alone," says Thomp- son, J.,^^ " but that it is accompanied with the claim of the fee, which, by construction of law, is deemed prima facie evidence of such an estate." The intention need not be expressed, but may be inferred from the manner of occupancy f^ and in one case, where the possession was shown to have been in fact adverse, it was held that the statute barred an entry after the lapse of the requisite period, although the occupant practiced deceit, and lulled the owner into the belief that he did not intend to claim adversely. ^^ § 257. Entry or possession without color of title. It is well settled that, when a person relies upon naked posses- sion as the foundation for an adverse claim, there must be a pedis possessio, or an actual occupancy, and the possession cannot be extended by construction beyond the limits of his actual occupa- tion;^^ and it must not only be actual, but also visible, continn- 53. Abell V. Harris, 11 G. & J. (Md.) 637; Cooper v. Smith, 9 S. & R. (Pa.) 26. 54. Brown v. Gay, 3 Me. ia6; Al- len V. Holton, 37 Mass. (20 Pick.) 458; Betts V. Brown, 3 Mo. App. 20; M'cNamara v. Seaton, 82 111. 498; Skinner v. Crawford, 54 Iowa 119. 55. Jackson v. Porter, 1 Paine (U. S.) 457. 56. Conyers v. Kenan, 4 Ga. 308. 57. Strange v. Durham, 1 Brev. (S. C.) 83; and see Patterson v. Reigle, 4 Pa. 301. In Pennsylvania, it is held that, where an entry is made without the permission of the owner, the possession is presumed to be ad- verse, until the contrary is shown. Neel V. McElhenny, 69 Pa. 300. As to mistake in boundary lines, see 6 Harvard L. Rev. 385. When possession is to be inferred from equivocal acts, the intention with which they are done is all important. See Leigh v. Jack, 5 Ex. D. 264 ; Lit- tledale v. Liverpool College [1900], 1 ch. 19. The mere user of land, with- out claiming it, and under the belief that the real owner does own it, is not adverse. Pearson v. Adams, 129 (Ala.) 157, 29 So. 977. 58. Ooburn v. Hollis, 44 Mass. (3 Met.) 125; Jackson v. Hardenburgh, 2 Johns. (N. Y.) 234; Hale v. Glid- den, 10 N. H. 397; Ferguson v. Peden, 33 Ark. 150; Wilson v. McEwan, 7 Oreg. 87; Schneider v. Botsch, 90 111. 577; Petersen! v. McCullough, 50 Ind. 35; Wells V. Jackson Manuf. Co., 48 N. H. 491. In Alabama, the title in such cases is restricted to lands in- closed and under cultivation. Haw- kins V. Hawkins, 45 Ala. 482; Ege v. Medlar, 82 Pa. 86; Clarke v. Wag- ner, 74 N. g. 791; Bristol v. Carroll County, 95 111. 84; Humphries v. 1238 Statutes of LiMiTATioif. OTIS, notorious, distinct, and hostile,^' and of such a character as to indicate exclusive ownership in the occupant.^" ' N"o definite rule as to what constitutes sufficient possessory acts can be given, as the matter must necessarily depend largely upon the nature and character of the property, and must be determined from the circumstances of each case, and is for the jury. A substantial fence erected around land is a sufficient evidence of disseisin,^^ and the limit and extent of the occupant's claims; but the fence must be substantial, and a brush fence,*^ or a fence made merely by lapping trees one upon another,^^ — although the person claim- Huffman, 33 Ohio St. 333; Foster v. Letz, 86 111. 412. Where a person acquires a title by naked occupancy upon a river, his title cannot be ex- tended by construction to the centre of the river. Riley v. Jameson, 3 N. H. 23; Coming v. Troy Iron Co., 34 Barb. (N. Y.) 539. But a person may so use the river as to acquire title to the land lying under it. Wickes v. Lake, 35 Wis. 71. But in Hawkins v. Hudson, 45 Ala. 483, where a person went into possession of land under a parol gift, and actu- ally occupied only a part of the lot, it was held that his title could not be extended beyond his actual occu- pancy, as against a hona fide pur- chaser from the owner of the legal estate. A person going into posses- sion without color of title, but as a mere intruder, acquires possession " inch by inch " of the part which he occupies, and he cannot extend his title beyond his actual occupation for any distance. Prescptt v. Johnson, 9 Martin (La.) 133; Brooks v. Clay, 10 Ky. (3 A. K. Mar.) 545. See Miller V. Shaw, 7 S. & E. (Pa.) 143; Eoyer v. Benlow, 10 S. & R. (Pa.) 303. 59. In Sparrow v. Hovey, 44 Mich. 63, a refusal of the court to charge that when title is claimed by an ad- verse possession it should appear that the possession had been " actual, con- tinued, visible, notorious, distinct, and hostile," but merely charging the jury that the possession " must be actual, continued, and visible," was held er- roneous, although in fact the posses- sion was held under a tax title which rendered it necessarily hostile to the owner of the original title. 60. Soule V. Barlow, 49 Vt. 339. 61. Ringold v. Cheney, 4 Hall's L. J. (Md.) 128; Miller v. Shaw, 7 S. & R. (Pa.) 129; Munshower v. Pat- tan, 10 id. 334; Hawk v. Senseman, 6 id. 21; Burns v. Swift, 3 id. 436; Mercer v. Watson, 1 Watts (Pa.) 330; Smith v. Hosmer, 7 N. H. 436. If a person enters under a deed, and fences in more land than his deed covers, he will hold tlie whole if he keeps up the fence for the full statu- tory period. Levettenham v. Leary, 18 Hun (N. Y.) 384. 62. Hale v. Glidden, 10 N. H. 397. 63. Coburn v. Hollis, 44 Mass. (3 Met.) 135; Parker v. Parker, 83 Mass (1 Allen 245; Slater v. Jepher- son, 60 Mass. (6 Cush.) 129; Jack- son V. Sehoonmaker, 2 Johns. (N. Y. ) 230. Adveese Possession aitd Eeal Actions. 1239 ing the land occasionally entered upon it and cut wood and timber/* and sold a part of the land, — have been held not suffi- cient to continue a disseisin, although done with the knowledge of the owner.^^ A fence erected merely for convenience in work- ing a farm, and not for the purpose of making the boundaries according to the title, is of no weight in determining acts of possession."^ A fence must not only be substantial, but it must also extend around the whole lot, and one built only on three sides of it has been held insufficient;^'' but the rule would be otherwise where upon one side there is a natural substitute for a fence, as a ledge of rocks,^^ or other natural obstruction that renders a fence unnecessary, and in connection with the fence actually constructed forms a sufficient boundary and indicia or badge of ownership of the lot claimed. The rule is that where an enclosure consisting partly of natural and partly of artificial obstructions is relied upon as in itself establishing a possessio pedis, it is for the jury, upon all the proofs, and considering the quantity, locality, and character of the land, to decide whether the artificial barriers were sufficient to notify the public that the land was appropriated, and to impart to the appropriation the notoriety and indicia of ownership.''^ Where land was enclosed by a river and a fence and road, and a disseisor occupied as near it as was convenient, it was held that this might be, if so intended by the occupant, a possession of the whole lot, although there was a narrow strip uncultivated.™ 64. Hale v. Glidden, supra; Slater lot inclosed, did not constitute a dis- V. Jepherson, supra. seisin. 65. Slater v. Jepherson, supra; 67. Armstrong v. Risteau, 5 Md. Parker v. Parker, supra. a56. But see Dennett v. Crocker, 8 66. Soule V. Barlow, 49 Vt. 329. In Me. 239; Pope v. Hanmer, 74 N. Y. Allen V. Holton, 43 Mass. (26 Pick.) 240. 458, it was held that the building of 68. St. Louis v. Gorman, 29 Mo.j a fence upon a part of another's land, 593. •for the purpose of protecting his 89. Brumagim v. Bradshaw, 39 crops, and with no intention to ex- Cal. 24. elude the owner from the lot, al- 70. Allen v. Holton, 37 Mass. (20 though the person building it oeca- Pick.) 458. And where land was eionalljr cut wood and brush from the claimed by actual possession ajid in- 12i0 Statutes of Limitation. Where the party relies upon a fence to establish his title to land; ho cannot extend his possession beyond its limits,'^ except by an actual occupancy of the land outside of the limits of the fence for the full statutory period.''^ Unless expressly made so by closure by a fence, and was bounded on one side by a pond and on the other by lands owned by the claimant, it was held that although his fences did not surround the land in ques- tion on all sides except that next to the pond, yet it was proper to submit the facts to the jury to determine whether they were erected for the purpose of inclosing the land in con- troversy, or merely for the protection of his own land. Dennett v. Croclcer, 8 Me. 239. See also Souk v. Barlow, supra. 71. Ringold v. Cheney, supra; Hall V. Gittings, a H. & J. (Md.) 380; Goewey v. Urig, 8 III. 238. 72. In Hull V. Gittings, supra, where a claimant to land, who had inclosed a hundred acres of land and cultivated it for fifteen years, subse- quently inclosed fifty acres additional, and occupied it in connection witli the other for six years, it was held that he only had title to the hundred acres. Adverse possession is made out by the coexistence of two distinct ingredients: the first, such a title as will afford color; and, second, such possession under it as will be adverse to the right of the true owner; and whether these two essemtials exist is in all cases, a question of law, to be determined by the court, though the facts upon which they are found- ed are for the finding of the jury. Baker v. Swan, 32 Md. 355. Wiekes V. Lake, 25 Wis. 71. To defeat an action of ejectment, the possession must have been an open, notorious, and continuous occupancy of the land, or some part thereof, under color of title to the whole, and must be taken in good faith under a claim adverse to plaintiff and those from whom he derives title. Turner v. Hall, 60 Mo. 271; and must be such as operates as a notice of the claim of title to all parties. Wilder v. Clough, 55 N. H. 359. Under this rule, to prevent the estahlislunent of a right to maintain across one lot of land a drain leading from another lot, by adverse use con- tinued for twenty years, the testi- mony of a person who within that time owned the first lot is admissi- ble; and that during the time he owned it, and with ample opportuni- ties, if visible, he never knew of the existence of the drain. Hannefln v. Blake, 102 Mass. 297. A claim of title based on continuous possession is not impaired by occasional occu- pancy by persons not distinctly shown to be in under the claimant if the same is not positively proved to have been adverse, nor the claim at any time to have been abandoned. Rayner V. Lee, 20 Mich. 384. Compare Whalley V. Small, 29 Iowa 288. The building of a shed, quarrying rock, erecting a. limekiln, and cutting wood, to burn it for the purpose of making lime on the land in dispute, continued un- interruptedly for more than seven years, constitute such a possession as will give a good title to the person claiming adversely under it. Moore Adveesb Possession and Eeal Actions. 1241: statute, the mere circumstance that a person erected a fence around a lot, however substantial, is not of itself sufficient evi- dence of exclusive occupation; it must also be shown that the person claiming not only held the land adversely, but also that he had the exclusive occupation of the land surrounded by the fence for the entire statutory period.'^ V. Thompson, 69 N. C. 130. It is for the jury to say whether one who does acts of ownership upon wild land, and afterwards buys it, was in possession before his conveyance, and under the grantor or adverse to him, possession at that time under color of the gran- tor's title being necessary to support a plea of the statute, and the grantor never having been personally in pos- session, the land being wild, and his claim a tax title. Wiggins v. HoUcy, 11 Ind. 2. An exclusive possession and occupancy for ten years, under a claim of absolute title, and where there is no adverse showing, is suf- ficient evidence for a, jury to infer a title in fee simple in the occupant, on an appeal from the appraiseiment and assessment of county commission- ers, of land taken for a railroad. Gulf R. R. Oo. V. Owen, 8 Kan. 409. The acceptance of a lease from the owner of the title interrupts the running of limitation. Under a lease, during the term there can be no adverse posses- sion by the tenant, unless by some act creating an adverse possession if done by a tenant who entered under a lease. Abbey Homestead Assoc, v. Willard, 48 Cal. 614. 73. See Russell v. Davis, 38 Conn. 563; Walsh v. Hill, 41 Cal. 571. The evidence necessary to prove ad- verse possession varies with the char- acter of the land. Bowen v. Guild, 130 Mass. 121, infra, § 367. A title to land by disseisin and adverse pos- session up to the line of an ancient fence is evidence of title to that line. Holloran v. HoUoran, 149 Mass. 29 S, 21 N. E. 374; Houghton v. Wilhelmy, 157 Mass. 521, 33 N. E. 861; Beck- man V. Davidson, 163 Mass. 347, 39 K E. 38; Northern Counties Inv. Trust V. Enyard, 24 (Wash.) 366, 64 Pac. 516; Pittsburg, etc., R. Co. v. Stiekley (2d), 58 N. J. 192; Bell v. Whitehead (Tenn. Ch. App.) 63 S. W. 213 ; Daughtrey v. New York & T. Land Co. (Tex. Civ. App.) 61 S. W. 947. See McAvoy v. Cassidy, 8 Misc. Rep. 595, 29 N. Y. S. 321. No particular kind of inclosure is re- quisite; the boundaries may be arti- ficial in part and natural in part, if the circumstances clearly indicate that it marks the bounds of the ad- verse occupancy. Trustees v. Kirk, 84 N. Y. 315; Illinois Steel Co. v. Bilot, 109 (Wis.) 418, 85 N. W. 403, 406, 83 Am. St. Rep. 905; Polk v. Beaumont Pasture Co. (Tex. Civ. App.) 64 S. W. 58. Thus, the claim need not be evidenced by fencing on every side; a natural boundary, like a stream, will sufiice on one side, if the other sides are inclosed. Sanders V. Riedinger, 30 App. Div. 277, 51 N. Y. S. 937, aff'd 164 N. Y. 564, 58 N. E. 1092. But the building of a temporary or inadequate fence, not fitted or intended to inclose the land in dispute, so as to exclude its free. 1242 Statutes ob- Limitation. § 258. Occupancy where premises are not enclosed. As previously stated, the question whether an alleged possession is marked by the characteristics requisite to make it adverse, and the foundation for a title by occupancy, is not wholly a question of law, and is a question for the jury, under proper instructions from the court.'* The question as to what constitutes adverse unlimited use by the owner or others, nor to utilize the land within it for any practical purpose, is not such an " inclosure " as the law contemplates. Helton V. Strubbe, 23 Ky. Law Rep. 1919, 62 S. W. 12. 74. Webb v. Richardson, 42 Vt. 465. Lord Mansfield, in Taylor v. Horde, 1 Burr. 60, said that " disseisin is a fact to be found by the jury." This rule has been adopted in our courts; and it is invariably held that the question as to whether an occupancy was with an adverse intent must be found by the jury. Poignard v. Smith, 23 Mass. (6 Pick.) 172; Hale v. Dewey, 10 Vt. 593; Jackson v. Joy, 9 Johns. (N. Y.) 102; Bradstreet v. Huntington, 30 U. S. (5 Pet.) 403; Kinsell v. Daggett, 11 Me. 309; Jack- son V. Stephens, 13 Johns. (N. Y. ) 496; Cohurn v. Hollis, 44 Mass. (3 Met.) 125; Gayetty v. Bethune, 14 Mass. 49; Plopkins v. Robinson, 3 Watts (Pa.) 205; Brandt v. Ogden, 1 Johns. (N. Y. ) 156; Jackson v. Sharp, 9 id. 163; Jackson v. Wheat, 18 id. 40; Jackson v. Waters, 12 id. 365; Jackson v. Ellis, 13 id. 118; Smith V. Burtis, 9 id. 174; Jackson V. Newton, 18 id. 355; Jackson v. Thomas, 16 id. 393; Jones v. Porter, 3 P. & W. (Pa.) 132; McClung v. Ross, 14 U. S. (5 Wheat.) 124, 5 L. Ed. 46; Her v. Routh, 3 How. (Miss.) 276; Cummings v. Wyman, 10 Mass. 464; VJallace v. Duffield, 2 S. & R. (Pa.) 527; Schwartz v. Kuhn, 10 Me. 374; Atherton v. Johnson, 1 N. H. 34; Munshower v. Patton, 10 S. 6 R. (Pa.) 334; Overfield v. Christie, 7 id. 173; Boiling v. Petersburg, 3 Rand. (Va.) 563; Malson v. Frye, 1 Watts (Pa.) 433; Bell v. Hartley, 4 W. & S. (Pa.) 33; McNair v. Hunt, 5 Mo. 300; Rogers v. Madden, 2 Bai- ley (S. C.) 331; Mill Dam Corp. v. Bullfinch, 6 Mass. 239; Bracken v. Martin, 11 Tenn. (3 Yerg.) 55; War- ren V. Childs, 11 Mass. 222; Read v. Goodyear, 17 S. & R. (Pa.) 350; Pray V. Pierce, 7 Mass. 383; Stevens v. Dewing, 2 Aik. (Vt.) 112. The proof to establish adverse possession must be clear and positive, and not left to inference. Weaver v. Wilson, 48 111. 135; Jackson v. Berner, id. 203. But when once established, it is presumed to continue, in the absence of proof of abandonment, or of possession by another under claim of title. Marston V. Rowe, 43 Ala. 271. Upon a trial involving such a title, the claimant may introduce the record of proceed- ings and judgment in an action of trespass previously brought by him against a third person in respect of the same premises. Such record is not evidence of his title, but is evi- dence that his possession was under claim of title, which is material. . Hol- lister v. Young, 42 Vt. 403. Where a claimant relies upon his possession to defeat the lien of a judgment. Adveese Possession and Eeal Actions. 1243 possession, as well as what evidence is necessary to establisli it, is for the court; but the question as to whether the possession in a given case is adverse, or under the owner's title, is for the jury, and the person setting up the claim takes the burden of establish- ing all the requisites to make his title by occupancy complete.'^ he must prove actual possession, and it is not sufficient to prove that he had such possession as a deed gave, without proving by the deed itself or otherwise, the character and extent of the possession which the deed gave, or what occupation was had under the deed. Eagle &,M. Co. v. Bank of Brunswick, 55 Ga. 44. An actual possession of some part of the prem- ises must be shown; and if an ease- ment is claimed by prescription, the use of the right is the only evidence of the extent to which it was ac- quired. Peterson v. McCullough, 50 Ind. 35. And where, while the right was being exercised, and before the statutory period had elapsed, the own- er asserts his rights by an action for the injury resulting from such use, it cannot ripen into a right. Cobb v. Smith, 38 Wis. 21. But mere verbal objections to, or denial of, the right of user is not such an interruption as will prevent an acquisition of the right by prescription. Kimball v. Ladd, 43 Vt. 747. The occasional cutting of timber and boiling of su- gar on the land of another, by the oc- cupier of an adjoining tract, and the extension of his lines so as to include a small portion of the meadowland, is not such a possession as will give title under the statute of limitations. In such cases the statute only ex- tends to the ground actually included in the interference. Washabaugh v. Entriken, 36 Pa. St. 513; Hole v. Eittenhouse, 23 Pa. St. 490. Evidence of occupation of wild, uninclosed land, by cutting firewood and bushes, and trimming the trees thereon, and, in one instance, within twenty years, by cutting off the entire growth of wood upon the land, and leaving it to grow over again, is held insufficient in Massachusetts to esfeiblish a title by possession, although such acts are within the knowledge of the owner. Parker v. Parker, 83 Mass. (1 Allen) 245. Occupancy through a tenant is sufficient. Smith v. Jackson, 76 111. 254. , Fencing in a small portion of the highway, not sufficient to serious- ly obstruct public travel, although done by an adjoining land-owner un- der claim of title, does not constitute an adverse .possession which can ripen into title. Brooks v. Riding, 46 Ind. 15. Evidence that a house and granary were built upon' the forty acres in controversy, and that one- half of the tract was cultivated and inclosed — held, to warrant a finding that the occupant was in possession of the whole forty. Teabout v. Dan- iels, 38 Iowa, 158. It is not neces- sary that the adverse character of the possession should be actually brought home to the knowledge of the plaintiff by affirmative proof, if it was adverse to all others, open, notorious, and held under claim of title. Scruggs v. Scruggs, 43 Mo. 142. 75. Herbert v. Hanrick, 16 Ala. 581; Rung v. Schoneberger, 3 Watts 12-14 . Statutes of Limitation. But the court may decline to submit the question of adverse pos- session to the jury, where, from the undisputed facts, as a matter of law, no such possession exists.'^ The character of the posses- sion requisite to establish a title by adverse possession has already been adverted to, and from what has been said it will be readily understood that the possession must be of a different character from that which marks the conduct -of a mere trespass, — it must be so open, notorious, and important as to operate as a notice to all parties that it is under a claim of right; that the right of the true owner is invaded and denied with an intention on the part of the occupant to assert a claim of title adverse to him;'' that is, a person must possess, use, and occupy the land as owner, and as an owner would do ; and an occasional exercise of do- minion by broken and unconnected acts of ownership over lands which may be made productive is in no respect calculated to assert to the world a claim of right, but, says Taylor, C. J.,'^ " such conduct bespeaks the fitful invasions of a conscious tres- passer rather than the confident claims of a rightful owner." There can be no hardship in limiting the claims of a wrong-doer to his actual occupancy, or in requiring him to occupy in such a decisive manner as to indicate his claim of ownership; and the distinction between the claim of a person under naked possession and one who claims under color of title, both as to the extent of his claim and the kind or quality' of possession requisite to estab- lish it, must not be lost sight of.'^ (Pa.) S3; Jones v. Porter, 3 P. & W. low, 49 Vt. 329; Paine v. Hutohins, (Pa.) 133; Gill V. Fauntleroy, 47 Ky. 49 Vt. 314. (8 B. Men.) 177; Baker v. Swan, 33 78. Jones v. Ridley, 3 N. C. 400. M'd. 355; Washburn y. Cutter, 17 79. In North Carolina an actual, Minn. 361. , open adverse possession, even of a 76. Argotsinger v. Vines, 82 N. Y. small part of a large tract of land, 308; Bowie v. Brahe, 3 Duer (N. Y.) will mature title to all the tract em- 35; Nearhoff v. Addleman, 31 Pa. braced within the boundaries of the 279. adverse holder's claim, but possession 77. Beatty v. Mason, 30 Md. 409; of one tract cannot give constructive Carroll v. Gillion, 33 Ga. 539; Thom- possession of an adjoining tract with as V. Babb, 45 Mo. 384; Soule v. Bar- the distinct boundaries. Scaife v. Adveese Possession and Eeal Actions. 1245 Under the rule as above stated, an adverse entry upon land, and digging a canal and felling trees,^" or turning cattle upon unenclosed land to pasture,*^ paying taxes upon it *^ and survey- Western North Carolina Land Co., 90 Fed. 338, 33 C. C. A. 47; Basnight v. ileekins, 121 N. C. 23, 37 S. E. 993; Allen V. Boggess, 94 Tex. S3, 58 S. W. 833. In Missouri and most of the- States, actual possession, in the absence of color of title, only extends to the part which has been inclosed. Carter v. Hornback, 139 Mo. 338, 245, 40 S. W. 893; Boynton v. Hodgdon, 59 N. H. 247; Penn. R. Co. v. Breck- enridge, 60 N. J. L. 583, 38 Atl. 740; FuUman v. Foster, 68 Vt. 590, 35 Atl. 484; Norris v. He, 152 111. 190, 38 N. E. 762, 43 Am. St. Rep. 233; Ely V. Brown, 183 111. 575, 596, 56 N. E. 181; Wilson v. Johnson, 145 Ind. 40, 38 N. E. 38, 43 N. E. 930; Barber V. Robinson, 78 Minn. 193; Nicklase V. Dickerson, 65 Ark. 433, 46 S. W. 945; Brown v. Watkins, 98 Tenn. 454, 40 S. W. 480; Parkersburg Ind. Co. V. Schultz, 43 W. Va. 470, 37 S. E. 255; Sulphur Mines Co. v. Thomp- son, 93 Va. 293, 25 S. E. 333. As used in this connection, " actual " pos- session depends upon the nature and location of the property and all the circumstances of the particular case. Ozark Plateau Land Co. v. Hays, 105 Mo. 143, 152, 16 S. W. 957; Illinois Steel Co. V. Bilot, 109 Wis. 418, 84 N. W. 855, 83 Am. St. Rep. 905, 85 X. W. 402. The rule appears to be now settled that, after an entry on land under color of title by deed, the possession is deemed to extend to the bounds of the deed, although the actual settlement and improvements are on a small parcel only of the land; and, as to the owner of the better legal title who occupies only in part, another claimant's junior pa- per title has no effect to extend the latter's right beyond the bounds of his actual possession under that junior title. Hunnicutt v. Peyton, 102 U. S. 333, 26 L. Ed. 113; Smith V. Gale, 144 U. S. 509, 526, 12 Sup. Ct. 674, 36 L. Ed. 521; Ozark Plateau Land Co. v. Hays, supra; Sholl v. German Ctoal Co., 139 111. 31, 33, 28 N". E. 748; Johns v. McKibben, 156 111. 71, 40 N. E. 449. And clearly there can be no constructive posses- sion of land which is in the actual and hostile possession of another. Now York Cent. & H. R. R. Co. v. Brennan, 24 App. Div. 343, 48 N. Y. S. 675, 678, aff'd 163 N. Y. 584, 57 N. E. 1119. 80. MeCarty v. Foucher, 12 Mar- tin (La.) 4, 114; Prevost v. Johnson, 9 id. 133. 81. Andrews v. Mulford, 1 Hawy. (N. C.) 311. In Sepulveda v. Sepul- veda, 39 Oal. 13, such a use of land was held not such as would enable the owner to maintain an action, con- sequently could not be construed into a disseisin. 82. The fact that taxes on the land have been uninterruptedly paid by the occupant or his ancestors for more than twenty years has been con- sidered strong evidence of a claim of right to all the property taxed. Fletcher v. Fuller, 120 U. S. 534, 552, 7 Sup. Ct. 667, 30 L. Ed. 759; Holtz- man v. Douglas, 168 U. S. 278, 284, 18 Sup. Ct. 65, 42 L. Ed. 466; St. Louis Public Schools v. Eisley, 40 124:6 Statutes of Limitation. ing it,^ or surveying and marking the lines around it, and the occasional cutting of grass ** or wood and timber for use and sale,^ a survey vsrhich is not accompained by any other act of user or occupation, — is not sufficient to establish an ouster, or prove that the party went upon the land to claim title ;^^ nor does an entry upon lands, cutting wood and splitting rails,*' or occasional entries at long intervals, at one time to cut timber and at another to make bricks,** tend to establish a title to land by adverse oecu- panc;^^. Indeed, in Massachusetts *^ it is held that there can be Mo. 356. On the other hand, if the adverse holder has not paid the taxes, this is evidence that his possession is not under a claim of title. Todd v. Weed, 84 Minn. 4, 86 N. W. 756. Such payment of taxes does not, apart from statute, constitute posses- sion though, accompanied by pastur- ing the land; it is merely evidence of a claim of ownership. Carter v. Hornback, 139 Mo. 338, 40 S. W. 893; MeVey v. Carr, 159 Mo. 648, 653, 60 S. W. 1034; Nye v. Alfter, 127 Mo. 529, 30 S. W. 186 ; Millett V. Mullen, 95 Me. 400, 49 Atl. 871; Whitman v. Shaw, 166 Mass. 451, 44 N. E. 333; Harrison v. Dolan, 172 Mass. 395, 53 N. E. 513; I/ewia v. Pleasants, 143 111. 271, 30 N. E. 323, 32 N. E. 384; Johns V. M'cKibben, 156 111. 71; Os- burn V. Searles, 156 111. 88, 40 N. E. 452; Anderson v. Canter, 10 Kan. App. 167, 63 Pac. 285; Fuller v. Jackson (Tenn.), 62_ S. W. 274; Wood V. Chapman, 24 Col. 134, 49 Pac. 136. In California and Texas the payment of taxes is made an ele- ment of adverse possession by stat- ute. See Lucas v. Provines, 130 Cal. 270, 63 Pac. 50'9; Standard Quick- silver Co. V. Habishaw, 132 Cal. 115, 64 Pac. 113; Gillum v. Fuqua (Tex. Civ. App.), 61 S. W. 938. In New York the payment of taxes is not evi- dence of possession, actual or con- structive; and in a suit against a city to determine title, its assessment and levy of taxes on the land are not admissible on the issue of adverse user. Archibald v. New York Cent. & H. R. R. Co., 157 N. Y. 574, 583, 53 N. E. 567 ; Consolidated Ice Co. v. New York, 166 N. Y. 93, 59 N. E. 713. 83. Paine v. Hutchins, 49 Vt. 314; Miller v. Long Island R. R. Co., 71 N. Y. 380. 84. Kennebeok Purchase v. Spring- er, 4 Mass. 416. See Miller v. Long Island R. Co., 71 N. Y. 380, where it was held that an occasional entry upon woodland was not suffici- ent to maintain an action for an in- jury to the freehold. 85. Slater v. Jepherson, 60 Mass. (6 Cush.) 129; Parker v. Parker, 83 Mass. (1 Allen) 345; Hale v. Glid- den, 10 N. H. 397; Washburn v. Cut- ter, 17 Minn. 361. 86. Beatty v. Mason, 30 Md. 409. 87. Carroll v. Gillion, 33 Ga. 539. 88. Williams v. Wallace, 78 N. C. 354. 89. Morrison v. Chapin, 97 Mass. 72; Morris v. Callanan, 105 Mass. 129. Adveese Possession and Eeal Actions. 1247. no adverse claim to wild or wood land by a naked entry, without an actual enclosure built by the person claiming title or those under whom he claims; and if the entry is under color of title, the claimant must either enclose the land, or in some way mani- fest his exclusive occupation, which mtist be of such a character as to disseise the owner,'" and whether or not he has so occupied is a question of fact for the jury.'^ But in that State it has been held that a title to flats may be made by an appropriate occupa- tion, by entering upon and filling them up, or by building a wharf and using the flats adjoining for laying vessels, and that is such case the occupant will acquire an adverse title not only to the land covered by the wharf, but also as to so much of the land under the water (as in this case eighty feet) as was used for the purpose of laying vessels.'^ But as the use of navigable waters for the passage of vessels to and from a wharf is a usage of common right, the title was restricted to the portion of the flats used for laying the vessels, and did not embrace that portion of them lying beyond and between the outer limits of the eighty-feet strip and that portion of the shore where the title of the State terminated.'^ The exercise of a common right, however long 90. Bates v. Norcross, 31 Mass. (14 93. Wheeler v. Stone, supra. In Pick.) 224; Coburn v. Hollis, 44 Wilson v. McEwan, 7 Oreg. 87, it was Mass. (3 Met.) 125. held that a person who claimed 91. Cummings v. Wypian, 10 Mass. several blocks of land, and occupied 464; Parker v. Locks and Canals, 44 one adversely, could not claim title Mass. (3 Met.) 91. The exercise of to the others simply because he had n right, for however long a time, un- paid the taxes and warned off tres- der circumstances which are not in- passers. consistent with the exercise of the As to adverse possession of land same right by others, will not estab- under water, see Atty.-Gen. v. Ports- lish a prescriptive right to an exclu- mouth, 25 W. R. 559; Jones v. Wil- Bive use thereof, although no other liams, 3 M. & W. 326; Illinois Steel person did in fact exercise the privi- Co. v. Bilot, 109 Wis. 418, 84 N. W. lege. State v. Cincinnati Gas Light 855, 83 Am. St. Eep. 905, 85 N. W. Co., 18 Ohio St. 262. See Indiana- 402; De Lancey v. Hawkins, 23 App. polis, etc., E. Co. v. Ross, 47 Tnd. 25. Div. 8, 49 N. Y. S. 469, aff'd 163 N. 92. Wheeler v. Stone, 55 Mass. (1 Y. 587, 57 K. E. 1108; Merrill v. Cush.) 313. See also, Nichols V. Bos- Tobin, 30 Fed. 738; Ludlow Manuf. ton, 98 Mass. 39. Co. v. Indian Orehard Co., 177 Mass. 1248 Statutes of Limitation. continued, cannot operate a disseisin.^^ The fact that a person passes over flats with vessels and anchors them there, or uses the flats for the purposes of access and egress from a vi^harf ,^^ or sails over them with boats or vessels for a long period, for the pur- poses of navigation,'^ does not amount to possessory acts sufficient to give title under the statute ; nor does the cutting of grass every 61, 58 N. E. 181. A riparian proprie- tor, being entitled to accretions made by the water, if barred, or partially barred, by the statute of limitations as to the river bank, is barred also as to the accretions, whether they be new or old. Campbell v. Laclede Gas Co., 84 Mo. 353, 373, afif'd 119 U. S. 445, 7 Sup. Ct. 278, 30 L. Ed. 459. As to prescriptive rights in artificial water courses, see Gould on Waters (3d ed.), §§ 225, 340, 352, 13 Harv. Eev. 608. 94. Green v. Chelsea, 41 Mass. (34 Pick.) 71; Drake v. Curtis, 55 Mass. (1 Cush.) 395. See Tracy v. Nor- wich, etc., R. Co., 39 Conn. 382; and East Hampton v. Kirk, 68 N. Y. 459, where the same rule was adopted where the only possessory acts were such as existed as a common right. Tappan v. Burnham, 90 Mass. (8 Allen) '65, also Drake v. Curtis, 55 Mass. (1 Gush.) 395. As to adverse possession against the government or the public, see Gould on Waters (3d ed.), §§ 23, 37, 121; Schneider v. Hutchinson, 35 Or. 253, 57 Pac. 324, 76 Am. St. Rep. 474, and n. ; Meyer v. Graham, 33 Neb. 566, 50 N. W. 763, 29 Am. St. Rep. 500, 18 L. R. A. 146, and u. " It has sometimes been suggested that the comparative amount of rightful private use (oif a way) and of the public use which is without absolute right is an important ele- ment in determining whether such public use is under a claim of right. No doubit the amount of such unau- thorized use may be considered as tending to show a use under the be- lief that the way is a public one; but the final test is, not whether it is greater or less in amount than the rightful private use, but whether it is of such a character as to show the assertion or assumption of a right so to use the way, or a use under the belief that such use is a matter of public right. See' Weld v. Brooks, 153 Mass. 397, 25 N. E. 719; Taft V. Commonwealth, 158 id. 526, 552, 33 N. E. 1046." And while it is not necessary for each traveller to claim a right of way as one of the public, yet " the fact must exist that the way is used as a, public right, and it must be proved by some evidence which distinguishes the use relied cu from a rightful use by those who have a, right to travel over the pri- vate way, and also from a use which is merely casual, or incidental, or permissible.'' Sprow v. Boston & Al- bany R. Co., 163 Mass. 330, 340, 39 N. E. 1024. See Franz v. Mendonca, 131 Cal. 305, 63 Pac. 361. As to limitation in matters of emi- nent domain, see 2 Lewis on Eminent Domain (2d ed.), ch. 30, 38 Am. L. Reg. (N. S.) 184, 410. 95. Wheeler v. Stone, supra. 96. Drake v. Curtis, supra. ■Adveese Possession and Eeal Actions. 1249 year upon flats partly covereid with water,'' or the entry upon an open heach for a long period of time and gathering and removing the seaweed, because these acts are consistent with the rights of the rest of the public, and afford no evidence of an adverse claim.'^ An entry upon land and erecting a building or buildings thereon operates as a disseisin to the extent of the actual occupancy, but title to adjacent lands occasionally used in connection with the buildings cannot be acquired by such use;^' but if the use of adjoining land is of such a character that it can be said to be continuous, as where a house was extended over a part of the land, and the rest was cultivated as a garden under a claim of title the use operates as a disseisin of the whole.'' Of course, an entry upon land, and improving or cultivating it, continued for the requisite statutory period, even though the person entering has no color of title, will give title to all the land actually cultivated or improved, but no more.^ So, using land for mining purposes or quarrying stone,^ and cutting wood for a lime-kiln,* clearing and cultivating new fields, turning out old ones and cutting wood promiscuously, has been held sufficient.^ § 259. Entry and possession with color of title. But while a person entering upon lands adversely, without any deed or color of title, is thus restricted to the land actually occupied by hinx, and takes nothing beyond the limits of his actual occu- pancy, and is required to occupy the land for the purposes of improvement or cultivation, yet where a person goes into posses- sion under color of title, duly recorded, in which the boundaries of the lot are defined, this operates as constructive notice to all 97. Commonwealth v. Eoxbury, 75 2. Miller v. Shaw, 7 S. & E. (Pa.) Maaa. (9 Gray) 451. 129; M'CafTrey v. Fisher, 4 W. & S. 98. Tappan v. Burnham, supra; (Pa.) 181; Hall v. Powel, 4 S. & R. East Hampton v. Kirk, supra. (Pa.) 456. 99. Poignard v. Smith, 25 Mass. (8 3. Bell v. Denson, 56 Ala. 444. Pick.) 272. 4. Moore v. Thompson, 69 N. 0. 1. Hastings v. Merriam, 117 Mass. 120. 345. 5. Wallace v. Maxwell, 33 N. C. (10 Ired.) 110. 19 1250 Statutes or Limitation. the world, of his claim, and also of its extent, so that not only does a sufficient occupancy of a part of the lot cany with it, by construction, the possession of the entire premises described by his conveyance, where the boundaries are well defined,® but also dispenses with the rule as to pedis possession and only requires from him such an occupancy as the nature and character of the premises admit of.' The rule is well stated in an Illinois case,* G. Stevens v. Hollister, 18 Vt. 294; Back V. Smyera, 2 Strobh. (S. C.) 24; Lenoir v. South, 32 N. C. (10 Ired.) 237; Johnson v. JIcMillan, 1 Strobh. (S. C.) 143; Jackson v. Oltz, 8 Wend. (N. Y.) 440; Sim.pson v. Downing, 23 id. 316; Golson v. Hook, 4 Strobh. (S. C.) 23; Janes v. Pat- terson, 62 Ga. 527; Coleman v. Bil- lings, 89 m. 183; Waggoner v. Hast- ings, 8 Pa. 300; Ament v. Wolf, 1 Grant's Oas. (Pa.) 518; Jackson v. Porter, 1 Paine (U. S. C. C.) 457; Ware v. Johnson, 55 Mo. 300; Chap- man V Templeton, 53 Mo. 463; Well- bom V. Anderson, 37 Miss. 155; Bynum t. Thompson, 25 N. C. (3 Ired.) 578; Kile v. Tubbs, 23 Cal. 431; Webb v. Sturtevant, 2 111. 181; Shaekleford v. Smith, 35 Ky. (5 Dana) 232; Jackson v. Vermilyea, 6 Cow. (N. Y.) 677; Prevost v. John- son, 9 Mart. (La.) 123; Jackson v. Smith, 13 Johns. (N. Y.) 406; Poig- nard v. Smith, 25 Mass. (8 Pick.) 272; Waldron v. Tuttle, 4 N. H. 371; Sparhawk v. Bullard, 42 Mass. (1 Met.) 95; Higbee v. Rice, 5 Mass. 344; Pcarsal v. Thorp, 1 D. Chip. (Vt.) 92; Read v. Eifert, 1 N. & Mc- Cord (S. C.) 374, n.; King v. Smith, 1 Eice (S. C.) 14; McEvoy v. Lloyd, 31 Wis. 143; Ralph v. Bayley, 11 Vt. 521; Thompson v. Cragg, 24 Tex. 582; McRae v. Williams, 52 N. C. (7 Jones L.) 430; Crary v. Goodman, 2B N. Y. 170; Cline v. Catron, 22 Gratt. (Va.) 378; Hawkins v. Robinson, 3 Watts (Pa.) 205; Bowie v. Brahe, 3 Duer (N. Y.) 35; Fiunlay v. Cook, 54 Barb. (N. Y.) 9; Downing v. Mil- ler, 33 id. 383; Munro v. Merchant, 28 N. Y. 9; Hubbard v. Austin, 11 Vt. 129; M'Call v. Neely, 3 Watts (Pa.) 70; HoUinshead v. Nauman, 45 Pa. 140; Alden v. Grove, 18 Pa. 377; Fitch v. Mann, 8 Pa. 503; Ege V. Medlar, 82 Pa. 86; Sholly v. Stahl, 2 W. N. C. (Pa.) 418; Xearhoff v. Addleman, 31 Pa. 279; McCall v. Coover, 4 W. & S. (Pa.) 151; Heiser V. Riehle, 7 Watts (Pa.) 35; Saxton V. Hunt, 20 N. J. L. 487; Bowman V. Bartlett, 10 Ky. (3 A. K. Mar.) 99; Cheney v. Ringgold, 2 H. & J. (Md.) 87; Stanley v. Turner, 5 K. C. (1 Murph.) 14; Crowell v. Bebee, 10 Vt. 33; Chiles v. Conley, 39 Ky. (9 Dana) 385; Alston v. Collins, 3 Speers (S. C.) 450. 7. Royer v. Benlow, 10 S. & E. (Pa.) 303. See Robinson v. Swett, 3 Me. 316. Whenever an instrument by apt words of transfer from grantor to grantee, whether the grantor acts under the authority of judicial pro- ceedings or otherwise, in form passes what purports to be the title, it gives to the grantee color of title"^ even should the instrument be considered as invalid. Hall v. Law, 102 U. S. 461, 26 L. Ed. 217. 8. Coleman v. Billings, 89 111. 183; Fisher v. Beunehoff, 121 111. 426., •Adveese Possession aistd Real Actions. 1^51 that a person who enters into possession of land under a convey- ance, although from a person having no title, is presumed to enter according to the description in the deed ; and his occupancy of a part, claiming the whole, is construed as a possession of the entire tract.* But in order to entitle a party to the benefits of See Austin v. Rust, 73 111. 491 ; Scott V. Delany, 87 111. 146; Hubba-rd v. Kiddo, 87 111. 578; Cairo, etc., R. R. Co. V. Woolsey, 85 111. 370. In the main case (Fisher v. BennehoflF) it was held that testimony is admissi- ble to show who was in possession during the period, or any portion thereof, when title by possession was being acquired. 9. A deed without a seal which purports to convey a title is sufficient as color of title. Kruse v. Wilson, 79 111. 233; Hamilton v. Boggess, 63 Mo. 233. So is a void deed. Mason V. Ayers, 73 111. 121. Executor's deeds, valid or not,' are sufficient as color of title. King v. Merritt, 67 Mich. 194. A deed by the husband of a life tenant, after her decease, may, under some circumstances, be good as a color of title. Forest v. Jackson, 55 N. H. 357. So a bond for a deed. Spitter v. Scofield, 43 Iowa 571. So a, deed obtained from a person who has no title may be good as color of title. Russell v. Mandell, 73 111. 136; McCamy v. Hig- dou, 50 Ga. 639; Nowliu v. Reynolds, 25 Gratt. (Va.) 137; Payne v. Blackshear, 52 Ga. 637; Fagan v. Rosier, 68 111. 84. It was held in some early cases in New York, that possession taken under a grant from a foreign government does not con- stitute a sufficient color of title. Jack- son V. Ingraham, 4 Johns. (N. Y. ) 163. See also, Jackson v. Waters, 12 id. 365. But in view of the gen- eral doctrine that every possession under pretense or claim of right is protected, without regard to whether the title was from a valid source, the distinction made in these early cases seems not to be recognized. Barney V. Sutton, 2 Watts (Pa.) 37; La Frombois v. Jackson, supra. See, as to the effect of what may be termed Indian deeds, that is deeds from the aborigines, Jackson v. Porter, 1 Paine (U. S. C. C.) 457; Johnson v. Mcin- tosh, 17 U. S. (8 Wheat.) 543, 571, 5 L. Ed. 681; Thompson v. Gotham, 9 Ohio 170; Jackson v. Hudson, 3 Johns. (N. Y.) 384. Continued, open, and ex- clusive possession for the statutory period, under claim and color of title, is sufficient to give a, good title thereto, without regard to the regu- larity and validity of the colorable title, or to the defects or insufficiency of the instruments confirming it. Grant v. Fowler, 39 N. H. 101; Far- rar v. Fessenden, 39 K. H. 268; Elliott V. Pearce, 20 Ark. 508; Cofer V. Brooks, 20 Ark. 542; St. Louis v. Gorman, 29 Mo. 593. And an entry upon and continued occupation of a portion of a lot, under a deed de- scribing the whole by metes and bounds, sivps possession of all the lands embraced in the title under wJiich the entry is made and the oc- cupation continued. It need not com- mence or be continued under valid and effectual deeds. See Farrar v. Fessenden, supra. Imperfections and irregularities in any part of the claim 1252 Statutes of Limitation, an extension of his possession by construction, it is essential that the deed or -writing should describe and include the land not actually occupied f-" and if the land is not described in the writing in such a manner that it can be readily identified, the doctrine relative to constructive possession cannot apply, and the party must stand or fall by his actual occupancy.-'^ Indeed, color of title has been aptly described as any writing which purports to convey the title to land by apt words of transfer, and clearly defines the extent of the claim ;-^^ and a party cannot claim lands by constructive possession which are not embraced within the description of the deed under which he claims j^^ but as to lands outside his boundaries, but contiguous thereto, he is put to his claim of actual occupancy.-^* It is not essential in all cases that the land should be described by metes and bounds; but it must be described in such a manner that the limits and extent of the claim can be readily ascertained.-^^ It is sufficient if the instru- of title from which color is derived do not of themselves afiford evidence of bad faith. Dawley v. Van Court, 21 111. 460; Edgerton v. Bird, 6 Wis. 537. An administrator's deed void as against heirs for want of notice, they being minors, will give color of title, under which, if the premises be held adversely during the statute period after the heirs attain their majority, their right of action will be barred. Vancleave v. Milliken, 13 Ind. 105. But a deed which does not describe the land is not color. Kil- patrick v. Sneros, 33 Tex. 113. If a deed is intended to convey all the land which the grantor owned in a certain tract, and the grantor had marked a line beyond the one con- veyed to as the line of the lot con- veyed, it has been held that the grantee might hold to the line so marked. Mayse v. Lafferty, 38 Tenn. (1 Head) 60. 10. Woods V. Banks, 14 N. H. Ill; Thompson v. Cragg, 34 Tex. 583; Jackson v. Camp, 1 Cow. (N. Y.) 605. 11. Jackson v. Woodruff, 1 Cow. (N. Y.) 276. 12. Hall V. Law, 103 U. S. 461, 35 L. Ed. 317; Bank v. Smyers, 3 Strobh. (S. C.) 24; Johnson v. Mc- Millan, 1 id. 143 ; Lynde v. Williams, 68 Mo. 360. In the first of these cases cited in this note, the court also held that it was immaterial whether the grantor acts under judi- cial proceedings or otherwise, or whether the title was actually con- veyed or not, provided the grantee went into possession under the deed and occupied for the requisite statu- tory period. 13. Pope V. Hanraer, 74 N. Y. 240. 14. Slaughter v. Fowler, 44 Oal. 195. 15. In Henley v. Wilson, 81 N. C. Adveese Possession and Real Actions. 1253 ment relied on purports upon its face to convey the lands in ques- tion, and describes them with such definiteness that they can be easily identified/® although in fact it is invalid and insufficient to pass the title/' or actually void/^ or one that is voidable, as a deed from an infant,-^^ or from an officer who had no authority in fact to convey the land,^" or although such authority, if he had any, is not shown,^-"^ or although made under a sale which was subse- quently invalidated by individual or judicial action.^^ A tax- 405, where, in an action of trespass to land, the judge instructed the jury that a will, devising " all my lands on both sides of Haw River, in Chat- ham County, and all the mills and appurtenances and improvements thereto, said property being known as the McClenahan Mills," gave color of title, provided the jury found that the tract was well known throughout the country by that name, and that the boundaries were all as- certainable and visible, and the plain- tiff was in actual adverse possession, was sufBoient to enable him, by an oc- cupancy of part of the land, to claim the whole, was held correct. In Oongdon v. Morgan, 14 S. C. 587, an entry under a, deed, and marking out the claim by survey and stakes, and building a wharf and boat-sheds, were held to be possessory acts under color of title. IG. Jackson v. Frost, 5. Cow. (N. Y.) 346; Hall v. Law, 102 U. S. 461, 26 L. Ed. 317; Lynde v. Williams, 68 Mo. »60; Wales v. Smith, 19 Ga. 8; Dobson v. Murphy, 18 N. C. (1 D. & B.) 586; Coleman v. Billings, swgra. 17. La Frombois v. Jackson, 8 Cow. (N. Y.) 589; Mason v. Ayers, 73 111. 121; Forest v. Jackson. 56 N. H. 357; Fagan v. Rosier, 68 111. 84; Mc- Camy v. Higdon, 50 Ga. 639; Russell V. Mandell, 73 111. 136; Nowlin v. Reynolds, 25 Gratt. (Va.) 137; Payne v. Blackshear, 52 Ga. 637. 18. Ewing V. Burner, 36 U. S. (11 Pet.) 41, 9 L. Ed. 624; Moody v. Fleming, 4 Ga. 115. 19. Murray v. Shanklin, 20 N". C. (4 D. & B.) 288. 20. Hester v. Coats, 22 Ga. 56. 21. Ibid.; Riggs v. Dooly, 46 Ky. (7 B. Mon.) 236; North v. Hammer, 34 Wis. 425; Northrop v. Wright, 7 Hill (N. Y.) 476; Brien v. Sargent, 13 La. Ann. 198; Bailey v. Doolittle, 24 111. 577. 22. Hamilton v. Wright, 30 Iowa 480. But see Presley v. Holmes, 33 Tex. 476, where it was held that where a title under which an occu- pant holds is subsequently invali- dated by judicial action, his posses- sion from that time becomes tortious. To constitute color of title, some act must have been done conferring some title, good or bad, to a pa.rcel of land of definite extent; a mere disseisor cannot resort to the metes and bounds of the tract upon which he wrongfully enters. St. Louis v. Gorman, 29 Mo. 593. An unrecorded deed is good' color of title. Hardin v. Barrett, 51 N. C. ('6 Jones L. ) 159. An admin- istrator's deed is void on account of 1254= Statutes of Limitation. collector's deed,^^ a paper purporting to be a will,^* a deed from a defects in the order of sale. Root v. McFerrin, 37 Miss. 17. So a deed void as to the grantor's creditors. Harper v. Tapley, 35 Miss. 506. But it is held that a deed which disclaims any title in the grantor on its face is not good color, as the execution of a bond foT a deed signed "A. B., Agent." Simmons v. Lane, 25 Ga. 17S. If real estate is held in common, and one ten- ant assumes to convey the entire land, or any specific part of it, by metes and bounds, his deed will be a, color of title, and possession under it for the statutory period will be ad- verse to the title of the cotenants, and bar their right to recover the land conveyed. Weisinger v. Mur- phy, 39 Tenn. (2 Head) 674. Though a tax sale of land be irregular and in- valid, the collector's deed in connec- tion with proof of the actual posses- sion of the land by the purchaser, and those claiming under him, during the whole period of limitation, is suffici- ent to entitle him to have his posses- sion protected and his title quieted. Elliott V. Pearce, 20 Ark. 608; Cofer V. Brooks, 20 Ark. 542. A judgment of the county court in proceedings to settle the estate of a person who, though represented to be dead, proves to be living, cannot support a claim by adverse occupation, under the stat- ute authorizing such claim when founded on " the judgment of some competent court;" such proceedings in administering are absolutely void for all purposes. Melia v. Simmons, 45 Wis. 334. A deed made by a clerk or master in equity, after he goes out of office, on a sale made by him while in office, is color of title, though not otherwise operative. Wil- liams V. Council, 49 N. C. (4 Jones L.) 206. A sheriff's deed, accom- panied with possession under it, gives a color of title without proof of the judgment and execution, and aiTords a starting-point for the statute of limitations to run. Hester v. Croats, 22 Ga. 56. The universal legatee cannot set up the will of the testa- tor as a just title, and make it the basis of the prescription of ten years. Griffon v. Blanc, 12 La. An. 5. A title by descent is an assurance of title. Hubbard v. Wood, 33 Tenn. (1 Sneed) 279. An administrator is within the description of " other per- son authorized to sell land," so as to give title by seven years' actual residence. If the foundation or source of the title by which a- party claims under the limitation act is of record, the title is " deduoible of rec- ord," within the meaning of that statute. Collins v. Smith, 18 111. 160. A void and worthless deed is sufficient as foundation of an ad- verse possession. Roberts v. Pillow, Hemp. (U. S.) 624. When one claims under color of title, the nature and extent of his claim, as well as his possession, must be made known, but color of title need not necessarily consist of re- corded instruments. Ozark v. Plateau Land Co. v. Hays, 105 Mo. 143, 150, 16 S. W. 957; Belief ontaine Imp. Co. V. Niedringhaus, 181 111. 426, 55 N. E. 184, 72 Am. St. Rep. 269; Dono- hue V. Whitney, 133 N". Y. 178, 30 N". E. 848; Fullam v. Foster, 68 Vt. 590, 35 Atl. 484; Moore v. Hinkle, 151 Ind. 343, 50 N". E. 822; Davis r. Adveese Possession and Eeal Actions. 1255 mortgagee,-^ or an unrecorded deed, is good color of title.^^ It has been intimated that there may be color of title without any oonveyance in writing, and that it may be created by an act in pais, as by a verbal gift of land, with a survey and surrender of Davis, 68 Miss. 478, 10 So. 70; Zun- del V. Baldwin, 114 Ala. 3^8, 21 So. 420; Furgerson v. Bagley, 95 Ga. 516, 20 S. E. 241; Libbey v. Young, 103 Ipwa 258, 72 N. W. 520; Hebard v. Scott, 95 Tenn. 467, 32 S. W. 390. Circumstances which show suflBcicnt notoriety of claim, and of its extent and nature, may sometimes impart to an unrecorded or even void docu ment the effect of color. Ibid.; Nel son V. Cooper, 108 Fed. 919, 48 C. C, A. 140; Northern Pac. Ry. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L. E A. 526, 87; Power v. Kitehing, 10 N. D. 254, 86 N. W. 737, 88 Am. St. Rep 691; Nye v. Alfter, 127 Mo. 529, 30 S. W. 186. Sob Jones on Real Prop- erty, § 122 et seq.; 1 Am. & Eng. Encyc. of Law (2d ed.), p. 846; 1 Encyc. of Law & Proc, p. 1082. Thus, one whose house is on adjoin- ing land, who, cultivating the land in dispute, is known to claim under an unrecorded and unauthorized guar- dian's deed thereof to him, has color of title thereto, especially when the real owner lives near by and knows the circumstances. Plaster v. Gra- beel, 160 Mo. 669, 61 S. W. 589. So, in Washington, it is held that a void deed, accompanied by actual occupa- tion, is sufficient to set the statute in motion, though as to short statutes in relation to sales of realty for taxes a different view has been ex- pressed. Hurd V. Brisner, 3 Wash. 1, ZS Pac. 371, 28 Am. St. Rep. 17; ,Ward V. Huggins, 7 Wash. 617, 624. 33 Pac. 740, 1015, 36 Pac. 285; Red- field V. Paries, 132 U. S. 239, 10 Sup. Ct. 83, 33 L. Ed. 327; Dibble v. Bellingham Bay Land Co., 163 U. S. 63, 72, 16 Sup. Ct. 939, 41 L. Ed. 72. It is essential to color of title that the premises be described with the same degree of certainty as is re- quired in deeds relied upon as ab- solute conveyances. Allmendinger v. McHie, 189 111. 308, 316, 59 N. E. 517; see O'Brien v. Goodrich, 177 Mass. 32, 58 N. E. 151. The fact that the use of the granted premises is limited, by the deed thereof, to a par- ticular purpose, does not interfere with its constituting color of title. Petit V. Flint & Pare Marquette R. Ck)., 119 Mich. 492, 78 N. W. 554, 75 Am. St. Rep. 417. One taking possession under color of title may set up in defense a sup- posed outstanding title in a third per- son, without connecting himself there- with, because his possession is good against all but the true owner; but a mere trespasser cannot show a con- tinuity of the adverse holding by set- ting up such a title. Lucy v. Ten- nessee & C. R. Co., 92 Ala. 246, 249, 8 So. 806. 23. Rivers v. Thompson, 43 Ala. 633. 84. McConnell v. McConnell, 64 N. C. 343. 85. Stevens v. Brooks, 24 Wis. 326. 26. See Nowlin v. Reynolds, 35 Gratt. (Va.) 137. 12-56 Statutes of Limitation. possession by the donor to the donee.^' In one case,^* it was said that an entry under a hona fide claim originating under a parol contract for the purchase of land and payment of the purchase- money, where the boundaries of the land are well defined, invests the purchaser with all the benefits of constructive possession, the same as though there had been a contract in writing describing the lands.^^ A deed made under a sale of a life estate only, does not constitute sufficient color of title to become the basis of an adverse possession, because it does not purport to convey the fee.^" But a deed executed after her decease, by a husband, of lands in which his wife had only a life estate, if it purports to convey the fee, will be a sufficient color to build an adverse possession upon;^^ because, as a rule, although the statute will not run against a remainderman,^^ yet it may run against him 27. Eannels v. Rannels, 52 Mo. 108. 28. M'Call V. Neely, 3 Watts (Pa.) 69. A defendant in ejectment, desir- ing to rely on a deed as color of title for the purpose of establishing title by p'rescription, need not show affirm- atively that the person who made the deed had either title or possession, apart from fraud. A written agree- ment to divide lands owned or claimed in common, though made by the administrator of one of the ten- ants in common without an order from court for the partition thereof, is admissible in evidence as color of title, and though such an agreement does not prescribe the lin« with great certainty. M'cMuUin v. Erwin, 58 G-a. 427; McNamara v. Seaton, 82 111. 498. A title bond, whether the pur- chase-money be paid or not, save as against the vendor, is, if connected with the sovereignty of the soil, title, or color of title, under which a de- fendant may maintain his defense un- der the statute of limitations of three years. Elliott v. Mitchell, 47 Te.x. 445. But in Georgia, to make an ex- ecution showing levy upon, and sale of, certain land, admissible as color of title, there must be proof that a deed was executed in accordance with such sale. Baird v. Evans, 58 Ga. 350. In all cases, in order to a dis- seisin of the true owner by adverse possession under a defective deed, such possession must be exclusive. Bellis V. Bellis, 122 Mass. 414. 29. Brown v. King, 46 Mass. (5 Met.) 173;..Magee v. Magee, 37 'Miss. 138; Robertson v. Wood, 15 Ark. 1. 30. Dewey v. McLain, 7 Kan. 136. 31. Forest v. Jackson, 56 N. H. 357. 32. Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390; 3 Cruise's Dig. 403; Cheseldine v. Brewer, 4 H. & McH. (Md.) 487; Hall v. Vandegift, 3 Binn. (Pa.) 374; Henderson v. Griffin, 30 U. S. (5 Pet.) 150, 8 L. Ed. 79; Litchfield v. Ready, 1 Eng. L. & Eq. 460; Bradstreet v. Hunting- ton, 30 U. S. (5 Pet.) 40. Adveese Possession and Eeal Actions. 1257 after the estate falls in;^^ and where a husband sells the fee of an estate of which he is only seised as tenant by curtesy, while the statute will not be put in motion as to the wife or the heirs of the wife until after her death, yet from that period the statute begins to run.^* As previously stated, any writing which on 33. See Arnold v. Garth, 106 Fed. 13; Matson v. Abbey, 141 N. Y. 179, 36 N. E. 11; Meacham v. Bunting, 156 111. 586, 41 N. E. 175, 2S L. E. A. 618, 47 Am. St. Eep. 239; Clark V. Parsons, 69 N. H. 147, 39 Atl. 898, 76 Am. St. Eep. 157; Lumley v. Hag- gerty, 110 Mich. 552, 68 N. W. 243, 64 Am. St. Eep. 364; Bowen v. Bro- gan, 119 Mich. 218; Whitaker v. VVhitaker, 157 Mo. 342, 58 S. W. 5; Chambers v. Chambers, 139 Ind. Ill, 38 N. E. 334 Hanson v. Ingwaldson, 77 Minn. 533, 80 N. W. 702, 77 Am. . St. Eep. &92; Lamar v. Pearre, 82 Ga. 354, 9 S. E. 1043, 19 Am. St. Eep. 168; Hoskins v. Ames, 78 Miss. 986, 29 So. 828; Eobinson v. Pierce, 118 Ala. 273, 24 So. 984, 45 L. E. A. 66, 72 Am. St. Eep. 160; Anderson V. Northrop, 30 Fla. 612, 12 So. 318; In re Owen (1894), 3 Ch. 220; Tich- borne v. Weir, 67 L. T. 735; Morrow V. James, 69 Ark. 539, 64 S. W. 269 ; Jeflfries v. Butler, 108 Ky. 531, 56 S. W. 979, 23 Ky. Law Eep. 226 ; Al- len V. De Groodt, 98 Mo. 159, 11 S. W. 340, 14 Am. St. Eep. 626, and note; Gindrat v. Western Ey. of Ala- bama, 96 Ala. 163, 11 So. 373, 19 L. E. A. 839, and note. When, however, equitable as well as legal remedies are barred by the statute, if a trus- tee or administrator is barred of his remedy, his cestui que trust are also barred, even though they include re- maindermen. Partee v. Thomas, 11 Fed. 769, 778; Lloyd v. Ball, 77 Fed. 365; East Eome Town Co. v. Cothran, 81 Ga. 359, 8 S. E. 737; Weems v. Simpson, 93 Ga. 364, 30 S. E. 548; Barclay v. Goodloe, 83 Ky. 493, 5 Ky. Law Eep. (abstract) 936. As a, rule, a payment by a tenant for life binds the remainderman. Leahy v. De Moleyns (1896), 1 I. E. 306; see Ba,rcroft v. Murphy, id. 590. 34. Miller v. Schackleford, 33 Ky. (3 Dana) 289; Constantine v. Van Winkle, 6 Hill (N. Y.) 177; Mera- man v. Caldwell, 47 Ky. (8 B. Mon.) 32; Melius v. Snowman, 21 Me. 201; Bruce v. Wood, 42 Mass. (1 Met.) 543. Where the wife joins with the husband in the deed in the convey- ance of an estate in the wife in tail, the statute runs from the date of the deed and possession under it, against the children. Giddings v. Smith, 15 Vt. 344. But if the conveyance is in the name of the husband, and the wife signs the deed, " in token of the relinquishment of all her right in the bargained premises," it has been held that the wife is not barred of her entry after the husband's decease, Bruce v. Wood, supra; upon the gen- eral doctrine that the remainderman cannot be barred until the estate falls in. See Gill v. Fauntleroy, 47 Ky. (8 B. Mon.) 177; May v. Hill, 15 Ky. (5 Litt.) 313; Patrick v. Che- nault, 45 Ky. (6 B. Mon.) 315; Cook V. Danvers, 7 East 299; Wallingford V. Hearl, 15 Mass. 471; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Wells 1258 Statutes of Limitation. its face purports to convey certain lands affords sufficient color of title for the purposes of the statute, although fraudulent on the T. Prince, 9 Mass. 508; Jackson v. Sellick, 8 Johns. (N. Y.) 263; Heath V. White; 5 Conn. 228. Where there are two separate rights of entry, the loss of one by lapse of time does not impair the other; and if a person ac- quires a second right, he is allowed a new period in which to pursue his remedy, although he has neglected his first. 2 Cruise's Dig. 498; Good- right V. Forrester, 8 East 551; Hunt T. Bourne, 1 Salk 339. A remainder- man expectant on an estate for life or years, who has a right to enter because of the forfeiture of the ten- ant, is not bound to avail himself of the forfeiture, and his neglect to en- ter at that time does not bar him of his entry on the limitation of the estate by efflux of time or the death of the tenant. Stowel v. Zouch, 1 Plowd. 374; Salmons v. Davis, 29 Mo. 176; Woodson v. Smith, 38 Tenn. (1 Head.) 276; Stevens v. Winship, 18 Mass.) (1 Pick.) 318; Bell v. Mc- Cawley, 29 Ga. 355; Miller v. Ewing, 60 Mass. (6 Cush.) 34; Gibson v. Jayne, 37 Miss. 164; Gwynn v. Jones, 2 G. & J. (Md.) 173; Wells v. Prince, 9 Mass. 508; Allen v. Blakeway, 5 C. & P. 563. This rule accorded with the maxim of the old civil law, quando duo jura concurrunt in una persona aequum est ac si essent in diversis. According to Plowden, in Stowel v. Zouch, Plowd. 374, when there were three separate rights in the same person, he was entitled to the bene- fits of all of them the same as though they existed in three different per- sons. But in England, by statute, this old principle is abolished, except in cases where the same person who has the reversion has also the par- ticular estate. Johnson v. Liversedge, 11 M. & W. 517; Hall v. Moulsdale, 16 M. & W. 689. But after the es- tate has fallen in, the reversioner . must enter upon the land within the statutory period. Altemas v. Camp- bell, 9 Watts (Pa.) 28; Berrington V. Parkhurst, 13 East 489; Eidgely V. Ogle, 4 H. & McH. (Md.) 123; Goodright v. Cator, 1 Doug. 477; Doe V. Danvers, 7 East 399; Har- baugh V. Moore, 11 G. & J. (Md.) 283; Jackson v. Haviland, 13 Johns. (N. Y.) 229; Brown v. Porter, 10 Mass. 93; or bring an action for the recovery of the possession, in which case the confession of lease, entry, and ouster dispense with an entry, 3 Cruise's Dig. 383; Den v. Moore, 8 N. J. L. 6; Bond v. Hopkins, 1 Sch. & Lef. 413; Jackson v. Cairns, 20 Johns. (N. Y.) 301. In order to make an entry effectual, it must be made upon the land. Anonymous, Skinn. 412; Kennebec Purchase v. Laboree, 3 Me. 275; Robinson v. Sweet, 3 Me. 316; and if it lies in two or more counties, entry must be made in each county. Jackson v. Lunn, 3 Johns. (N. Y.) Gas. 109. But if an actual entry is prescribed by force or fraud, then his intention to enter, made as near the land as possible, has been held sufficient as an equiva- lent for an entry. Jackson v. Havi- land, 13 Johns. (N. Y.) 229; Jack- son V. Schoonmaker, 4 id. 389; 3 Cruise's Dig. 289. The entry must be made animo clamandi and must be indicated cither by acts or words Adverse Possession and Reax Actions. 1259 part of the grantor, ^^ or def ective,^^ or invalid," or void,^^ or a deed from one having no title or authority to convey,^' or a quitclaim deed which conveys no interest.^" Thus, a deed executed by an attorney without authority,*^ or by an officer upon a tax sale which was invalid,^^ or by an administrator which was void for want of notice to the heirs,^^ or a quitclaim deed from a person who had no interest,^* and, in a word, however groundless the supposed title may be, if the writing purports to convey it, it affords color of title, and a proper basis for an adverse possession under it.*^ Indeed, it has been held that any instrument having a grantor and grantee, and containing a description of the lands intended accompanying the act, Robinson v. Swett, 3 Me. 316; and must bear on its face an unequivocal challenge of the occupant's right, Altemas v. Campbell, supra; and whether so made or not is a question for the jury, Miller v. Shaw, supra; Dillon T. Mattox, 21 Ga. 113; Holtzapple v. Phillibaum, 4 Wash. (U. S.) 356; Brown v. M'Kinney, 9 Watts (Pa.) 565; Hooper v. Garner, 15 Pa. 517. The entry may be made by the rever- sioner in person or by his agent, Hinman v. Cranmer, 9 Pa. 40; Inger- Boll V. Lewis, 11 Pa. 213; or even an entry made by a person not author- ized may be ratified so as to make it operative, Hinman v. Cranmer, supra. As to the estate by the curtesy, as the husband is the one entitled to sue for the possession, the statute runs against the wife or her descendants only when such estate terminates. Dawson v. Edwards, 189 111. 60, 59 N. IJ. 590. 35. Griffin v. Stamper, 17 Ga. 108; Gregg v. Sayre's Lessee, 33 U. S. (8 Pet.) 244, 8 L. Ed. 932. A deed, al- though not recorded, which purports to convey title, no matter on what founded, is held to amount to color of title. Lea v. Polk County Copper Co., 6S U. S. (21 How.) 493, 16 L. Ed. 303; Hanna v. Renfro, 32 Miss. 125; Dickenson v. Breeden, 30 111. 379. It has been held that color of title may be given without any writ- ing. McClellan v. Kellogg, 17 111. 498. 36. McClellan v. Kellogg, 17 111. 498. 37. Cofer v. Brooks, 20 'Ark, 543; Elliott V. Pearce, 30 Ark. 508. 38. Whitesides v. Singleton, 19 Tenn. (1 Meigs) 207; Cornelius v. Giberson, 35 N. J. L. 1; Vancleve v. Wilkinson, 13 Ind. 105; Ewing v. Burnett, 36 U. S. (11 Pet.) 41, 9 L. Ed. 634; Livingston v. Pendergast, 34 N. H. 544. 39. Hill V. Wilson, 6 N. C. (2 Murph.) 14; Munrq v. Merchant, 38 N. Y. 9; Farrow v. Edmundson, 43 Ky. (4 B. Mon.) 605. 40. Minot V. Brooks, 16 N. H. 374 ; McCamy v. Higdon, 50 Ga. 629. 41. Hill V. Wilson, supra. 42. Elliott V. Pearce, supra. 43. Vancleve v. Wilkinson, supra. 44. Minot v. Brooks, 16 N. H. 374. 45. La Frombois v. Jackson, 5 Cow. (N. Y.) 589. 1260 Statutes of Limitation. to be conveyed, and apt words for their conveyance, gives color of title. ■'^ The rule which is generally adopted, and which seems to be the only one resting upon any accurate basis, is, that color of title is that which in appearance is title, but which in reality is no title; and the question as to what is color of title is merely a question of law for the court, leaving the question of occu- pancy under it, and of bona fides in those States where by statute it is required to be established, for the jury.*^ A valid and perfect title is not required ;** and a deed without a seal,^^ or one that is not recorded,^ is sufficient.^^ 46. Brooks v. Bruyn, 35 111. 393; Childa V. Showers, 18 Iowa 261. A iona fide claim by color of title is not disparaged by the claimant's knowledge that the boundary lines are uncertain, and the title disputed. Cornelius v. Giberson, 35 N. J. L. 1. Color of title is anything in writing, connected with the title, which serves to define the extent of the claim. Walls V. Smith, 19 Ga. 8. Where one is in possession, claiming title under and pursuant to a state of facts, which of themselves show the charac- ter and extent of his claim, such facts perform sufficiently the oflBce of color of title. Bell v. Longworth, 6 Ind. 373. That color may be given for title without any writing, and commence in trespass, and when founded on writing it is not essential that it should show on its face a prima facie title, but it may be good as a foundation for color, however defective, see McClellan v. Kellogg, 17 111. 498. A written instrument ia not always necessary to constitute color of title, but there must in all cases be some indicia or visible acts of ownership, which are apparent to all, showing the extent of the bound- aries of the land claimed. Cooper v. Ord, 60 Mo. 430. Color of title is that which is a title in appearaace, but not in reality; and possession under an invalid deed draws to it the protection of the statute. Wright v. Mattison, 59 U. S. (18 How.) 50, 15 L. Ed. 280; Arrowsmith v. Burlin- game, 4 McLean (U. S.) 490; Hol- den V. Collins, 5 id. 189; Barger v. Miller, 4 Wash. (U. S.) 380. In Cali- fornia, " radeo " boundaries are equivalent to notorious evidence of possession. Boyreau v. Campbell, 1 McAll. (U. S.) 119. The sale by an administrator of a solvent estate of his intestate's land under license does not give color of title, unless a deed is executed. Livingston v. Pender- gast, 34 N. H. 544. See also Hester V. Coats, 23 Ga. 56. 47. Hanna v. Renfro, 32 Miss. 125; Dickinson v. Brown, 30 111. 399; Wright V. Mattison, supra; Wales v. Smith, 19 Ga. 8; Lea v. Polk County Copper Co., 63 U. S. (21 How.) 493, 16 L. Ed. 203. 48. Close v. Samm, 37 Iowa 503; Hinea v. Robinson, 57 Me. 324; Field ^. Boynton, 33 Ga. 239. 49. Barger v. Hobba, 67 111. 592. 50. Rawson v. Fox, 65 111. 300. 51. The belief of the occupant that ■Adveese Possession and Real Actions. 1261 In Louisiana, by statute, good faith on the part of the occu- pant is made an essential element ; but while in some of the early cases in some of the States the courts seem to hold that good faith on the part of the grantee is a material element in determin- ing whether a conveyance operates as color of title or not, yet it is not easy to understand how that question can be of any sort of importance, except where it is made a necessary element by stat- ute. One of the very essentials of color of title is that it shall be raised^ by an instrument which appears to convey a title, but in reality conveys none; and it would seem almost ridiculous that it could be of any sort of importance for the purpose of acquiring title under such a conveyance, whether the grantee acted in good faith in obtaining it or not. His act in entering into possession is a wrong, and his possession continues wrongful until it ripens into a right by virtue of a continuance of the wrong for the requisite statutory period. Without any title whatever, except a naked claim resting in parol, and which the person mak- ing knows to be groundless, it is universally held that a title may be acquired to the extent of the actual occupancy. Now, by what process of reasoning is any bona fides dispensed with in the former case, and insisted upon when a person enters under a color of title? True, in the latter case, the occupant is not re- stricted to his actual occupancy, but is treated, under proper limitations, as constructively in possession of all the land that is described in and prima facie conveyed by the conveyance to him. It has never been intimated that the doctrine of construc- tive possession was extended to such cases because of the good faith of the occupant in taking his conveyance, but it is predicated entirely upon the ground that the conveyance marks the limit of his claim, and operates as notice to everybody of its limit and extent, and it is upon this ground alone that the doctrine rests, subject to the condition that there is an actual, open, visible, his title is absolute, when in fact it Woodcock, 154 Mass. 535, 28 N. E. is only a life estate, docs not make 907. his occupation adverse. Mixter v. 1262 Statutes of LiMiTATioiir. iinin' conve Lterrupted, and hostile occupancy of a part of the premises eyed for the full statutory period.^^ 52. The strictest proof of the hos- tile inception of the possession is re- quired. As to the supervening change of possession, that must be proved by an accession of another title, and other circumstances furnishing a mo- tive for exclusive claim. See United States V. Arredondo, 31 U. S. (6 Pet.) 743, 691, 8 L. Ed. 547; Clarke's Lessee v. Courtney, 30 U. S. 354, 8 L. Ed. 140; Jackson ea) dem. Brad- street V. Huntington, 30 U. S. (5 Pet.) 402, 8 L. Ed. 170; M'lver v. Eagan, 15 U. S. (2 Wheat.) 29, 4 L. Ed. 175; Kirk v. Smith, 22 U. S. (9 Wheat.) 241, 288, 6 L. Ed. 81; La Frombois V. Jackson, 8 Cow. (N. Y.) 589; Gittens v. Lowry, 15 Ga. 336; Jackson v. Potter, 1 Paine (U. S.) 457; Markley v. Amos, 2 Bailey, 603; Eay v. Barker, 40 Ky. (1 B. Mon.) 364; Moore v. Moore, 21 Me. 350; Lamb v. Foss, id. 240; Millay V. Millay, 18 id. 387; Hamilton v. Paine, 17 id. 219; Read v. Thompson, 5 Pa. 327; Dikeman v. Parrish, 6 id. 210; Hall v. Stephens, 50 Mass. (9 Met. 418; Moore v. Johnston, 3 Speers (S. C.) 288; Rogers v. Hill- house, 3 Conn. 398 ; Borrets v. Tur- ner, 2 N. C. (2 Hayw.) 114; Armour V. White, id. 69; Grant v. Winborne, id. 56; Anonymous, id. 134; Hatch v. Hatch, id. 34; Tasker v. Whittington, 1 H. & McH. (Md.) 151. The statute ripens no possession into title which is unaccompanied with a color of title, but there need not be a, right- ful title. Jackson v. Wheat, 18 Johns. (N. Y.) 44; Jackson v. Newton, id. 355; Smith v. Lorillard, 10 id. 356; Smith V. Burtis, 9 id. 180; Jackson V. Woodruff, 1 Cow. (N. Y.) 276; Jackson v. Camp, id. 605. An entry under color or claim of title is sufB- cient and it is immaterial whether the title afterwards turns out to be valid or invalid. Nor is it material, when the entry is made under a con- veyance, whether such conveyance does or does not contain covenants of warranty. Jackson v. Newton, 18 Johns. (N. Y.) 355. The fact that the purchaser from the sheriff is af- terwards induced to doubt the valid- ity of his title under the sheriff's sale, where he continues in possession un- der the same, it seems, will not de- stroy the adverse character of that possession. Northrop v. Wright, 7 Hill (N. Y.) 476. A sheriff's deed is held admissible in evidence as color of title, although unaccompanied by the execution under which the prop- erty was sold, and the sheriff sold without authority. Burkhalter v. Ed- wards, 16 Ga. 593. . A sheriff's deed which recited the execution under which the sheriff sold the land, tested and signed by the deputy clerk in- stead of the clerk himself, inures as color of title, although the State con- stitution requires all writs to bear teste and be signed by the clerks of the respective courts. Den v. Put- ney, 7 N. C. (3 Murph.) 563. One who enters into possession of land under a deed purporting to convey to him an estate in fee, claiming to be sole and exclusive and absolute owner in fee thereof, may be regarded as holding adverse to all the world. Bradstreet v. Huntington, 30 U. S. (5 Pet.) 401. 'Adverse Possession aitd Real Actions. 1^63 We think that the weight of authority sustains the rule that any instrument which purports to convey lands, and describes A deed purporting to be executed by virtue of a power of attorney from the owner of the land, which power is not proved, affords sufficient color of title on which to found an adverse possession, if there has been a good constructive possession under it. Monro v. Merchant, 28 N. Y. 9. To give color of title does not require the aid of a written conveyance or other evidence jn writing; but it is only necessary that the entry be made under a, hona fide and not a pretended claim of title existing in another. La Frombois v. Jackson, 8 Cow. (ISr. Y.) 589; M'Call v. Neely, 3 Watts ( Pa. ) 70. Even if the grantor in deeds be justly chargeable with fraud, but the grantees did not par- ticipate in it, and when they received their deeds had no knowledge of it, but accepted tlie same in good faith, the deeds upon their face purporting to convey a title in fee, and showing the nature and extent of the prem- ises, there can be no doubt the deeds give color of title under the statute of limitations. Gregg v. Sayre's Les- see, 33 U. S. (8 Pet.) 244, 8 L. Ed. 932. It is settled that, however wrongful or fraudulent the posses- sion, or defective the title, an entry under claim of exclusive title, found- ing such claim upon a written con- veyance, accompanied by a continued possession for the requisite period, constitutes an effective adverse pos- Bssion. The muniment is but one cir- cumstance by which to make out an adverse possession. An oral claim of exclusive title or any other circum- stances by which the absolute owner of land is distinguished from the naked possessor, are equally admissi- ble, and may be equally satisfactory. Humbert v. Trinity Church, 24 Wend. (N. Y.) 587. Bona fides is not requi- site to adverse possession, although there are some cases in which the idea is intimated that fraud may be received as an answer to the statute, when it is interposed against a legal claim. But those cases generally arose under the statutes concerning champetry and maintenance. Jack- son V. Andrews, 7 Wend. (N. Y.) 152; Livingston v. Peru Iron Co., 9 id. 511. After the statutory limit, it is always dangerous to open an in- quiry upon the bona fides of the de- fendant's claim. See Den v. Leggat, 7 N. C. (3 Murph.) 539. This ac- cords with the general tenor of all the cases, and as early as the reign of Queen Elizabeth the English courts recognized the doctrine. See Stowell V. Lord Zouch, Plowden 358, 371; Maddock v. Bond, 1 Irish T. R. 332, 340. Some of these cases arose under statutes of short limitation, and the strict doctrine laid down is more ap- propriate in cases of long than those of short limitation. See Cholmon- deley v. Clinton, 2 J. & W. 1, 139, 155. In all cases, unless a statute intervenes and establishes a different doctrine a possession to be adverse need only to be under color or claim of title, that is, inconsistent with the title of the claimant who is out of possession. Northrup v. Wright, 7 Hill (N. Y.) 476; Bogardus v. Trin- ity Church, 4 Sandf. (N. Y.) Ch. 633, 712, 738. It is the office of the stat- ute to mature a possession, in itself wrongful, if accompanied by even a 1264 Statutes of Limitation. them definitely, and upon its face appears to be a valid deed or conveyance of the premises, is a sufficient color of title, regard- less of the question of bona fides or mala fides on the part of the grantee under it. The office of such conveyances is to mark the limits of the occupant's claim, and they are admitted in evidence, not necessarily to prove title, but merely to indicate the extent of an occupant's claim, and as a defense under the statute of limitations in connection with proof of the requisite period of occupancy. ^^ In Louisiana, the statute makes a distinction be- tween a person who enters in good faith and a just title and one who does not. In the former case possession is acquired in ten years, but lands are prescribed for in thirty years without any need of good faith or title. In most of the other States the statute is silent upon this point, and indeed in most of them the entire doctrine relative to constructive possession is the outgroMh of judicial decisions. § 260. Executory contracts, etc. — Possession under. When an instrument is executed to a person which on its face shows that the entry is not under a claim of title in himself, but that it is in another, it follows as a necessary consequence that it does not afPord color of title, and that no length of possession under it can ripen into an adverse title; and under this rule it follows that a possession and claim of land under an executory contract of purchase is not such an adverse possession as will render a deed from the true owner void for champerty or maintenance; nor is it such an adverse possession as, if continued for the requi- site period, will bar an entry within the statute of limitations ; and especially it is in no sense adverse as to the one with whom the contract is made.^* pretense of title, into a legal right. evidence of adverse possession. But In some of the States, as in Georgia, this is contrary to the general rule. it was provided by statute that no Tyler on Ejectment, 861. possession is adverse unless evidenced 53. Finlay v. Cook, 54 Barb. (N. by vpritten evidence of title, and any Y.) 9. forged or fraudulent title will not be 54. Jackson v. Johnson, 5 Cow. (N. 'Adverse Possession- and Real Actions. 1265 To constitute an adverse possession, it must not only be hostile in its inception, but the possessor must claim the entire title; for if it be subservient to, and admits the existence of, a higher title, it is not adverse to that title. ^^ But where a contract is made for the sale of land upon the performance of certain conditions, and the purchaser enters into possession under the contract, his possession from the time of entry is adverse to all except his vendor,^^ and it seems now to be well settled that, after the per- formance by him of all the conditions of the contract, he from that time holds adversely to the vendor, and full performance is treated as a sale, and the party in possession may acquire a good title as against the vendor by the requisite period of occupancy." Y.) 74; Higginbotham v. Fishback, 8 Ky. (1 A. K. Mar.) 506; Wilkin- son V. Nicbols, 40 Ky. (1 B. Mon.) 36 ; Richardson v. Broughton, 2 N. & McC. (S. C.) 417; Fowke V. Darnall, 15 Ky. (5 Litt.) 316; CMlea v. Bridges, 16 Ky. (Litt. Sel. Caa.) 4S0; Kirk V. Smith, 23 U. S. (9 Wheat.) 241, 6 L. Ed. 81; Jackson v. Hotch- kiss, 6 Cow. {N.\Y.) 401. 55. Botts v. Shield, 13 Ky. (3 Litt.) 34; Proprietors v. M'Farland, 12 Mass. 324; Knox v. Hook, id. 329. 56. Whitney v. Wright, 15 Wend. (N. Y.) 171; Woods v. Dille, 11 Ohio 455. See sec. 219. 57. Ridgeway v. Holliday, 59 Mo. 444; Clapp V. Bromagham, 9 Cow. (N. Y.) 530; Briggs v. Prosser, 14 Wend. (N. Y.) 238; Em parte De- partment of Public Parks, 73 N. Y. 560; La Frombois v. Jackson, supra; Vrooman v. Shepherd, 14 Barb. (N. Y.) 441; Fain v. Garthright, 5 Ga. 6 ; Brown v. King, 46 Mass. ( 5 Met. ) 173; Catlin v. Delano, 38 Conn. 262; Stark V. Starr, 1 Sawyer (U. S. C. C.) 15; M'Call v. Neely, 3 Watts (Pa.) 69; Hunter v. Parsons, 2 80 Bailey (S. C.) 59; Bank v. Smyers, 2 Strobh. (S. C.) 24; Fowke v. Beek, 1 Speers (S. C.) 291. Any posses- sion which is accompanied by the recognition of a superior title still existing cannot be adverse. Griswold V. Butler, 3 Conn. 246. But where a person enters under an agreement to purchase, whether by parol or otherwise, and pays for the land, or takes a, deed which is defective, the possession from that time, prima, facie becomes adverse. So, School Dist. V. Blakeslee, 13 Conn. 235; French v. Pearce, 8 id. 439; Bryan v. Atwater, 5 Dey (Conn.) 181. In such a case, after the requisite statu- tory period, the jury may presume a conveyance. Maltonner v. Dimmick, 4 Barb. (N. Y.) 566. Specific per- formance of such a contract will not be denied, even though thirty years have elapsed since the right to have it matured. Somerville v. Trueman, 4 H. & McH. (Md.) 43; Ripley v. Yale, 18 Vt. 220; A.pp]eby v. Obert, 16 N. J. L. 336; Ellison v. Cathcart, 1 McMull. (S. C.) 5; Pendergrast v. Gullatt, 10 Ga. 218 ; Magee v. Magee, 1266 Statutes of Limitation. ' But an entry cannot become adverse where it is made upon a condition to be performed by the person entering until it is per- formed. Thus, where a person goes into possession of land under an agreement to exchange, and to pay a balance thereon, a con- veyance to be made when such balance is paid, the possession cannot become adverse until such balance is paid.^^ The fact that a vendee under a contract to purchase, who went into possession under it, abandons the possession of the land, and subsequently goes into possession under a lease from another, will not make his possession adverse to his vendor. His second entry and pos- session relates back to, and continues the possession under, the original possession, and will not create a new and adverse posses- sion.^^ This is also the rule as to all permissive entries upon land, as under a license, etc., so long as the license remains unrevoked, there can be no adverse occupancy, but possession continued after the license has expired may become adverse.^" And the same rule holds as to any permissive entry. So long as the occupation is under such permission, the possession cannot be adverse; but when the permission is withdrawn, or terminates by efflux of time, or the occupant disclaims, and gives notice of such dis- claimer to the person under whom he entered, he may hold adversely. ^^ The rule that to make an entry adverse it must be 37 Miss. 138; Drew v. Towle, 31 N. 59. Pratt v. Canfield, 67 Mo. 50. H. 531; McQueen v. Ivey, 36 Ala. 60. Babcock v. Utter, 33 How. Pr. 308; Lander v. Eounsaville, 13 Tex. (N. Y.) 439; Luce v. Carley, 34 195; Paxson v. Bailey, 17 Ga. 600. Wend. (N. Y.) 451; Farsli v. Coon, But while the contract is unper- 40 Cal. 33. formed on the part of the vendee, and 61. See post, sec. 365, Landlord and he is in possession, he is treated as a Tenant; White v. Hapemau, 43 Mich, tenant at will to tlie vendor, and not 267 ; Thompson v. Felton, 54 Cal. 547. as a disseisor. Brown v. King, su- A claim of title by adverse posses- pro; Stamper v. Griffin, 20 Ga. 312; sion must have been under a claim Van Blarcom v. Kip, 26 N.' J. L. 351; of title; but a possession originally Judger V. Barnes, 48 Tenn. (1 permissive will never become adverse. Heisk.), 570; Ormond v. Martin, 1 Adams v. Guice, 30 Mass. 397. And Ala. Sel. Cas. 526. the possession must be held by the 58. See Adams v. FuUam, 47 Vt. claimant, or some one in privity with 558. him; if it is held by a person with ■Adverse Possession aito IIea.i. Actions. 1267 hostile in its inception/^ is subject to the exception that a party so entering may disclaim, and from the time when notice of such disclaimer is brought home to the person under whom he entered his possession becomes adverse, but that he takes noth- ing by his previous occupancy.^^ An entry under a parol gift of whom the claimant resides, the pos- session is not adverse. See Snodgrass V. Aodrews, 30 Miss. 472. Evidence that an administrator entered into the possession of land of his intes- tate, upon a sale under a license, at which the land was struak off to him- self, that he considered himself the owner, had the land surveyed and the lines around it marked, let a neigh- bor mow over a part of it, and cut three or four pine timber trees upon it, during an occupation of about three years, is not evidence of such possession, marked by definite bound- aries, as is necessary to render it ad- verse to the title of the legal owner. Livingston v. Pendergast, 34 N. H. 544. An administrator's possession of the estate of the intestate, contin- ued for a long time after the period limited by law for closing the admin- istration and distributing the prop- erty, does not, by the mere lapse of time, change the original character of the possession, and make it adverse against those entitled to distribu- tion, or create any right or title in the administrator under the statute. Harriet v. Swan, 18 Ark. 495. An administrator's deed may confirm the title of the heirs, and not be adverse to it. See Livingston v. Pendergast, 34 N. H. 544. 62. McGee v. Morgan, 8 Ky. (1 A. K. Mar.) 62; Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jackson v. Par- ker, 3 Johns. Cas. (N. Y.) 124; Kirk V. Smith, 22 U. S. (9 Wheat.) (U. S.) 241, 6 L. Ed. 81; Jackson v. Ber- ner, 48 111. 203. 63. Hamilton v. Wright, 30 Iowa 486 ; Huls V. Buntin, 47 111. 397. An entry by one man on the land of an- other is an ouster of the legal pos- session arising from the title, or not, according to the intention with which it is done; if made under claim or color of right adverse to the legal title, it is an ouster; otherwise it is a mere trespass, as the intention guides the entry and fixes its charac- ter. The doctrine of adverse posses- sion is taken strictly, and is not made out by inference. Brandt v. Ogden, 1 Johns. (N. Y.) 156; Jack- son v. Sharp, 9 id. 163; Jackson v. Parker, 3 Johns. Cas. (N. Y.) 124; Gay V. Mofiat, 5 Ky. (2 Bibb.) 507; McGee v. Morgan, 8 Ky. (1 A. K. Mar.) 62. Where a party occupied land as the tenant of the owner until the death of the latter, and after that held possession in right of his wife, who was an heir of the deceased owner, during which he acquired the interest of several of the other heirs, he always recognizing their claims, his possession after the death of the owner was held not adverse to the re- maining heirs. Busch v. Huston, 75 111. 343. See Kille v. Ege, 79 Pa. 15. The quality and extent of the right acquired by possession of lands de- pends upon the claim accompanying it; and to be adverse there must be 1268 Statutes of Ltmitatioit. certain lands, the extent of which is definitely fixed, is adverse to the donor, and ripens into a title after the lapse of the requisite a claim of title in fee. Bedell v. Shaw, 59 N. Y. 46. The adverse pos- session of a tenant is notice to all the world that he can maintain what- soever title he has against all the world. Jeffersonville, etc., R. Co. v. Oyler, 60 Ind. 383. Where lands of a married woman are sold by her husband, the possession of the gran- tee does not become adverse to the wife until the marriage is termi- nated. Stephens v. McCormick, 68 Ky. (5 Bush.) 181. The possession, to give title, must be adversary; and it cannot be adversary unless it is hostile to the true title. Kirk v. Smith, 23 U. S. (9 Wheat.) (U. S.) 241, 288, 6 L. Ed. 81. Adverse pos- session sufficient to defeat the legal title where there is no paper title must be hostile in its inception and is not to be made out by inference, but by clear and positive proof; and the possession must be such as to show clearly tliat the party claims the land as his own, openly and ex- clusively. Jackson v. Birner, 48 111. 138. A possession taken under a grant from the French Canadian gov- ernment, before the conquest of Can- ada by the British, of land in the State of New York, is not hostile to any private or individual right, but is and must be considered as held in subordination to title conveyed by a patent of the State. Jackson v. Wa- ters, 12 Johns. (N. Y.) 365; Jackson V. Ingraham, 4 id. 163. Where a party did not originally enter into the possession of the land under a. title hostile to the title of the owner, it will be intended that he entered under his title. Jackson v. Thomas, 16 Johns. (N. Y.) 393. If a man en- ters on land, without claim or color of title, and no privity exists between him and the real owner, he may af- terward acquire such a title to the land as the law will, prima facie, consider a good title, and from that moment his possession becomes ad- verse. Jackson v. Thomas, supra; Jackson v. Frost, 5 Cow. (N. Y.) 346. Where a party is in possession of lands in privity with the rightful owner, nothing short of an open and explicit disavowal and disclaimer of a holding under that title, and asser- tion of title in himself, brought home to the owner, will satisfy the law. Floyd V. Mintsey, 7 Rich. (S. C.) 181. The doctrine has been maintained that a party in possession of lands confessedly in subordination to the title of the owner is incapable in law of imparting, by any act of his own, an adverse character to his posses- sion; also that, in order to deny or dispute the title, he must first sur- render the possession, and place the owner in the condition in ■vshich he stood before the possession was taken under him. This doctrine was sup- posed to govern the rights of trustee and cestui que trust, landlord and tenant, vendor and vendee, tenants in common, and the like, and by it no lapse of time would support a stat- ute bar to the right of entry by rea- son of an adverse possession between parties standing in this relation, or others of like privity. The law, how- ever, has been settled otherwise. The statute does not operate until the 'Adveese Possession and Eeal Actions. 1269 statutory period.^* There are cases in which a contrary doctrine is held;^^ but the weight of authority, as well as common sense and the principles applicable to adverse possession, seem to sup- port the rule as stated, because a person entering under such cir- cumstances enters as owner, and occupies under a claim of owner- ship, and every attribute requisite to acquire a title by adverse possession exists."^ possession, before consistent with the title of the real owner, becomes tor- tious and wrongful by the disloyal and notorious acts of the tenant. In an action of ejectment the court charged the jury that : " Notice of the disclaimer puts the true owner under the same obligation to reclaim the possession within the fixed period, as if no trust had erer existed; and it matters not whether the trust began by the voluntary act of the trustee, or the law made him a trustee against his will, as the re- sult of his situation or conduct;" and the Supreme Court of the United States, on writ of error, sustained the charge of the judge. Zeller's Lessee V. Eckert, 45 U. S. (4 How.) 2S9, 11 L. Ed. 979. This doctrine, however, does not impair the rule that a pos- session to be adverse must be hostile in its inception. In the cases last referred to the party may be said to have held possession under different claims, at different dates, the last of which was hostile, and hence adverse, and the first was in subservience to the true title, and not adverse. The possession must be hostile in its in- ception. Jackson v. Camp, 1 Cow. (N. Y.) 605. A possession and claim of land, under an executory contract of purchase is not adverse, as to the one with whom the contract is made. But when one enters under a contraxjt for a deed with one party, and after- ward takes a deed from another party, his possession from this time is adverse to the first vendee, and, if continued the statutory period, will bar his entry. Jackson v. Johnson, 5 Cow. (N. Y.) 74; Jackson v. Bard, 4 Johns. (N. Y.)' 331. After perform- ance of a contract of purchase, and an equitable title to a deed of the premises acquired, there is no good reason why the vendee's possession may not become adverse. Briggs v. Prosser, 14 Wend. (N. Y.) 228. . 64. Clark v. Gilbert, 39 Conn. 94; Graham v. Craig, 81 Pa. 465; School District v. Blakeslee, supra; Sumner V. Stephens, 47 Mass. (6 Met.) 337; Moore v. Webb, 41 Ky. (3 B. Mon.) 283; Outcalt v. Ludlow, 32 N. J. L. 339; Steel v. Johnson, 86 Mass. (4 Allen) 435. 65. Watson v. Tindal, 24 Ga. 494; Jackson v. Rogers, 1 Johns. (N. Y.) Gas. 36. 66. As to specific performance spe- cial provisdons of a contract of sale may require or imply that the pur- chaser is to have a good title by the record, but it is not yet settled in Massachusetts that in no case will a purchaser be compelled in equity to take a title which rests on adverse possession. See Noyes v. Johnson, 139 Mass. 436, 31 N. E. 767; Conley v. Finn, 171 Mass. 70, 73, 50 N. E. 1370 Statutes of Limitation. § 261. Mixed possession. The rule is, that where there is a mixed possession, — that is, where there are two or more persons in possession, each under a separate conveyance or color of title, — the possession will be treated as being in him who has the better title, upon the ground that the seisin is in him who has the best title, and, as all cannot be seised, the possession follows the title.^^ The rule is well settled that title 460, 68 Am. 6t. Rep. 399; 33 Am. L. Rev. 357. Such a title is suffici- ent to support a petition for dam- ages to land caused by the discon- tinuance of a highway, or by the tak- ing pf the land by a railroad corpora- tion. Andrew v. Nantasket Beach R. Co., 153 Mass. 506, 3.5 N. E. 966. 67. Langdon v. Potter, 3 Mass. 219; Oilman v. Wilson, 10 id. 151; Cushman v. Blanchard, 3 Me. 266; Bellis V. Bellis, 122 Mass. 414; Cris- pen V. Hannavan, 50 Mo. 536. When two persons are in possession of land at the same time, under different claims of right, he has the seisin in whom the legal title is vested. Winter v. Stevens, 91 Mass. (9 Allen) 526. If the holders of two hostile titles to the same land each occupy a small portion within the exterior boundaries of the tract, the construc- tive possession follows the true title, and limitation does not run in favor of the holder of the invalid title, ex- cept as to his actual possession. Semple v. Cook, 50 Cal. 26. One who lias the title to land, but fails to take actual possession of it for twenty years, is not barred by the statute, because the title carries with it the seisin. Mylar v. Hughes, 60 Mo. 105. Ordinarily, the possession of one who does not hold the true title can ex- tend only to the land in actual oc- cupancy. If a written instrument is relied upon as giving color of title the entry and occupation must be open and notorious, and the true owner must have actual or construc- tive notice of the instrument under which claimant enters of the actual possession, and of extent and bound- ary of the claim, which can only be l L. Ed. 398 ; Duke v. Harper, 14 Tenn. (6 Yerg. ) 280; and surrender the property before he will be permitted to assert it. Reed v. Shepley, 6 Vt. 603; Tompkins v. Snow, 63 Barb. (N. Y.) 525; Hershey v. Clark, 37 Ark. 535; Brown v. Keller, supra; Ryer- son V. Eldred, 18 Mich. 13; Greeno V. Munson, 9 Vt. 37; Moshier v. Red- ding, 13 Me. 478. Statements of his own title will not be evidence unless brought home to the landlord. In- gram V. Little, 14 Ga. 173. And a tenant at will will not be permitted to set up an inconsistent title with- out surrender or eviction by the own- er of a paramount title or its equiva- lent. Town V. Butterfield, 97 Mass. 105. He cannot avail himself of the purchase of an outstanding title to defeat the title of his landlord, Clemm v. Wilcox, 15 Ark. 103; Russell v. Titus, 3 Grant's Gas. (Pa.) 395; El- liott V. Smith, 23 Pa. 131. See Gal- lagher V. Bennett, 38 Tex. 291. In; order to create this estoppel, the re- 'Adveese Possession ajstd 'Real Actions. 1283 fraud of the landlord or by a mistake in the execution of the lation of landlord and tenant must exist. It does not apply to a tort- feasor or one who has not recognized the landlord's title. But if he has distinctly recognized the landlord's title, so that he can be said to hold under him, or in subsei-viency to his title, the rule applies. The best evi- dence of such recognition is the pay- ment of rent or the taking of a lease; but these are not indispensable. Hood V. Mathias, 21 Mo. 308; Plumer v. Plumer, 30 N. H. 558; Morse v. Rob- erts, 2 Cal. 515. In Maine, it is held that there must be an actual sur- render of the premises, and that no- tice to the landlord is not sufficient. Longfellow v. Longfellow, 61 Me. 590. If a tenant holds over after the termi- nation of his lease, he cannot, by sur- rendering part of the premises, ac- quire a right to dispute the title of the landlord to the remainder. Long- fellow V. Longfellow, 54_ Me. 240; stoops V. Delvin, 16 Mo. 162. A sub- tenant cannot dispute the title of his lessor or of his assignee. Stagg v. Eureka Tanning Co. 56 Me. 317; Dunshee v. Grundy, 81 Mass. (15 Gray) 314; Earle v. Hale, 31 Ark. 470; PreT«at v. Lawrence, 51 N". Y. 219. A tenant at sufferance is bound by this estoppel. Griffin v. Sheffield, 36 Miss. 359. Nor can a lessee of a tenant at will dispute the title of his lessor or of the landlord. Hilbourn V. Fogg, 99 Mass. 11. ISTor can the lessee for life at law set up a convey- ance by the intestate to a third per- son, of which he was ignorant when they leased to hiim. Hawesv. Shaw, 100 Mass. 187. A tenant contracting to pay the taxes upon the premises cannot, by permitting the lands to be sold for taxes, and purchasing them at such sale, acquire any title thereto as against his landlord. Carithers v. Weaver, 7 Kan. 110. But a tenant at will may at any time abandon his tenancy, and then take the same prop- erty by purchase from another, so as to avail himself of the statute of limitations; but the abandonment must be brought home to the knowl- edge of his landlord. Hudson v. Wheeler, 34 Tex. 356. A person who was in possession of land when the lease was made is estopped from set- ting up that the lessor holds the title merely as his trustee, Lucas v. Brooks, 85 U. S. (18 Wall.) 436, 21 L. Ed. 779. For instances where, ac- cording to the rule in California, a tenant may set up a paramount title when he was in possession when the lease was made, see Peralta v. Gin- oehio, 47 Cal. 459; Holloway v. Gal- liac, id. 474; Franklin v. Mereda, 35 Cal. 558; Tewksbury v. Magroff, 33 Cal. 237. The rule only extends to the lessor and his privies in blood or estate; as against a stranger, the ten- ant may set up title in himself or a, third person. Cole v. Maxfield, 13 Minn. 235. A person in possession of premises which are sold or set off upon an execution against him, be- comes so far a quasi tenant as to be precluded from disputing the title of the purchaser upon execution while he is in possession, but not if he is not in possession. Wood v. Turner, 26 Tenn. (7 Humph.) 517. A person who enters as suib-tenant, although he subsequently acquires a perfect title to the lands, cannot set up such title against his lessor without first surrendering possession to him. He 1284 Statutes op LiMiTATioisr, lease,* or unless the lease was made for purposes in violation of law, or of improvements upon public lands specially reserved from sale so that the lessor's possession was unlawful.* The fact that the lease is void,^ or that the lessor had no title whatever,^ or that the title was really in the lessee, and he was ignorant of the fact when must give up the advantage which he derived under the tenancy by being let into possession, before the estop- pel is removed. Cullender v. Sher- man, 27 N. C. (5 Ired. L.) 711; Free- man V. Heath, 35 N. C. (13 Ired. L.) 498; Millhouse V. Patrick, 6 Rich. (S. C.) 350. The rule applies v?here a party takes an undivided half of premises as purchaser, and the other half as tenant. In such a case he is estopped from denying the title of his lessor to the half leased to him. Clark V. Crego, 47 Barb. (N. Y.) 599. 3. Lively v. Ball, 41 Ky. (2 Mon.) 53. See Mays v. Ihvight, 84 Pa. 463; Hamilton y. Marsden, 6 Binn. (Pa.) 45 ; Brown v. Dysenger, 1 Rawle (Pa.) 408; Baskin v. Seechrist, 6 Pa. St. 154. If a person falsely repre- sents himself to be the owner of premises, and thus induces a person to take a lease from him, the tenant is not estopped from denying such person's title. Gleim v. Rise, 6 Watts (Pa.) 44. See JenckeS v. Cook, 9 R. I. 520. See Gallagher v. Bennett, 38 Tex. 291; Alderson v. Miller, 15 Gratt. (Va.) 279; Pearce V. Nix, 34 Ala. 183; Alderson v. Mil- ler, 15 Gratt. (Va.) 279. If it is shown that the tenant was induced to attorn to the plaintiff as landlord, in consequence of the plaintiff's fraud or misrepresentation, he is not estop- ped. Schnetz v. Arratt, 32 Mo. 172; Tison V. Yawn, 15 Ga. 491. Indeed, the rule may be said to be that the teuaat is never estopped from show- ing that the tenancy was induced by fraud, misrepresentation, or misap- prehension. Swift V. Dean, 11 Vt. 233, Cramer v. Carlisle Bank, 3 Grant's Cas. (Pa.) 267; Smith v. Mc- ■Curdy, 3 Phila. (Pa.) 488; or other- wise imfairly obtained. Brown v. Dyserger, supra; Isaac v. Clarke, 2 Gill (Md.) 1; Miller v. Bonsadon, 9 Ala. 317. See Satterlee v. Matthew- son, 13 S. & R. (Pa.) 133. 4. Dupas V. Wassell, 1 Dill. (U. S.) 213. 5. Bryne v. Beeson, 1 Dougl. (Mich.) 179; Heath v. Williams, 25 Me. 209; King v. Murray, 28 N. C. (6 Ired. L.) 62. See Shriver v. Shri- ver, 86 N. Y. 575; Miner v. Beekman, 50 N. Y. 337. 6. Bowdish v. Dubuque, 38 Iowa, 341. A tenant under a lease from one having possession and control of the premises but no title to them (which lease contains a clause that, in case lessors should cease ixi con- trol or own the property, no rent should be paid unless their successors should in writing confirm the lease), by holding under and paying rent to the successive assignees of the owner, is estopped from denying that they are assignees of his original lessor, and continues bound to pay rent to them in that character, or as having, by the instruments of confirmation, become new lessors. Whalin v. White, a5 N. Y. 462; Flanders v. Train, 13 Wis. 596; Jackson v. Wheedon, 1 E. D. Sm. (N. Y. C. P.) 141. Adverse Possession and Real Actions. 1285 the lease was made, will not change the rule.' Nor is the rule changed although the lease was made to defraud the landlord's creditors.^ But, in order to subject a party to this rule, the rela- tion of landlord and tenant must exist. By this it is not meant that the party must be in under a lease, or that he must pay rent; but if he is in possession by the permission of the owner, and has recognized his title in any way, it is enough.' A tenant in law, as a tenant by dower, elegit, or curtesy, is estopped when- ever the person from whom his title is derived would have been;^" and the rule also applies to a person who goes in under an agreement for a lease, or under a contract for the purchase of the premises, or under any arrangement which operates as a recog- nition of the landlord's title, and as holding under, or in sub- serviency to it.-'--'^ When the estate which the landlord held vests in the lessee, whether by purchase from the lessor or by pur- chase under valid leal proceedings, the tenant may set up this title in defense to any action brought against him by the lessor, either to recover possession of the premises, or to recover after- accruing rent;^ and indeed in all cases it is competent for the 7. In Baker v. Noll, 59 Mo. 265, the omiiig, etc., Co. v. Price, 81 Pa. 156. tenant took a lease of the plaintiff 10. Love v. Dennis, Harp. (S. C.) who held the lands as trustee of the 70; BuflFerlow v. Newsom, IB N. C. tenant's wife, but of which fact the (1 Dev. L.) 308; Gorham v. Brenon, tenant was ignorant when the lease 13 N. C. (2 Dev. L.) 174. The tenant was made. The court held that he of a tenant by dower is estopped from was estopped. In Abbott v. Crom- disputing the title of the intestate, artie, 72 N. C. 292, the tenant was, in Clarke v. Clarke, 51 Ala. 498. A fact, entitled to the lands as a home- tenant in possession under a lessor stead, but he was ignorant of the fact whose lands are sold on execution when the lease was made. The court may, however, set up the title of the held that he was estopped. But con- purchaser, in defense to an action tra, see Cain v. Gimon, 36 Ala. 168; for the rent accruing after the sale. Shultz V. Elliott, 30 Tenn. (11 Lancashire v. Mason, 75 N. C. 455. Humph.) 183. 11. Dubois v. Mitchell, 33 Ky. (3 8. Steen v. Wadsworth, 17 Vt. Dana) 336; Love v. Edmston, 23 N. 297. C. (1 Ired. L.) 152. 9. See Downer v. Ford, 16 Oal. 345 ; 12. Ryder v. Manzell, 66 Me. 197 ; Ward V. Mcintosh, 12 Ohio St. 231; Shields v. Lozear, 34 N. J. L. 496, 3 Flanders v. Train, 13 Wis. 596; Wy- Am. Eep. 256. 1286 Statutes of Limitation. tenant to show that the landlord's title has terminated, as, that the premises have been sold luider forclosure proceedings,^^ un- der execution,-*^* or for taxes,-^^ or indeed that the title of the 13. It is competent for him to show that they were sold upon a mortgage given to himself, and that he became the purchaser at such sale, or that the condition upon which the mort- gage to him was given is broken. Shields v. Lozear, supra; Pope v. Biggs, 9 B. & C. 245 ; Watson v. Lane, 11 Exch. 769; or where his title has been extinguished in any manner sub- sequent to the making of the lease, Camp V. Camp, 5 Conn. 291; Jackson V. Rowland, 6 Wend. (N. Y.) 666; Wheelock v. Warschauer, 21 Cal. 309 ; Randolph v. Carlton, 8 Ala. 606; Mc- Devitt V. Sullivan, 8 Cal. 592; De- va«ht V. Newsom, 3 Ohio 57; Walls V. Mason, 5 111. 84; Lawrence v. Mil- ler, 1 Sandf. (N. Y.) 516; Tilghman V. Little, 13 111. 239; Ryers v. Far- well, 9 Barb. (N". Y.) 615;- Kinney V. Doe, 8 Blackf. (Ind.) 350'; Hoag V. Hoag, 35 N. Y. 469 ; Casey v. Greg- ory, 52 Ky. (13 B. Mon.) 346; Greg- ory V. Crab, 41 Ky. (2 B. Mon.) 234; Homer v. Leeds, 25 N. J. L. 106; Hintz V. Thomas, 7 Md. 346; Giles v. Ebsworth, 10 Md. 333; Howell T. Asbmore, 22 N. J. L. 261; Wolf v. Johnson, 30 Miss. 513; England v. Slade, 4 Johns. (N. Y.) 682; Russell V. Allard, 18 N. H. 222; Purtz v. Cuester, 41 Mo. 447. After a judg- ment of eviction against the tenant, he may, without the landlord's con- sent, attorn to the successful party, although he has not actually been evicted, Moffat v. Strong, 9 Bos. (N. Y. Sup. Ct.) 57; Lunsford v. Turner, 28 Ky. (5 J. J. Mar.) 104; Foster v. Morris, 10 Ky. (3 A. K. Mar.) 609; or he may show that the premises have been sold under a mortgage, ex- ecution, or for taxes. Shields v. Lo- zear, 34 N. J. L. 496; Doe V. Ash- more, 261. And if the sale is subse- quently set aside, he may dispute the title of the purchasers and attorn to his original landlord. Miller v. Williams, 15 Gratt. (Va.) 213. This is upon the principle that if one in possession, under claim of title, is, by fraud or mistake, induced to be- lieve that another has a better title, and thereupon to take a lease from him, the tenant will not be estopped. Alderson v. Miller 16 Gratt. (Va.) 279. 14. Doe V. Ashmore, 22 N. J. L. 162. And he may set up the title of the purchaser under execution against the landlord in any action brought by the landlord, for matters accruing or occurring after such sale. Lan- cashire V. Mason, 75 N. C. 455. 15. If the lessee buys in the whole or a part of the lessor's title at a tax or execution sale, or by private pur- chase, it is a proportionate defense to a suit for rent or ejectment. Nel- lis V. Lathrop, 22 Wend. (N. Y.) 121; Elliott V. Smith, 23 Pa. 131; George v. Putney, 58 Mass. (4 Cush.) 35«; Bettison v. Budd, 17 Ark. 546; Carnley v. Stanfield, 10 Tex. 546. But if the tenant contracted to pay the taxes, he cannot set up a tax title against the landlord. Carithers v. Weaver, 7 Kan. 110. ■Advebse Possession aub Real Actions. 1287 landlord has, from any cause, expired.^^ So- a fenant is not es- topped when he has been induced to take a lease from the land- lord by his fraud or misrepresentation," or under a misapprehen- sion or mistake.^^ Neither is he estopped from setting up a paramount title in another, where he has been evicted, or a judg- ment of eviction has been obtained against him,^' nor when ,the payment of rent by him was merely grauitous.^* The estoppel only exists during his tenancy, express or implied. After that is ended, whether by surrender or otherwise, he may set up title in himself or in a third person,^^ and, as a tenant for years holding over after his term is treated as holding upon the terms of the former lease, he remains subject to the estoppel.^ § 266. Co-tenants. Prima facie, the possession of one tenant in common is the possession of all,^ consequently acts done upon the common prop- 16. Doe V. Seaton, 2 Cr. M. & R. 728. 17. Gleim v. Rise, 6 Watts (Pa.) 44; Swift V. Dean, 11 Vt. 323; Bas- kin V. Seechrist, 6 Pa. 154. 18. Schultz V. Elliott, 30 Tenn. (11 Humph.) 183. 19. Mofifatt V. Strong, 9 Bos. (N. Y. Sup. Ct.) 57; Foster v. Morris, 10 Ky. (3 A. K. Mar.) 609; Metcher v. McFarlane, 12 Mass. 43; Allen v. Thayer, 17 Mass. 299. 20. Shelton v. Carrol, 16 Ala. 148. 21. Page V. Kinsman, 43 N. H. 328 ; Carpenter v. Thompson, 3 N. H. 304. If there is no tenancy, there is no estoppel. Hughes v. Clarksville, 31 U. S. (6 Pet.) 369, 8 L. Ed. 430; Eoust V. Trice, 53 N. C. (8 Jones L.) 290; Head v. Head, 52 N. C. (7 Jones L.) 620. 22. Stoops V. Delain, 16 Mo. 162 Longfellow v. Longfellow, 54 ile. 240 Wilson V. James, 79 N. C. 349 Wood's Landlord and Tenant, 368 et seg. 23. Peaceable v. Reed, 1 East, 568; Doe V. Hcllings, 11 id. 49; Atkyns v. Horde, 1 Burr, 111; Ewer v. Lowell, 75 Mass. (9 Gray) 76; Higbee v. Rice, 5 Mass. 351; Whiting v. Dewey, 32 Mass. (15 Pick.) 428; Jackson v. Brink, 5 Cow. (N. Y.) 484; Strong V. Cotter, 13 Minn. 82; Story t. Saimders, 27 Tenn. (8 Humph.) 663. The possession of one tenant in com- mon is never pr^umed to be adverse, but the contrary. Berthold v. Fox, 13 Minn. 501; Owen v. Morton, 24 Cal. 373; Small v. Clifford, 28 Me. 213; White v. Wilkinson, 2 Grant (Pa.) 249; Buckmaster v. Needham, 23 Vt. 617; Challefoux v. Ducharme, 4 Wis. 554; Cunningham v. Robert- son, 31 Tenn. (1 Swan) 138; Van Bibber, v. Frazer, 17 Md. 136. But from a long period of exclusive oc- cupation disseisin may be presumed. Purcell V. Wilson, 4 Gratt. (Va.) 16. 1288 Statutes of Limitatioit. erty by one co-tenant, wliieli if done by a stranger to the title would amount to a disseisin, are susceptible of explanation consistently with the true title; and mere acts of ownership exercised by one co-tenant are not, of themselves, necessarily acts of disseisin, nor do they warrant a presumption of ouster.^* But if one tenant in common enters upon the whole land, and takes the entire profits, claiming and holding exclusively for the full statutory period, an actual ouster of his co-tenants may be presumed.^" But the mere pernancy of the profits for that period, of itself, does not amount to conclusive evidence of an ouster,^ because that is susceptible of explanation consistently with his rights as co-tenant. In order to set the statute in motion in his favor, he must absolutely deny the title of his co-tenants,^'' or by other notorious acts indicate his intention to claim and hold the estate exclusively. There must not only be an exclusive possession, but the possession must be under a claim of title to the whole estate, either brought home to the knowledge of the other tenant, or so notorious that his knowl- edge of such adverse claim can be presumed.^* And the evidence must be much stronger than would be required to establish a title 24. Parker v. Locks & Canals, 44 pernancy of the profits for a long Mass. (3 Met.) 9; Bolton v. Hamil- period, as forty years, is evidence ton, 3 W. & S. (Pa.) 294; Calhoun from which an adverse claim may be V. Cook, 9 Pa. 236; Brovra v. Mc- inferred. Chambers v. Pleak, 36 Ky. Coy, 2W. &iS. (Pa.) 307, n.; Phillips (6 Dana) 4a6. V. Gregg, 10 Watts (Pa.) 158; Hart 27. Kathau v. Rockwell, 16 Hun V. Gregg, 10 Pa. 185; Keyser v. (N. Y.) 96. Evans, 30 Pa. 507; Forward v. Deetz, 28. Van Bibber v. Frazer, 17 Md. 32 Pa. 69. 136; Andres v. Andres 31 N. C. (9 25. Frederick v. Gray, 10 S. & E. Ired.) 214; Forward c. Deetz, 32 (Pa.) 183; Susquehanna, etc., E. E. Pa. 69; Crane v. Eabinson, 21 Conn. Co. V. Quick, 61 Pa. 338; Eider v. 379; Larman v. Hoey, 52 Ky. (13 B. Maul, 46 Pa. 376; Mehaffy v. Dobbs, Mon.) 436; Colburn v. Mason, 25, Me. 9 Watts (Pa.) 363; Workman v. 434; Gill v. Fauntleroy, 47 Ky. (8 B. Guthrie, 29 Pa. 495; Law v. Patter- Mon.) 177; Abercrombie v. Baldwin, son, 1 W. & S. (Pa.) 184; Cummings 15 Ala. 363; Peck v. Ward, 18 Pa. V. Wyman, 10 Mass. 464. 506; Meredith v. Andres, 29 N. C. 26. Higbee v. Rice, 5 Mass. 351; (7 Ired.) 5; Johnson v. Tuolumne, Bolton V. Hamilton, 2 W. & S. (Pa.) 18 Ala. 50; Newall v. Woodruff, 30 294; Calhoun v. Cook, supra. But Conn. 492. •AnvEEtSE Possession and Real x\ctions. 1289 by possession by a stranger.^ "What constitutes an actual ouster is a mixed question of law and fact. If one co-tenant goes into pos- session of the entire estate under a notorious claim of title to the whole, and resists or denies the right of his co-tenant to enter and persistently and notoriously excludes him from the enjoy- ment of the premises, this is an ouster.^" So, too, if one co-ten- ant erects a building upon the estate without the knowledge or consent of the other, and occupies it exclusively, and does, upon the estate, acts such as clearly and unequivocally indicate a claim of exclusive ownership, this is an ouster of his co-tenant.^^ So it has been held that the erection of a dam upon the sole estate of one tenant, which floods the lands of the joint estate, is an ouster.'^ But a mere cutting of trees and converting them to his own use,^' or cutting the grass and removing fences,^* the plowing up of crops, ^^ the removal of fixtures,^^ or, indeed, the doing of any acts which may be referred to' his right, are not regarded as amounting to an actual expulsion, or as an ouster.^' So, if one defendant executes a mortgage of the entire estate,^^ or a deed of his interest, it is not an ouster,^ But a conveyance by one of the 29. Barrett v. Coburn, 60 Ky. (3 39. Porter v. Hill, 9 Mass. 34; Met.) 510; Newell v. Woodruff, 30 Roberts v. Morgan, 30 Vt. 319. Where Conn. 492. one tenant does an act amounting to 30. Thomas v. Pickering, 13 Me. a destruction of a portion of the es- 337; Forward v. Dietz, 33 Pa. 69. tate, or a serious injury thereto, his 31. Bennett v. Clemence, 88 Mass, co-tenant may have an action on the (6 Allen) 10. case against him therefor, but can- 32. Jones v. Wetherbee, 4 Strob. not maintain trespass, Anders v. Mer- (S. C.) 50. • edith, ZO N. C. (4 D. & B.) 199; 33. Wait V. Richardson, 33 Vt. 190. Odiorne v. Lyford, 9 N. H. 503; Gt. 34. Booth v. Adams, 11 Vt. 156. Falls Co. v. Worcester, 15 id. 412; 35. Harman v. Gardiner, Hemp. Cowles v. Garrett, 30 Ala. 341; Gyn- (S. C.) 430. ther v Pettijohn, 38 N. C. (6 Ired.) 36. Gibson v. Vaughn, 2 Bailey (S. 388; as for the erection of a dam on C.) 389; McPherson v. Seguine, 14 his own estate which floods the joint N. C. (3 Dev.) 153. estate, Jones v. Wetherbee, 4 Strob. 37. Booth V. Adanis, supra. (S. C.) 50; Odiorne v. Lyford, supra; 38. Wilson v. Callinshaw, 13 Pa. Gt. Falls Co. v. Worcester, supra; 876; Harman v. Hannah, 9 Gratt. Hutchinson v. Chase, 39 Me. 508; or (Va.) 146. for diverting water from a mill owned 12a0 Statutes of Limitation. entire estate,*" or devising it by will/^ or, indeed, any act wMcli clearly indicates an intention on Ms part to usurp the entire estate to himself, is an ouster j*^ and the question as to whether his acts accrue to the benefit of the joint estate, or as an ouster and dis- seisin of the others, is a question for the jury.*^ § 267. What possession will sustain constructive possession. In all cases, in order to entitle a person to the benefit of the doctrine of constructive possession vs^ho claims under a color of title, there must be an entry upon, and an actual possession of, some part of the land covered by his title, with the palpable intention to claim and hold the land as his own;** and an actual possession of adjoining land will have no effect to entitle a person to the benefits of a constructive possession.*^ There must in all Pillsbury v. 47 Mass. (6 V. Locks & Pick.) 246; Mass. ( 10 by two in common, Moore, 44 Me. 144. 40. Marcy v. Marcy, Met.) 360; Kittredge Canals, 34 Mass. {17 Bigelow V. Jones, 37 Pick.) 161. 41. Miller v. Miller, 60 Pa. 16. 42. Cummings v. Wyman, 10 Mass. 464. 43. Lefavour v. Homan, 85 Mass. (3 Allen) 354; Parker v. Locks & Canals, supra; Cummings v. Wyman, supra. As a deed from one tenant in com- mon of a part of the common estate by metes and bounds is not absolu- tely void, but may be good by way of estoppel against the grantor and his heirs, and is valid against all persons unless avoided by the co-ten- ants, a deed taking effect only as the deed of a disseisor is good, although the title, but for the disseisin, is in him and another as tenants in com- mon. Frost V. Courtis, 172 Mass. 401, 404, 52 N. E. 515. See Old South Society v. Wainwright, 156 Mass. 115, 130, 30 N. E. 476; Kim- ball V. Oom'th Ave. St. Ry. Co., 173 Mass. 152, 53 N. E. 274; Robinson V. Robinson, 173 Mass. 233, 53 N. E. 854. 44. Altemus v. Campbell, 9 Watts (Pa.) 28. An adverse possession of land cannot be extended by construc- tion beyond the limits of the laud actually covered by the conveyance. Pope V. Hanmer, 74 N. Y. 240; En- field V. Day, 7 N. H. 457; Hale v. Glidden, 10 id. 397. As to any lands outside the limits of the conveyance, an actual possession must be shown. Pope V. Hanmer, supra; even though the occupant went into the possession of a wrong lot and improved it un- der a mistake. Hale v. Glidden, supra; Johnson v. Lloyd (N. Y.), MSS. case cited in Pope v. Hanmer, supra. 45. Hale v. Glidden, supra; Pope v. Hanmer, supra; Johnson v. Lloyd, supra; Tritt v. Roberts, 64 Ga. 156; Peyton v. Barton, 53 Tex. 298 ; David- 'Adverse Possession and Real Actions. 1291 cases be an actual entry upon the land animo clamandi posses- sionem, and a visible, notorious, distinct, and hostile possession of a part of it, continued for the entire statutory period.^" The Mud of possession which will be sufficient must depend largely upon the character of the land, the locality, and the purposes to which it can be put. Thus, an entry upon woodland by a person holding a deed, and clearing off a part of it, with an intention of soon making other improvements, has been held sufficient.*' In Maine,*' the doctrine was asserted at an early day, that, in the case of " wild and uncultivated land, the jury were not to expect the same evidence of occupancy which a cultivated farm would pre- sent to them." And where the land is so situated as not to ad- mit of any permanent useful improvement, neither residence. eon V. Beatty, 3 H. & McH. (Md.) 631. A., the owner of a tract of land, sold the western half to B., by metes and bounds. The whole tract was subsequently sold under a void judg- ment for taxes, and C. became the purchaser. He placed a tenant on the eastern half, who remained in possession seven years, claiming the ■whole tract by virtue of the tax sale. There was no visible open possession of the western half by C. It was held that the statute did not bar the right of B., and that the constructive possession of B. was not disturbed by C.'s occupation of the eastern half. Stewart v. Harris, 28 Tenn. (9 Humph.) 714. The occupation of pine land by annually making tur- pentine on it is such an actual pos- session as will oust a constructive possession by one claiming merely under a superior paper title. By- num T. Carter, 37 N. C. (4 Ired. L.) 310. Where a party is in ac- tual possession, and has a right to possession under a legal title which is not adverse, but claims the posses- sion under another title which is ad- verse, the possession will not in law be deemed adverse. Nichols v. Rey- nolds, 1 R. I. 30. In Tritt v. Rob- erts, 64 Ga. 156, it was held that possession of a part of one lot, em- braced in the same deed with other distinct lots, could not be extended by construction to the other lots, un- less the deed was on record, and that prescription as to those lots would only begin to run from the date of the record. 46. Stanley v. White, 14 East 333 ; Doe V. Campbell, 10 Johns. (N. Y.) 477; Ewing v. Burnet, 36 U. S. (11 Pet.) 41, 9 L. Ed. 624; De Lany v. Mulcher, 47 Iowa 445; Scott v. De- lany, 87 111. 146. 47. Scott V. Delany, 87 111. 146. See Thompson v. Burhaus, 79 N. Y. 97. 48. Robinson v. Swett, 3 Me. 316. See Miller v. L. I. R. R. Co., 71 N. Y. 380; Wheeler v. Spinola, 54 id. 377; Miller v Downing, id. 631; Ar- gotsinger v. Vines, 83 N. Y. 308. 1292 Statutes of Lxmitatioit. cultivation, nor actual occupation are necessary where the con- tinued claim to the premises is evidenced by notorious acts of ownership, such as a person would not exercise over lands which he did not own.^ It is not necessary that the occupation should he such that a mere stranger, passing by the land, would know that some one was asserting title to a dominion over it. It is not necessary that the land be cleared or fenced, or that any building be put upon it.^* The possession of land cannot be more than the exercise of exclusive dominion over it. This possession or dominion cannot be the same or uniform in every case, and there may be degrees even in the exclusiveness of the exercise of ownership. The owner cannot literally occupy a whole tract; he cannot stand upon all of it or hold it in his hands. His possession must be indicated by other acts, and these acts must vary according to the circumstances of each case. When one enters upon land under color of title and with claim of ownership, any acts of user which are continuous and which indicate unequivocally to the neighborhood in which the land is situated that it is appropriated exclusively to his individual use and ownership, such entry is sufficient to render the possession adverse.^^ An indispensable requisite to the acquisition of title under statutes of limitation is that the possession must be both adverse and continuous.^^ 49. Baldwin, J., in Ewing v. Bur- acts required must depend upon the net, supra; EUicott v. Pearl, 10 id. uses to which the land is adapted. 412; Moss V. Scott, 2 Dana (Ky.) 50. Ellicott v. Pearl, 10 Pet. (U. 275. In Ewing v. Burnett, supra,, the S.) 412; Davis v. Easley, 13 111. 192; exclusive and notorious use of a valu- Brooks v. Bruyn, 24 id. 372 ; Booth able sand-bank was held sufficient to v. Small, 2-5 Iowa 177; Langworthy give title by adverse possession, and v. Myers, 4 id. 18 ; Ewing v. Burnett, that the erection of a fence or the 11 Pet. 41. making of improvements was not 51. Morse, J., in Murray v. Hudson, necessary, but that any acts under a 9 Western Hep. (Mich.) 347. claim of right, visible and notorious, 62. Albut v. Nilson, 89 Mo. 536. are sufficient, and the nature of the Adverse Possession ajs^d Ebal Actions. 1293 The ground upon which the statute proceeds is, that the owner of the legal title has been ousted of his possession, and has ac- quiesced therein; and the acts necessary to sustain this presump- tion must be of such a visible, notorious, and hostile character as to operate as a notice to all parties that the person is in pos- session as owner. ^^ And it would seem, under the theory relative to the acquisition of such title by constructive possession, that the extent of his claim must be clearly indicated by some of the insignia of boundaries, as marked trees upon the lines, the erec- tion of a fence, the establishment of corners by stakes and stones, or some other equally decisive evidence of the limits of his claim, or that his deed must accurately describe the premises and be recorded ; as in no other way could publicity be given to the limits of the possession, or the extent of the claim be ascertained.^* Actual residence by the claimant or his tenant upon the land is not necessary to continue possession or occupancy. It is only necessary that the claimant should maintain continuous dominion over the land, manifested by continuous acts of ownership accord- ing to the purposes for which the land is adapted, and according to the custom of the country.^^ Thus, the open, notorious, and 53. Blood V. Wood, 42 Mass. (1 Leach, 19 Pa. St. 265, yet it is hard- Met.) 528. Thompson v. Burhaus, 79 ly believed that that would be suflB- N. Y. 101, questions the doctrine of cient, if it was simply nailed to a Wood V. Banks, 14 N. H. 101, that tree on the land. Either the claim- an entry upon a lot, with a view of ant or his agent would be required to takin" possession of it under a claim stay on the land, and wave it con- of title, and marking the lines of it tinuously, until the statutory period by spotting the trees around it, is a has elapsed. sufficient possession against one who 54. In Tritt v. Roberts, supra, it has no better right. Passing around was held that the record of the con- land or over it, asserting title ever veyanoe is necessary in some cases to so loud, does not give possession; support constructive possession. Doe and in Lynde v. Williams, 68 Mo. 360, v. Campbell, 10 Johns. (N. Y.) 477. it was held that posting a notice See Riley v. Jameson, 3 N. H. 23. upon land, that a certain person See Corning v. Troy Iron Co., 34 claimed it, did not amount to a pos- Barb. (N. Y.) 529. sessory act. Although in one case it 55. Coleman v. Billings, 89 111. 183 ; was said that the claimant "must Thompson v. Burhaus, supra; Ford keep his flag flying." Stephens v. v. Wilson, 33 Miss. 490; Miller v. 1294 Statutes of LiMiTATioif. exclusive use of a valuable sand bank for the purpose of getting sand is beld sufficients^ So, surveying the land and setting up stakes to indicate the lines and corners, and the erection of a wharf and boat sheds.^^ The mere payment of taxes upon land, while it indicates a claim of ownership, and the extent of the claim, does not of itself amount to possession, nor operate as a substitute therefor.®^ In Illinois, however, by statute, an entry under color of title and payment of taxes for seven years is Piatt, 5 Duer (N. Y.) 272. Where the entry on land was originally in a fiduciary character as agent, it re- quires some decisive act or declara- tion to render the possession adverse. Giving receipts for rent in one's ov?n name is not such an act. Martin v. Jackson, 27 Pa. St. 504. Whether possession is adversary or not de- pends on the circumstances under vrhich it was taken and held, espe- cially the animus of the party hold- ing; and whether with a claim of title, or without any such claim, is a question of fact for the jury. Early V. Garland, 13 Gratt. (Va.) 1. If acts of ownership and possession re- Ued upon as proof of a title by dis- seisin and not of a nature to work a disseisin, they cannot be made more effectual for that purpose, by proof that they were known and not ob- jectd to by the legal owner. Cook v. Babcock, 65 Mass. (11 Cush.) 206. An obstruction of part of a space, over all which A. claims a right of way by adverse user, does not defeat A.'s right to pass over the way as reduced in width. Putnam v. Bowker, 65 Mass. (11 Cush.) 542. Occupation by the grantee in a deed, with the con- sent of the grantor, of premises more extensive than those conveyed to him by the deed, for a less period than that required by the statute to bar all claims, does not give the grantee any title as to the land not included in the deed. Clark v. Baird, 9 N. Y. 183. The burden of proving an ad- verse possession is on the party claiming the easement. Hammond v. Zehner, 23 Barb. (N. Y.) 473. Pos- session taken under color of title is in law possession of all the land de- scribed in the deed conferring such color of title, lying in the same tract; but, in order to make such possession effectual to the party claiming title under it, it must be open, visible, ex- clusive, and notorious, calculated to give notice to the owner of an ad- verse claim thereby to the land. Lit- tle V. Downing, 37 N. H. 355. 56. Ewing v. Burnet, 36 U. S. (11 Pet.) 41, 9 L. Ed. 624. 57. Congdon v. Morgan, 14 S. C. 587. 58. Cornelius v. Giberson, 25 N. J. L. 1; Sorber v. Willing, 10 Watts (Pa.) 141; Eeed v. Field, 15 Vt. 672; Naglee v. Albright, 4 Whart. (Pa.) 291; Chapman v. Templeton, 53 Mo. 463; Hoekenbury v. Snyder, 3 W. & S. (Pa.) 240; Paine v. Hutch- ins, 49 Vt. 314. Taken in connection with other acts, the payment of taxes is a fact proper to go to the jury, as tending to establish adverse posses- sion. Draper v. Shoot, 25 Mo. 197. I 'Adveese Possession and Real. Actions. 1295 sufficient to perfect a title under the statute ; and, indeed, it would doubtless be held in all the States that if the owner has abandoned his land, and permits another, under color of title for the re- quisite statutory period, without objection, and without entry upon the land, to pay the taxes thereon, that circumstance, accompanied by proof of an actual entry made by the claimant, and possession of some part of the premises, and the establishment of well-do- fined boundaries, would be treated as such actual possession as would overcome the constructive possession of the owner of the legal title. ^^ Thus, where a person entered upon lands under color of title, made a survey, marked his lines, paid taxes, and used a part of the woodland for erecting a saw-mill, it was held that he, by such acts, acquired a title by adverse possession co-extensive with his boundaries.^ But such constructive possession may be restricted and reduced by acts and declarations of the occupant, that he does not claim title extensive with his survey. The record of a survey affords no evidence of title or possession, nor does the marking of trees around the land as surveyed f^ but it is evidence of the claim of the person for whom it was made;*^ and the same is true as to the payment of taxes upon land. That circumstance of itself, however, has no tendency to prove an adverse possession of the land, but it is evidence of an adverse claim thereto ;^^ and even in Illinois, although the payment of taxes for seven years under color of title gives title under certain circumstances, yet it is held that unless it is showa that the lands were vacant and un- occupied during that period the claimant must prove actual occu- pancy by himself or others in his behalf.^^ 59. Farrar v. Fessenden, 39 N. H. 62. Oatman v. Fowler, supra. 368; Eoyer v. Benlow, 10 S. & E. 63. Thompson v. Burhaus, 79 N. (Pa.) 303. Y. 101. But the uninterrupted pay- 60. Heiaer v. Eiehle, 7 Watts (Pa.) ment of taxes for a long period, as 35. See also Shally v. Stahl, 3 W. in this case twenty-four years, was N. C. (Pa.) 418; Thompson v. Mil- held to afford strong evidence of a ford, 7 Watts (Pa.) 442; McCall v. claim of right. Ewing v. Burnet, Coover, 4 W. & S. (Pa). 151; Paine supra. V. Hutching, 49 Vt. 314. 64. Whitney v. Stevens, 89 111. 53. 61. Oatman v. Fowler, 43 Vt. 433. 12&6 Statutes of Limitation. Actual residence, the erection of fences around the lot, the making of improvements upon the land, and the use of it for any purpose to which such land is usually devoted in the section of country in which the land is situated, continuously for the full statutory period, will be sufficient; hut no definite rule can be given which will be applicable in all cases, as the question must necessarily depend upon such a variety of circumstances that the same state of facts which would be held sufficient in one case would be held insufficient in another. In the case of entry and possession under a conveyance, whether recorded or not,*^ the 65. When a man enters on, im- proves, fences, and occupies part of another man's tract of land, and has the boundaries of his claim surveyed and marked, including woodland not inclosed, and for twenty-one years openly and exclusively uses the wood- land as his own, in connection with his improvements, as farmers ordi- narily do, this is not a constructive, but an actual, possession of the wood- land, and excludes the constructive possession usually attributed to the title, and to the owner's actual pos- session of the rest of his tract. Ament v. Wolf, 33 Pa. 331; Wolf V. Ament, 1 Grant's Cases (Pa.) 150. Actual possession or cultivation of part of a tract of land, use of the uninclosed portions as woodland, and payment of taxes on the whole for the statutory period, may constitute title to the whole. Murphy v. Sprin- ger, 1 Grant's Cases (Pa.) 73. So in cases of interference of lines, " in- closing and cultivating part of the interference, and using the residue as adjacent woodland is customarily enjoyed, is actual possession of the whole." In such cases the possession of the real owner, be it actual or con- structive, is ousted by inclosing and cultivating part of the interference, and using the residue as adjacent woodland is customarily enjoyed; and after the statutory period the title is changed. Ament v. Wolf, 1 Grant's Cases (Pa.) 518; Beedy v. Dine, 31 Pa. 13; Nearhoff v. Ad- dleman, id. 279. If the possession of a trespasser is interrupted, the pos- session of the real owner is renewed, and that without actual entry. Cor- nelius V. Giberson, 35 N. J. L. 1. See Byrne v. Lowry, 19 Ga. 27. En- tering upon land at intervals, cutting down trees, deadening timber, and fencing in a cow-pen, nor even the renting of a small part of the lot, does not necessarily draw after it the possession of the whole lot, even if it can be said to be sufficient as to any part of it. Denham v. Holeman, 26 Ga. 182. That merely cutting wood is not enough, see Keller v. Dillon, 26 Ga. 701; Long v. Young, 28 id. 130. The occasional cutting of wood- and boiling sugar on the land has been held not sufficient. Washabaugh V. Entriken, 34 Pa. 74. But see Green v. Kellum, 23 id. 254, where such acts under color of title were held sufficient. To support a title by adverse possession, it suffices that •Adveese Possession and Real Actions. 1297 conveyance itself, and entry under it, is sufficient evidence of the adverse character of the entry and possession; and if the deed is recorded, it is also evidence of the extent of the claim and of its notoriety; hut, except in the case of gores and other vacant lands, it affords no evidence of possession, actual or constructive, upon which a title can be predicated by the lapse of the statu- tory period.*' The constructive possession which is extended over visible and notorious acts of owner- ship are exercised over the premises for the time limited by the statute, and the kind of aets required depends upon the nature and situation of the premises; less evidence will be re- quired when the entry was under a claim of right than when it is a mere intrusion. Draper v. Shoot, 25 Mo. 197. The possession of a vendee after the purchase-money is due is adverse, and if he holds possession for the requisite period, claiming under the purchase, as evidenced by the bond, it is adverse. Eay v. Goodman, 33 Tenn. (1 Sneed) 586. (Totten, J., dissented. ) 66. In Taylor v. Public Hall Co., 35 Conn. 430, the court held that a deed, although it conveyed no title, char- acterized the possession, and ren- dered it adverse against all the world from its date. An entry upon land under a deed, and possession by leas- ing parts of it, and occasionally cut- ting wood upon it during the period required by the statute, although for a few years no acts of ownership were exercised, is a sufficient posses- sion to constitute title. Menkens v. Ovenhouse, 22 Mo. 70. See Beai:p- land T. McKean, 28 Pa. 124; Watts v. Griswold, 20 Ga. 732. Where two parties are in joint pos- session of land, mutually conceding 82 each other's title to respective moie- ties, limitation cannot run in favor of the one having legal title to the whole. MeCammon v. Petit, 35 Tenn. (3 Sneed) 242. One who enters as tenant for life does not hold adverse- ly to the remainderman. Turman v. White, 53 Ky. (14 B. Mon.) 560. Where one is in possession, claiming an adverse title, with only the naked possession to evidence his claim, his title is limited to that portion over which he exercises palpable and contin- uous ownership. Bell v. Longworth, 6 Ind. 273. It is against the policy of the statutes of fraud and limitations to allow a mere intruder, without color or claim of title, to acquire rights on easier terms than those who hold un- der adverse possession. Ball v. Cox, 7 Ind. 453. Possession, to be adverse, must be clearly proved, and must be with such circumstances as are capa- ble in their nature of notifying man- kind that the party is on the land, claiming it as his own, openly and exclusively. McClellan v. Kellogg, 17 111; 498. And a possession is not sub- ordinate, but adverse, to the title of the true owner, wherever it is incon- sistent with the idea of paramount title in another. Morrison v. Hays, 19 Ga. 294. Where a tenant in pos- session dies, adverse possession can- not commence to run against his title 12&8 Statutes of Limitatioit. lands covered by his deed, as an incident to actual possession of a part of the 'land, cannot be extended to lands adjoining which are not embraced within the conveyance;^' but if adjoin- ing owners recognize a particular line as the true line between their lands, when in fact it is not, such acquiescence for the requisite period is binding upon them, if either had a continued, although only a constructive possession of his lot, as such mutual recognition of the line operates as a sufficient color of title.^^ In order to defeat the right of the public in the use of lands which have been dedicated for public use as a common or highway, the lands must not only be enclosed, but also must be used adversely to the public for the full statutory period.^' until the appointment of his admin- istrator. Miller v. Surls, 19 Ga. 331. The acts' of going yearly, for a few weeks at a time, to get rails and other timber from land, though only valuable for timber, do not amount to such an exercise of ownership as will ripen a defective title, or give an action of quare clausum, fregit. Bart- lett V. Simmons, 49 N. C. (4 Jones L.) 295. Nor is an entry for survey. Dil- lon V. Mattox, 21 Ga. 113. To consti- tute an adverse possession, there need not be an exclusive claim to the entire title, nor one necessarily excluding the idea of title in another person. Wicklow v. Lane, 37 Barb. (N. Y.) 244. In Maryland, before the present statute was adopted, actual inclosure for twenty years was essential to the possession of a, tortfeasor to divest the title of the true owner. The act of 1852 provided that " actual inclo- sure shall not be necessary to prove possession, but acts of user and own- ership other than ' inclosure may be given in evidence to prove posses- sion." It was held that this last, without having a retroactive opera- tion, could have a constitutional effect as a change of remedy. Thistle V. Frostburg Coal Co., 10 Md. 129. The entry of a person not having a perfected title, and collecting rent, will not operate as an interruption of the occupant's possession. Donahue v. O'Connor, 45 N. Y. Superior Ct. 278. G7. Shedd v. Powers, 28 Vt, 653; Grimes v. Ragland, 28 Ga. 123. 68. Clark v. Tabor, 28 Vt. 223; Brown v. Cockerell, 33 Ala. 38. 69. Covington v. McNickle, 57 Ky. (18 B. Mon.) 362. The character of the user must be such as does not comport with the public easement. Hatch V. Vt. Central R. E. Co., 38 Vt. 142. In such a case there must be proof of acts of ownership done with an intent to assert title thereto. Simmons v. Nahant, 85 Mass. (3 Al- len) 316. See Lane v. Kennedy, 13 Ohio St. 42. The use, by the owner of the adjoining estate, of the land between his own and the traveled part of the way, by removing a wall and bank and building another, plant- ing trees, cutting brushwood, digging ■Adverse Possession and Ejeial Actions. 1299 § 268. How adverse possession may be proved. In determining the question of adverse possession, the jury may take into consideration the nature and situation of the land. And the placing of deeds on record, passing over the tract, em- ployment of agents living in the neighborhood to look after it and prevent trespassers upon it, payment of taxes continuously under claim of title, and the like, may be considered by them; and it is not always necessary to prove actual occupation by the claimant; but the acts referred to would not be sufficient of themselves to establish title by reason of adverse possession, un- less the land was unsusceptible of more definite and actual pos- session, or such acts were known to the party holding the legal title, and known to have been done under claim of adverse title."* Where the defendants held under a deed executed less than twenty years before the commencement of an action to recover possession of the land, it was held that evidence to show that more than twenty years before the action was commenced they entered into possession under an executory contract for the pur- chase of the premises, which sale was afterwards consummated by deed, was admissible for the purpose of establishing an adverse possession.'^ A person may acquire title by adverse user, by the occupancy of a tenant, or any person who occupies for him and in recognition of his title.'^ the soil, and placing wood and wag- claimed, and much of it is in the ae- ons upon it, is not an adverse pos: tual occupancy of parties claiming session, such as to found an action and holding adversely. Walsh v. of trespass gi«we clausum against an Hill, 41 Cal. 571. Nor is the mere intruder. Smith v. Slocumb, 77 Mass. fact that a person built a fence (11 Gray) 380. around lands evidence of any posses- 70. Turner v. Hall, 60 Mo. 271; sion or occupation, but the motive Clement v. Perry, 34 Iowa 564; and claim under which he acted Washburn v. Cutter, 17 Minn. 361. should be shown. Eussell v. Davis, Proof of a general inclosure of a 38 Conn. 562. large tract of land is not sufficient 71. Howland v. Newark Cemetery to constitute an actual, exclusive pos- Ass'n, 66 Barb. (N. Y.) 366. See session of a specific parcel within it, Soule v. Barlow, 48 Vt. 132. when it appears that much of the 72. Price v. Jaclcson, 91 N. C. 11. land within the inclosure is not In North Carolina possession of part 1300 Statutes of Limitation. § 269. Continuity of possession. The possession must be continuous during the entire statutory period, and uninterrupted, and the question as to whether or not it has been kept up will depend largely upon the situation and charac- ter of the land, and is a mixed qiiestion of law and fact. " If there be one element more distinctly material than another in conferring title, where all are so, it is the existence of a continuous adverse pos- session for the statutory period;" and if this continuity is broken, no title can be gained under the statute.^^ So absolute is this rule, of the land described in a deed is superior to that of any person who has not superior title. Staton v. Mul- lis, 92 N. C. 623. In Garrett v. Ram- sey, 26 W. Va. 345, where an elder grantee is in the actual possession of part of his land outside of an in- terlock and the junior grantee is in the actual possession of a part of the interlock claiming the whole to the extent of his boundaries, the latter will not be limited in his possession by the possession of the former, but will not be regarded as in possession of all the land in the interlock; but where the deed does not contain defi- nite boundaries, no title of adverse user can be acquired, where the stat- ute makes the occupancy requisite to obtain title dependent upon an occu- pancy under " known and visible boundaries." Elliott v. Dycke, 78 Ala. 150; Groft v. Weakland, 34 Pa. 304. 73. Unbroken continuity of posses- sion is an essential element of an ad- verse holding, such as will ripen into a title under the statute, except when it is interrupted by mere intruders, who are ejected by a prompt resort to legal remedies. Beard v. Ryan, 78 Ala. 37. If the property is of a char- acter to admit of permanent useful improvement, the possession should be kept up during the statutory pe- riod by actual residence, or by con- tinued cultivation or inclosurc, Johnston v. Irwin, 3 S. & R. (Pa.) 291; Royer v. Benlow, 10 id. 303; Jackson v. Schoonmaker, 2 Johns. (N. Y.) 230; either of which will do. Hoey v. Furman 1 Pa. 295. Oc- casional occupancy with payment of taxes will not answer. Sorber v. Willing, 10 Watts (Pa.) 141; Ridd V. City of Philadelphia, 11 Phila. Leg. Int. 84. But if the land is riot such as to admit of residence or im- provement, such use and occupation of it as from its nature it is suscep- tible of, with claim of ownership, is an actual possession. West v. La- nier, 28 Tenn. (9 Humph.) T62. But intention will not be. "He must keep his flag flying." Stephens v. Leach, 19 Pa. 265. The effect given to claim under color of title is, perhaps, not the same in all the States. See Hill V. Saunders, 6 Rich. (S. G.) 62; 3 Smith's Lead. Gas. H. & W.'s notes, 563. Possession must be continuous and adverse, to give title under the statute. Holcombe v. Austell, 19 Ga. 604; Harrison v. Gachelin, 23 Mo. 117; Sharp v. Johnson, 22 Ark. 79; Trapnall v. Burton, 24 Ark. 371; ■Adveese Possession ajsx> Heal Actions. 1301 that even a military order which, directs all persons of a certain nationality to leave the State within a certain time will not save the benefits of a previous possession to one who falls within the terms of the order, during the period of such enforced absence, although the animus revertendi remains, as the courts can make no saving which the statute has omitted.'* The mere erection of a fence around a lot, which it not kept up, is not sufficient to preserve the continuity of possession required. So where one entered on land, and cut logs, split boards, and otherwise pre- pared for building a house on the land, but returned to' his home, which was in another county, and at the end of the succeeding year came back and finished the house, and put his family in it, no other person having had possession during said interval, it was held that the statute of limitations did not run in his favor during such absence.'^ So where a person enters upon land, splits a few hundred rails, encloses and ploughs an acre and a half, then abandons the premises for three years, but at the end of that time returns and occupies the same continuously for four years, he cannot be considered as having maintained such a continuous adverse possession for seven years as is necessary to perfect a title under the statute of limitations.™ Where a person goes into adverse possession, but subsequently, before the statute has run Smith V. Chapin, 31 Conn. 530; Den- keep out cattle, it was held that that ham V. Holeman, 36 Ga. 182; Stump was not sufficient to constitute prima V. Henry, 6 Md. 201; Wheeler v. facie evidence of title to land by ad- Moody, 9> Tex. 372; Story v. Saun- verse possession at common law, or ders, 27 Tenn. (8 Humph.) 863; Mil- under the provisions of the Califor- ler V. Piatt, 5 Duer (N. Y.) 272. nia statute of limitations, or under 74. HaUiday v. Cromwell, 37 Tex. the Van Ness ordinance, as against a. 437. Where evidence was offered that party who entered into possession a fence consisting of small posts with and occupation of a part of the land two rails fastened on them was after the fence had been suffered to placed round a lot of land by the become broken down and decayed- plaintiff, but there was no e\-idence Borel v. Rollins, 30 Cal. 408. of his actual occupation or use of the 75. Bryne v. Lowry, 19 Ga. 27. land, and it appeared that the fence 76. Joiner v. Borders, 32 Ga. 239. was suffered to go to decay in a year See Virgin v. Land, 32 Ga. 573. or two, and to become insufficient to 1302 Statutes of Limitation. in his favor, under threats from the owner that he would com- mence legal proceedings against him, he is induced to surrender possession, such surrender breaks the continuity of his possession, and should he go into possession again, the owner having entered in the meantime, the time of his previous possession would go for nothing." A mere removal from the land, without any inten- tion of abandonding the possession, or the claim to the land, is not necessarily a waiver of a previous adverse possession.'^ The question whether there has been such an abandonment of posses- sion as to break the continuity thereof depends upon the question whether the premises were vacant for such a length of time and under such circumstances that the constructive possession of the owner can be said to have reasserted itself ; and where the defend- ant's grantor vacated the premises a short time before the latter took possession, and it did not appear that during such time he exercised any control or ownership over the land, it was held that 77. Shaffer v. Lowry, 25 Pa. 252; Pederick v. Searle, 5 S. & E. (Pa.) 236. Every element of a title by adverse possession must exist; otherwise the possession will not con- fer title, under the statute of limita- tions. If there be one element more distinctly material than another in conferring title, where all are so, it is the existence of a continuous ad- verse possession for the requisite statutory period. Groft v. Weakland, 34 Pa. 304. Where the owner of a house put lumber and other materi- als on an adjoining lot while build- ing his house; erected steps on the lot for access to his house; used it in going in and out of his house, and for drying clothes; held, not a suffi- cient possession to give title under the statute of limitations. Brolas- key V. Moaain, 61 Pa. 146. 78. Harper v. Tapley, 35 Miss. 506; see Ford v. Wilson, id. 490. A short and reasonable time between the out- going and incoming of persons whose continuous possession in succession is necessary does not break the adverse possession, De la Vega v. Butler, 47 Tex. 529; nor does a temporary ab- sence from the premises for a special purpose. Cunningham v. Patton, 6 Pa. 355; Sailor v. Hertzogg, 10 id. 296. But an abandonment of the premiises, for however short "a period, although with the animus revertendi, will destroy the continuity. Sus- quehanna, etc., E. Co. V. Quick, 6S Pa. 189. Where in an action to recover land, it appeared that the plaintiff, under color of title, had made occasional entries upon the land, at long intervals, for the pur- pose, at one time, of cutting timber, at another, of making bricks, etc., the plaintiff was held not entitled to re- cover. Williams >-. Wallace, 7S N. C. 354. Advebse Possession and Eoiial Actions. 1303 the possession was not continuous, and that the defendant could not avail himself of the possession of his grantor.'^ It is set- tled that a possession which can ripen into a title must not only be notorious, but continued without entry or action by the legal owner for .the full statutory period;^" and, as indicated by the cases already cited, a person who enters upon premises and commits trespasses and then leaves, without keeping up the in- dicia of claim and ownership, does not destroy the effect of the constructive possession of the legal owner, but stands rather in the light of a trespasser than of an occupier under a claim of 79. Tegarden v. Carpenter, 36 Miss. 404. r The landowner is not required to battle continuously and successfully for his rights; in the case of an ease- ment it is sufficient to interrupt its acquisition by adverse user that he assert his claim by an overt act affording a cause of action. Brayden V. New York, etc., R. Co., 173 Mass. S25. But previous possession cannot avail after it has been interrupted. Chicago & Alton R. Co. v. Keegan, 185 111. 70. In general, a slight vari- ation in the user, or a brief interrup- tion in the enjoyment of the easement to its full extent, as when the right to &aw another's land is claimed, and the dam is heightened or strengthened from time to time, or the water is oc- casionally let off through the dam, does not break the continuity of use. Alcorn v. Sadler, 71 Miss. 634. See Chicago & Alton R. Co. v. Keegan, 185 III. 70; Dean v. Goddard, 55 Minn. 290; Elyton Land Co. v. Denny, IftS Ala. 553. But the occupation must be always substantially continu- ous, and such acts as the carrying on of lumbering operations, neces- sarily casual and intermittent, are insufficient to establish a disseisin, though supported by defective tax deeds of the land. Fleming v. Katah- din Pulp & Paper Co., 93 Me. 110; Barr v. Potter (Ky.), 57 S. W. 47S. And a purchase of the property by the demandant at a, tax sale is im- material if the possession is not changed. Harrison v. Dolan, 172 Mass. 396. See IS Harv. L. Rev. 569. The period of time required to ac- quire an easement by adverse use is usually the same as that provided for gaining a title to the land itself by adverse possession. Alcorn v. Sadler, 71 Miss. .634; Hodgkins v. Harring- ton, 150 Mass. 535, 547; Cole v. Brad- bury, 86 Me. 380; Jones on Ease- ments, ch. 7. 80. Hood V. Hood, 2 Grant's Cas. (Pa.) 329; Andrews v. Mulford, 1 Hawy. (N. C.) 320; Park v. Cochran, 1 id. 180; Wickliffe v. Ensor, 48 Ky. (9 B. Mon.) 253; Taylor v. Burnside, 1 Gratt. (Va.) 165; Merriam v. Hays, 19 Ga. 394; Melvin v. Proprietors, etc., 46 Mass. (5 Met.) 15; Christy v. Alford, 58 U. S. (17 How.) 801, 15 L. Ed. 356; Moore v. Collinshaw, 10 Pa. 334. 1304 Statutes of Limitation. title. '^ The possession must also continue as to tte same prem- ises ; *^ in other words, the locality of the possession must re- main the same throughout the entire period.*' But when the statute has once run in favor of the occupant, the title acquired is indefeasible, and is not affected by a subsequent neglect to keep up possession, and neither the legal owner nor a purchaser from him without notice of such adverse title acquire any rights, legal or equitable, from such neglect.** The benefits of a con- structive possession may be lost, where a person, before the statute has run in his favor, sells the part of the land which he actually occupied, and retains the balance. In that case, his possession of the part sold goes for nothing, as to the part occupied, and the grantee does not succeed to it.*^ § 270. How the continuity of the possession may be broken. The continuity of possession may be broken by an entry of the legal owner, by an abandonment of the possession by the occupant, by a subsequent recognition of the ovsmer's title, or an acknowledgment made before the statute has run in his favor that he has and claims no title to the lands occupied. First, an entry by the legal owner upon the land breaks the continuity of an adverse possession, when it is made openly with the intention of asserting his claim thereto, and is accompanied with acts upon the land which characterize the assertion of title 81. Bryne v. Lowry, supra; Borel 6a. 583; Russell v. Slaton, 26 id. 193. v. Eollina, supra. 85. Chandler v. Rushing, 3S Tex. 82. Potts V. Gilbert, 3 Wash. (U. 591. If a person has written evi- S. ) 475. dence of title aud the premises are 83. GriiBth v. Schwenderman, 27 occupied by a tenant, and he subse- Mo. 412. quently sells an undivided half of the 84. Schall V. Williams Valley R. land to the tenant, who remains in Co., 35 Pa. 191. In Georgia it has possession of his half as owner, and been held that if, after having held of the other half as tenant, the ten- possession for the statutory period, ant's possession is the possession of the occupant voluntarily abandons the the landlord, and preserves his pos- possession of the premises, the pre- session. Hanks v. Phillips, 39 Ga. sumption arises that his holding was 550. not adverse. Vickery v. Benson, 26 iAbveese Possession and Real Actions. 1305 or ownership ; ^ and a mere naked entry, which ia made for the purpose of ascertaining whether or not there is any adverse occu- pancy, is not sufficient to break or interrupt the possession.^' The entry must be made openly, with the purpose of asserting his claim thereto, and must be accompanied by acts of ownership which characterize and effectuate the claim; and an entry upon land and cutting wood or timber therefrom, or to plough, to sow, or to reap or to gather the crops thereon, would be such acts.^^ Of 8G. Henderson v. GriflBn, 30 U. S. (5 Pet.) 151, 8 L. Ed. 79. But the entry must be made by the owner. The interruption of mere trespassers, if unknown, will not affect the possession; but if known, and repeated, without legal pro- ceedings being instituted, it is said they become legitimae interrup- tiones, and are converted into ad- verse assertions of right, which, if not promptly and effectually liti- gated, defeat the claim of rightful prescription. Doe v. Eslava, 11 Ala. 1038; Henderson v. Griffin, supra. The mere intrusion of trespassers, not continuing long enough to raise a presumption that it was known to the one in possession, does not break the continuity of his possession. Bell V. Dinson, 56 Ala. 444. Nor is it broken by negotiating with other claimants, if there is no waiver or nonelaim on the occupant's part. 40 Mich. 5^S. Nor by a forcible entry of the legal owner when the restitu- tion is made by law, and the period during which the owner held posses- sion will not be deducted from the occupant's possession. Ferguson v. Bartholomew, 67 Mo. 212. But where the legal owner interrupts possession, and the occupant does not regain possession by legal proceedings, his possession must begin de novo. Steeple v. Downing, 60 Md. 47S. Where a, person purchases land, and the grantor's title failing, he sues for and recovers back the money paid therefor, he cannot set up the posses- sion held by him under such convey- ance to defeat the title of the true owner. Davenport v. Sebring, 53 Iowa 364; Piper v. Slonelcer, 3 Grant's Cas. (Pa.) 113. 87. Bowen v. Guild, 130 Mass. 121. 88. Thus, where an owner of land which was in the adverse occupancy of another went thereon with a pur- chaser to eihow him the land and to ascertain the quantity, quality, and value of the wood thereon, accom- panied by the subsequent execution of deed to the person so entering with him, was held a sufficient entry to break the continuity of the adverse occupant's possession, Brickett v. ■Spofford, SO Mass. (14 Gray) 514; and where an entry was made upon land by the owner, and a deed of the prem- ises was there by him delivered to a purchaser, it was held that the dis- seisin was so far purged by the entry as to give operation to the deed, al- though the grantee knew that the land was claimed adversely. Oakes v. Marcy, 37 Mass. (10 Pick.) 195; Knox V. Jenks, 7 Mass. 488; Warner V. Bull, 54 Mass. (13 Met.) 1. The rule relative to entries under these stat- 1306 Statutes of Limitatioit. course, the bringing of an action of ejectment and a recovery therein, accompanied by an entry, breaks the continuity of pos- session.*'' An entry made by the legal owner, with " high hand " and forcibly, does not defeat the continuity of the possession of an adverse occupant, if he subsequently regains possession by an action for forcible entry and detainer.^" In some of the States, by statute, no entry is sufficient to toll the statute, unless it is fol- lowed by an action within one year from the time it was made;''- and in Texas " peaceable possession " is defined to be that which is continuous, and not interrupted by action.'^ In Massachu- setts and Michigan,^^ an entry must be followed by posses- sion for one year, or by an action brought within one year from the time entry was made. In Kentucky,^* Virginia,'^ and West utes is thus stated : " When a party is once dispossessed, it is not every entry upon the premises without per- mission that would disturb the ad- verse possession. He may tread upon his own soil, and still be as much out of the possession of it there as else- where. He must assert his claim to the land, perform some act which would reinstate him in possession, be- fore he can regain what he has lost. It is evident, therefore, that an entry by stealth, under circumstances that go to show that the party claimed no right to enter, or any entry for other purposes than those connected with a right to enter, would not be su£B,cient to break the continuity of exclusive possession in another." Burrows v. Gallup, 33 Conn. 493. An entry upon land in the possession of another, in order to work a legal interruption of such possession, must be so made as to enable the party in possession, by the use of reasonable diligence, to as- certain the right and claim of the party making the entry. Wing v. Hall, 47 Vt. 183. A claim based on adverse constructive possession under a tax-deed for the three years limited by the statute, may be avoided by the owner by proof of actual use and oc- cupation for any portion of the statu- tory period. Such occupation may be established by proof of his rental of the land to neighboring farmers. Wilson V. Henry, 35 Wis. 341. 89. Groft V. Weakland, 34 Pa. 304. The statute is not suspended by an unsuccessful action of eject- ment not leading to a. change of pos- session. Workman v. Guthrie, 39 Pa. 495; Kennedy v. Reynolds, 37 Ala. 364. 90. Gary v. Edmunds, 71 Mo. 533. 91. Appendix, New York, § 367; North Carolina, § 144; South Caro- lina, § 103; Pennsylvania, § 16; Wis- consin, § 4309; Missouri, § 6765; California, § 330; Nevada, § 6; Idaho, § 403S; Montana, § 31; Arizona, § 5; Dakota, § 43. 92. Appendix, Texas. 93. Appendix, Massachusetts, § 8; Michigan, § 8. 94. Appendix, Kentucky. 95. Appendix, Virginia. 'Adveese Possession and Real Actions. 1307 Virginia,^^ no continual claim upon or near real property pre- serves the right to bring an action therefor. After a party has been evicted under a recovery in ejectment, the continuity of his possession is destroyed, and he cannot keep it up by the payment of taxes on the land, or the assertion of any other claim thereto.'^ Instances may arise where the facts are not controverted, where the question as to whether the possession has been interrupted by entry is properly a question of law for the court, but generally it is a question for the jury in view of all the circumstances.'* Second, the continuity of possession may also be broken by an acknowledgment by the occupant of the owner's title, before the statute has run in his favor, but not after it has run.'' In Georgia it has been held that such an acknowledgment made by a tenant in possession, either before or after the statutory period has elapsed, prevents the running of the statute against the owner of the fee.^ The ground upon which these cases proceed is, that such an admission rebuts the allegation of adverse possession ; but where the possession is shown to have been adverse in fact, and the bar to have become complete before an acknowledgment of title in the legal owner is made, it can have no such effect, especially if it is by parol. A parol acknowledgment of title made while the statute is running must be such as to show that the occupant no longer intends to hold adversely,^ and must refer to the title set up by the occupant.^ Thus, where the statutory 96. Appendix, West Virginia. 99. Bradford v. Guthrie, 4 Brewst. 97. Groft V. Weakland, 34 Pa. 304. (Pa.) 351; London v. Lyman, 1 98. Stevens v. Taft, 77 Mass. (11 Phila. (Pa.) 465. In Bell v. Hart- Gray) 33; O'Hara v. Richardson, ley, 4 W. & S. (Pa.) 33, an acknowl- 46 Pa. 385; Groft v. Weakland, 34 edgment made twenty-one years he- ld. 304; Jackson v. Joy, 9 Johns, fore ejectment was brought was held (N. Y.) 102; Beverly v. Burke, 9 Ga. not admissible. 440; Van Gorden V. Jackson, 5 Johns. I.Long v. Young, 28 Ga. 130; (N. Y.) 440; Jackson ex dem. People Oook v. Long, 27 id. 280. V. Wood, 13 Johns. (N". Y.) 342, 7 2. Sailor v. Hertzog, 4 Whart. Am. Dec. 315; Fisher v. Ptosser, (Pa.) 359; Ingersoll v. Lewis, 11 Pa. Cowp. 317; Mayor of Hull v. Horner, 313; Moore v. Collinshaw, 10 id. 224. id. 103; Peaceable v. Reed, 1 East See Ley v. Peter, 3 H. & N. 101. 568. 3. Farmers' & Mechanics' Bank v. Wilson, 10 Watts (Pa.) 361. 1308 Statutes op Limitatioit. bar was sought to be rebutted by proof of a lease executed by the occupier and the claimant, it was held that it might be shown that the latter held the legal title as trustee for the former, in order to explain the apparent admission of title.* An admission or declaration of a person that he went into possession by per- mission of the owner, or in the exercise of a legal right, and that the owner leased or devised it to him during life, negatives any adverse possession.^ So where a person admits that he holds for the true owner,^ or agrees even by parol to surrender the posses- sion to the legal owner,'' or to hold possession for or under him,* the continuity of possession is broken. So if the tenant of a mere intruder, without color of title, takes a conveyance from the legal owner, and gives a mortgage for the purchase-money, it has been held that this breaks the continuity of the possession, at least as against the holder of the mortgage.^ So if a person in possession of lands adversely under a warrant procures it to be assessed to him in less quantity than is called for in the survey, it is held that the continuity of his possession is thereby broken by detaching from it the landmarks which had sustained it.-*^" So the occupier must continue his possession for the whole period on the same claim; and if before the statute has run he sets up another and different claim, the continuity of his possession is broken, and must begin de novo. And where a party is in the adverse occupancy of land under a statute which gave possession in seven years, where the taxes, etc., are paid by him, he must fully comply with the statutory requirement; and if he permits the land to be sold for taxes during the running of the statute, and afterwards redeems the land under such sale, his possession can only date from the time of redemption.''^ The continuity of possession is broken by a decree directing the occupant to convey 4. Neele v. McElhenny, 69 Pa. 300. 8. Read v. Thompson, 5 Pa. 327. 5. Breidegam v. Hofifmaster, 61 9. Koons v. Steele, 19 Pa. 203. Pa. 223. 10. Clarke v. Dougan, 13 Pa. 87. 6. Criswell v. Altemus, 7 Watts 11. Wettig v. Bowman, 47 111. 17; Pa. 565. Austin v. Bailey, 37 Vt. 219. 7. Moore v. Small, 9 Fa. 194. 'Adveese Possession aitd Real Actions. 1309 the land, although the possession is not disturbed, as the decree has the effect of a voluntary conveyance.-^ Third, the continuity of possession may be broken by a recog- nition of the owner's title during the period that the statute was running.^^ And this may arise in a variety of ways, as by taking a lease from him of the land, or offering to hold the land under him;'^^ offering to purchase or surrender it;^^ or asserting that he gave him the use of the land for a term or for life ; or in any way which admits the superiority of the owner's title, and that the occupant holds under, for, or in subservience to him ; ^'' or when he, in fact, holds under a title which does not give him the fee, although he supposes that it does, and disposes of the estate under that misapprehension.-'^^ Thus, where a widow remains in possession of her husband's lands after his decease, her possession is not adverse to the heirs,^^ even though she buys in an outstand- ing title ; ^^ nor is the possession of the husband adverse to the wife during her lifetime;^ nor of an agent to his principal,^^ — because in all these cases the occupant holds in recognition of a superior title, and in subservience to it. When a person enters by the permission of the owner, or is let in by operation of law in subservience to the title of another, his occupation cannot become adverse without the clearest evidence of a repudiation by him of the owner's title, and of a claim to hold in hostility to it.^^ When a person has entered by the permission of another, and thus be- 12. Gower v. Quinlan, 40 Mich. 19. Iddlng v. Cairns, 2 Grant's Cas. 672. (Pa.) 88. 13. Koons V. Steele, 19 Pa. 203. 80. KUle v. Ege, 79 Pa. 15. 14. Read v. Thompson, 5 Pa. 327. , 21. Comegys v. Carley, 3 Watts And in this case it -was held that this (Pa.) 280. may- be sho-wn by admission to 22. Cadwallader y. App, 81 Pa. strangers. 194; McGinnis v. Porter, 20 id. 15. Moore v. Small, 9 Pa. 194. 86. And a tenant -who holds over 16. Criswell v. Altemus, 7 Watts does not hold adversely until he in (Pa.) 565; Dikeman v. Parrish, 6 id. some manner gives the landlord notice 310. of such an intention. Schuylkill, etc., 17. Tullock y. Worrall, 49 Pa. 133. R. Co. v. McCreary, 58 Pa. 304. 18. Cook V. Nicholas, 2 W. & S. (Pa.) 27; Hall v. Mathias, 4 id. 331. 1310 Statutes of Limitation'. comes a tenant of such person, either by sufferance or at will, even though without rent, every presumption is in favor of a con- tinued holding in that capacity, and he cannot set up an adverse claim until he has in some manner brought the knowledge of his intention home to the person under whom he entered ; ^^ and a re- laxation of this rule cannot consistently be made.^* § 271. Tacking possession. The successive possession of several distinct occupants of land, between whom no privity exists, cannot be united to make up the' period required to perfect title by possession.^^ But if a successive 23. McGinnis v. Porter, supra; McMasters v. Bell, 2 P. & W. (Pa.) 181; Hood V. Hood, 3 Grant's Cas. (Pa.) 229; Martin v. Jackson, 27 Pa. 504. And even if rent was agreed to be paid, but is not for many years, that circumstance does not de- feat the owner's right of entry. Bul- ler's N". P. 104; Saunders v. An- nesly, 2 Sch. & Lcf. 106; Orrel v. Maddox, Eunnington on Eject., Ap- pendix, 1; Doe V. Danvers, 7 East 299. See Jackson v. Davis, 5 Cow. (N. Y.) 123. The right of a tenant to set up the statute to defeat the title of his landlord does not depend upon the landlord's right to receive rent, but upon his right to enter. Failing v. Schenck, 3 Hill (N. Y.) 344. See Williams v. Annapolis, 6 H. & J. (M'd.) 529. In Moore v. Turpin, 1 Speers (S. C.) 32, it was held that, after a great lapse of time, and an omission to pay rent, it might be presumed that the relation of land- lord and tenant existed. 24. Collins v. Johnson, 57 Ala. 304. 25. Pegues v. Warley, 14 S. C. 180; Rutherford v. Hobbs, 63 Ga. 243; Schrack v. Zubler, 34 Pa. 38. But in South Carolina the right to tack successive possessions is con- fined to cases between landlord and tenant, and disseisors and their heirs. King v. Smith, Eice (S. C.) 11. In Potts V. Gilbert, 3 Wash. (U. S.) 475, it was held that there could be no tacking of possession to make out title by adverse use, because, as he in- sisted, such a possessor has nothing to convey. But this case has never been recognized as embodying the true doctrine. Moore v. Small, 9 Pa. 194. See Overfield v. Chris- tie, 7 S. & E. (Pa.) 177; Durel V. Tennison, 31 La. Ann. 538. If the continuity be broken, either by fraud or a wrongful entry, the protec- tion given by the statute is* lost ; and a party cannot add to his own posses- sion that of the one who preceded him', when he did not enter into pos- session under or through such pre- decessor. San Francisco v. Fulde, 37 Cal. 349. There must be privity of grant or descent, or som« judicial or other proceedings which shall con- nect the possessions so that the lat- ter shall apparently hold by right of the former; but not even a writing is necessary if it appears that the holding is continuous and under the 'Adverse Possession and Eeal Actions.- 1311 privity exists between them, the last occupant may avail himself of the occupancy of his predecessors.^" Thus, where one of two joint tenants, after the death of the other, purchased the land at partition sale under an order of court, and paid the amount of his bid, but took no deed, it was held ^ that his possession thereafter might be added to the time of the joint possession of him and his co-tenant to make up an adverse possession of the necessary length to bar an entry. ^^ But even an innocent purchaser cannot tack to his owfi first entry; and this doctrine applies not only to actual but constructive possession under color of title. Cris- pen V. Hannavan, 50 Mo. 536. 26. In such case the occupant has merely to prove that the possession has been legally continued from one holder to another, as the term of en- joyment is deemed uninterrupted from ancestor to heirs, and from ven- dor to vendee. Cole v. Bradbury, 86 Me. 380, 383; Leonard v. Leonard, 89 Mass. (7 Allen) 280; Kepley v. Scully, 185 111. 52; Smith v. Reich, 30 N. Y. S. 167; Sutton V. Clark (S. C), 38 S. E. 150; Davock v. Nealon, 58 N. J. L. 21; Eeid v. Anderson, 13 App. D. C. 80; Costello v. Harris, 162 Pa. 397; Hickman v. Link, 97 Mo. 482; Adair v. Mette, 156 Mo. 496; Eobin- son V. Allison (Ala.), 27 So. 461; Collier v. Gouts, 92 Tex. 234, 14 Harv. L. Rev. 72. So when a dis- seisor leases the land to a tenant who continues to occupy it under his lease, the tenant's adverse possession may be tacked to the landlord's, his possession being that of the landlord. Holmes v. Turner's Falls Co., 150 Mass. 535, 547. 27. Oongdon v. Morgan, 14 S. C. 587. A party cannot connect his pos- session of the land previous to ob- taining a deed with his subsequent possession under a deed, to make out the seven years. Barnes v. Vickers, 59 Tenn. 370. A son's possession of land after the death of his father may be presumed to be for the bene- fit of the father's estate. Alexander V. Stewart, 50 Vt. 87. From an ad- verse possession of land for thirty years, the law presumes a grant from the State, without a privity or con- nection among the successive tenants. Davis V. McArthur, 78 N". C. 357. Actual possession by prior occupants claiming title, although having no color of title, will avail a subsequent occupant under color of title, claim- ing under such prior occupants, in making out a possessory title in him- self. Day V. Wilder, 47 Vt. 584. See ShuflHeton v. Nelson, 3 Sawyer (U. S.) 540. 28. In Durel v. Tennison, 31 La. An. 536, it was held that a elaimajit might tack to his own possession that of his grantor to make out prescrip- tion. In Texas, if the possession of two or more parties in succession, holding in privity with each other, under title or color of title, make out the prescribed term, the bar is com- plete. Christy v. Alford, 58 U. S. (17 How.) 601, 15 L. Ed. 256. So, also, in Tennessee. Lea v. Polk Coun- ty Copper Co., 63 U. S. (21 How.) 494, 16 L. Ed. 303; Uoswell v. De la Lanza, 61 U. S. (20 How.) 29, 15 L. 1312 Statutes of Limitation. possession that of his grantor, which originated in fraud of the true owner/^ nor the possession of a person which was not adverse. In order to create the privity requisite to enable a subsequent occupant to tack to his possession that of a prior occupant, it is not necessary that there should be a conveyance in writing. It is suificient if it is shovm that the prior occupant transferred his possession to him, even though by parol.^" So, too, the posses- Ed. 834; Benson v. Stewart, 30 Miss. 49; Morrison v. Hays, 19 Ga. 294; Chouquette v. Barada, 23 Mo. 331; Shaw V. Nicholay, 30 Mo. 99; Chad- bourne V. Swan, 40 Me. 260. A wife has no such privity of estate with her husband, in land of which he died in an adverse possession to the real owner, that her continued adverse possession after his decease can be tacked to his, to give her a complete title by disseisin. Sawyer v. Kendall, 64 Mass. (10 Gush.) 341. See Holton V. Whitney, 30 Vt. 405. One who purchases at an administrator's sale land which the decedent occupied, used, and cultivated claiming it as his own, but without color of title, or deed on record, may, in pleading the ten years' limitation, tack said decedent's possession to his own. Cochrane v. Paris, 18 Tex. 850. So a purchaser even by parol contract may tack his possession to that of his ven- dor. Cunningham v. Potter, 6 Pa. 355; Caston v. Caston, 3 Eich. (S. C.) Eq. 1; Doe v. Eslava, 11 Ala. 1038. See Dikeman v. Parrish, 6 Pa. 310; Adams v. Tiernan, 5 Dana (Ky.) 394; Chilton v. Wilson, 28 Tenn (9 Humph.) 399; Overfield V. Christie, 7 S. & R. (Pa.) 173; Val- entine v. Cooley, 19 Tenn. (Meigs) 613. A purchaser under an execution «ale may tack the possession of the judgment debtor to his own. Schutz V. Fitzwalter, 5 Pa. 136. But see Bullen v. Arnold, 31 Me. 583, where it was held that the title must pass by contract in order that the possession may be tacked. But in MofBtt v. McDonald, 30 Tenn. (11 Humph.) 457, it was held that the possession of an administrator might be tacked to that of his intestate. And in Cleveland Ins. Co. v. Reed, 65 U. S. (34 How.) 384, 16 L. Ed. 686, it was held that the title of the assignee in bankruptcy may be tacked to that of his grantee. See also, Fan- ning V. Willcox, 3 Day (Conn.) 358, and Smith v. Chapin, 31 Conn. 530, holding that no privity of estate be- tween successive occupants need be shown, but that a continuous and uninterrupted possession for the requisite period, whether by one or more persons, is sufiBcient where such was the understanding of the parties. 29. Farrow v. Bullock, 63 Ga. 360. 30. Weber v. Anderson, 73 111. 439. In Smith v. Chapin, 31 Conn. 530, evidence that certain land which the plaintiff's grantor held adversely was omitted by mistake from the convey- ance, was held admissible to show the relation of the possession taken to that relinquished, and to enable the defendant to tack his possession to that of his predecessor. It is suf- ficient if there is an adverse posses- sion continued uninterruptedly for Adverse Possession and Real Actions. 1313 sion of a prior occupant may be passed by operation of law, as of an execution debtor to a purchaser of the land on execution sale,'^ and of an intestate to that of an administrator,^^ and of an assignee in bankruptcy to that of a purchaser from him,^ and of a tenant under the ancestor to that of the heirs, ^* and in all cases where the interest of the occupant passes by contract or by operation of law.^^ But such possession of a previous occupant cannot be tacked to that of a subsequent one, where there is no privity. Thus, it is held that the possession of the husband cannot be tacked to that of the widow,^" unless the husband claimed the land fifteen years, whether by one or more persons. Ibid.; Fanning v. Willoox, 3 Day (Conn.) 298. See Jackson v. Moore, 13 Johns. (N. Y.) 513; Cun- ningham V. Patton, 6 Pa. 355 ; Val- entine V. Cooley, supra. The pri- vity requisite to be established may be by will, Haynes v. Board- man, 119 Mass. 414; or by descent, Currier v. Gale, 91 Mass. (9 Allen) 532; or it may be continued by an administrator. Peele v. Cheever, 90 Mass. (8 Allen) 89. Where the holder of color of title held possession and paid taxes on the land for four years, and then gave a contract to sell the land to another, who went into possession and paid taxes for five years more, the payment of the last five years' taxes was held a payment under the title of the holder of the color of title, inuring to establish the bar. Kruse v. Wilson, 79 111. 233. 31. Schutz v. Fitzwalter, supra. In order that the possession of suc- cessive occupants may be so continu- ously adverse as to inure to the bene- fit of the last occupant, there must be a privity between them, either by contract or by operation of law. Shaw V. Nioholay, 30 Mo. 99. 32. Moffitt V. McDonald, supra. 83 33. Cleveland Ins. Co. v. Reed, supra. 34. Williams v. McAliley, Cheves (S. C.) 200. If a parent places a son in possession of land under a verbal gift, and the possession is held by the son adversely to the father and all other persons, the death of the father will not arrest the running of the statute. By the descent cast the heirs are placed exactly in the shoes of their ancestor; and the statute having commenced running against him in his lifetime, it continues to run without intermission against his heirs. Haynes v. Jones, 39 Tenn. (2 Head) 372. 35. Pederick v. Searle, supra, 3 S. & R. (Penn.) 240. 36. Sawyer v. Kendall, 64 Mass. (10 Cush.) 241. In the recent case of Wishart v. McKnight, 178 Mass. 856, 59 N. E. 1028, the cited case of Sawyer v. Kendall is thus explained, and the rule made clear as to tacking : " Saw- yer V. Kendall was a. case where no continuity of possession had been made out by the tenant, and the de- cision was finally put upon that ground. * * ♦ We are of opinion that that case is to be confined to the 1314 Statutes of Limitation. to belong to his wife.^^ But in those States where the wife, by statute, is made an heir of her husband, the rule would be dif- ferent, as in those cases she would hold in the double capacity of heir and widow. The possession of a son may be tacked to that of his f ather.^^ But in all cases the several occupancies must be so connected that they can be referred to the original entry, and the continuity of the possession must be unbroken; as, if there has been such a lapse in possession as to raise a presumption of abandonment, the constructive seisin of the ovsmer of the legal title will apply and the possession must begin de novo; and whether there has been such a lapse or not is a question for the jury, in view of all the circumstances.'^ So, too, the successive occupants must claim through their predecessors;*" and if they claim inde- pendently the continuity is broken, and each must stand upon his own possession.*^ point actually decided, and cannot be held to be an authority for all the statements in the opinions in that case and in the cases cited. * * » Where possession has been actually and in each instance transferred by the one in possession to his successor, the owner of the record title is barred from maintaining an action to re- cover the land. In some cases this conclusion has been reached on the ground that in such a case there is the necessary privity, or, more prop- erly, continuity of possession, between the successive trespassers, within the doctrine on which Sawyer v. Kendall was decided." See also Faloon v. Simshauser, 130 111. 649; Vandall v. St. Martin, 43 Minn. 163; Adkins v. Tomlinson, 131 Mo. 4S7; Coogler v. Rogers, 25 Fla. 853, 882; Rowland V. Williams, 23 Oregon, 515; Shuffle- ton V. Nelson, 2 Sawyer, 540. Other cases go further still. See Willis v. Howe, [1893] 3 Ch. 545, 553; Chapin V. Freeland, 142 Mass. 383, 3'87 ; Har- rison v. Dolan, 172 Mass. 395, 397; McNeely v. Langan, 22 Ohio St. 32; Frost V. Courtis, 172 Mass. 401; 13 Harv. L. Rev. 52. 37. Holton V. Whitney, 30 Vt. 405. But the husband may tack the pos- session of his wife to his own. Steel V. Johnson, 86 Mass. (4 Allen) 435;- Smith V. Garza, 15 Tex. 150. And the possession of a son-in-law may be tacked to that of his father-in-law, where he occxipied for him. St. Louis V. Gorman, 39 Mo. 193. 38. King V. Smith, 1 Rice (S. C.) 10. 39. Hood V. Hood, 2 Grant's Gas. (Pa.) 229; Andrews v. Mulford, 1 Hayw. (K C.) 320. 40. Johnston v. Nash, 15 Tex. 419. 41. Menkens v. Blumenthal, 27 Mo. 198 ; Taylor v. Burnside, 1 Gratt. (Va.) 165; Wicldiffe v. Ensor, 48 Ky. (9 B. Mon.) 353; Doe v. Eslava, 11 Ala. 1028. 'Adveese Possession and Real Actions. 1315 § 272. Effect of bringing ejectment. Although the adverse possession of a defendant in ejectment can- not, during the pendency of the suit, ripen into an absolute title under the operation of the statute of limitations, yet the effect of the statute is neutralized only in respect to the particular suit, and the plaintiff therein. And after the termination of that suit, the statutory limitation having meanwhile expired, no subsequent ac- tion can be brought, either at law or in equity, to question that title or possession ;*^ and if the plaintiff fails therein, the period during which the action was pending is not deducted from the period requisite to gain a title by possession. § 272a(l). Recovery of real property in general — Lmitations ap- plicable. An action to establish a resulting trust in land, and compel the legal title to be transferred to the equitable owner, in which the petition does not allege that defendants are in possession of the property, or that plaintiff is entitled to possession thereof, is not an action for the recovery of real property within the meaning of the Kansas statute.*^ The Colorado statute providing seven years' limitation for actions to recover real property in possession by actual residence, is a defense only where defendant has been an actual resident for seven years and having a connected title. ^* Iowa Code, § 4198, limiting the right to recover for the use and occupation of premises to five years prior to the commencement of an action to recover real property, has no application to a suit to quiet title.^^ Where defendant, on taking possession of the bed 42. Hopkins v. Calloway, 47 Tenn. Colo. Rev. St. 1908, § 4073, limit- (7 Coldw.) 37. ing the time within which to sue for 43. Main v. Payne, 17 Kan. 608, fraud or in cases of trust, has no ap- under Civ. Code Kan. § 16 (Gen. St. plication to actions affecting realty 1S68, p. 633), allowing 15 years in only. Wells v. Brown, 23 Colo. App. •which to bring such actions. IM, 128 Pac. 869. 44. Poage v. E. H. Rollins & Sons, 45. German v. Heath, 139 Iowa, 52, 24 Colo. App. 537; 135 Pac. 990, un- 116 N. W. 1051. See also Empire der Mills' Ann. St. Rev. Supp. § Real Estate & Mortgage Co. v.. Beech- 2923c. ley, 137 Iowa 7, 114 N. W. 556. 1316 Statutes of Limitation. of a non-navigable lake, had not held it adversely for seven years, riparian owners were not barred from suing for its recovery.*" In '' Kentucky, under the direct provisions of the Constitution, § 251, claimants under a prior patent who have failed for fifteen years to bring their action against those in possession of lands claiming under a patent are barred.*^ In Missouri, where, in an action to quiet title to certain land, plaintiff had held the legal title for more than thirty years, but no one had ever been in possession of the land and had never paid any taxes thereon for more than thirty years, plaintiff's action was not barred by the thirty years' statute of limitations.'*^ Trusts arising from an implication of law are within the operation of the Idaho statute of limitations, pro- viding that actions for the recovery of real estate cannot be main- tained unless plaintiff or his ancestors were seized or possessed of the land within five years before action brought.*^ In South Caro- lina, where property is conveyed to satisfy a mortgage by husband The statute of limitations contain- ed in Oklahoma St. 1893, § 5668, re- lating to actions to recover posses- sion of realty, does not apply to an action to quiet title. Lowenstein v. Sexton, 18 Okl. 3Z2, 90 Pac. 410. 46. Rhodes v. Cissell, 82 Ark. 367, 101 S. W. 758. 47. Steele v. Jackson, 140 Ky. 821, 131 S. W. 1032. Where a banking corporation held for more than five years while it con- tinued in business real estate not nec- essary for its business and its charter then expired, so that it existed only to wind up its business under Ky. St. § 561 (Russell's St. § 2147), an ac- tion to escheat property being an ac- tion only for recovery of real estate was barred in 15 years under Ky. St. § 2505 (Russell's St. § 212), after the expiration of the charter. Louis- ville Banking Co. v. Commonwealth, 142 Ky. 690, 134 S. W. 1142. The 10-year limitation applie.s to an action to set aside a deed on the ground of infancy. Henson v. Culjp, 157 Ky. 442, 163 S. W. 455. 48. Haarstick v. Gabriel, 200 Mo. 237, 98 S. W. 760. Mo. Rev. St. 1899, § 4268. Rev. St. 1899, § 4262, pro- viding a 10-year limitation for ac- tions for the recovery of lands, ap- plies to land claimed as a homestead. Joplin Brewing Co. v. Paynej 197 Mo. 422, 94 S. W. 896, 114 Am. St. Rep. 770. 49. Ames v. Howe, 13 Idaho, 756, 93 Pac. 35, under Rev. St. 1887, § 4036. Under the statute of limitations (Rev. Codes, § 4054, subd. 1 and §§ 4037, 4038, 4060), an action to have ordinances vacating streets and al- leys of a city declared null and void, and to compel the removal of ob- structions from the streets, should have been commenced within at least 'Adverse Possession ajstd Eeal Actions. 13ir and wife, but without a release by the wife after the lapse of more than twenty years from the date of the mortgage, it is presumed paid, and is barred by the twenty-year statute of limitations.^ In- terest which the State took by escheat from alien heirs of a decedent is an interest in real estate within the forty-year limitation pre- scribed by New York Code Civ. Proc, § 362, par. 1.^^ An action by the grantee in an executed contract transferring title to land, or by his heirs against the grantor to determine adverse claims and compel a conveyance is not barred by the Minnesota six-year statute of limitation.^^ Under the Massachusetts statute, a purchaser's uninterrupted possession for twenty years or more, after perform- ance by the vendor was due, and the vendor had refused a deed, bars a writ of entry.^^ Limitations prescribed in Oregon B. & C. Comp., §§ 3128, 3146, do not apply to suits to remove a cloud, for five years from the time the cause of action arose. Canady v. Coeur d'Alene Lumber Co., 31 Idaho, 77, laO Pao. 830. 50. Grainey v. Anderson, 87 S. C. 47, 68 S. E. 888, under Civ. Code 1903, § 2449. As to the application of the stat- utes to an action brought by a minor in a federal court after his disability ceased to recover real property, see Cheatham v. Evans, 160 Fed. €02, 87 C. C. A. 576 (U. S. C. C. A., S. C). 51. Stappenbeck v. Mather, 73 Misc. Rep. 434, 133 N. Y. Supp. 482. The right given by Buffalo City Charter, Laws 1891, c. 105, § 406, re- enacting Laiws 1B70, c. 519, tit. 9, § 17, giving compensation to owners of property abutting on a street for damages caused by alterations in its grade, is in the nature of a grant or an easement in the street that the grade will remain unchanged, and where the grade crossing commission- ers, created by Laws 1888, c. 345, as amended by Laws 1890, c. 255, low- ered the grade of a street without compensation to the abutting owners, it invaded their property rights and violated the grant existing between the city and the owners, and the only way the city could destroy the ease- ment was by adverse holding for 20 years, and the right to claim compen- sation was not barred by the six-year statute of limitations. In re Grade Crossing Com'rs of City of Buffalo, 138 App. Div. 349, 122 N. Y. Supp. 922. See Bergman v. Klein, 89 N. Y. Supp. 624, 97 Aipp. Div. 15, as to the limitation of actions to recover pos- session of land upon which the walls of abutting buildings stand, under Code Civ. Proc, § 1499. 52. Coates v. Cooper, 121 Minn. 11, 140 N. W. 120, nor by the 15-year limitation; it not appearing that de- fendants h.« ve for that period assert- ed any adverse, hostile claim. 53. Endicott v. Haviland, 220 Mass. 48, 107 N. E. 394, under Mass Rev. Laws, c. 179, § 2, and chapter 202, §§ 20, 22. 1318 Statutes of Limitation. by their terms they only apply to suits to recover property.^* An action to remove a cloud created by a devise of land which the testator had previously conveyed is not an action to set aside or construe the will, within Illinois Wills Act., § 7, limiting the time for bringing such action.^^ In Washington, one having the record or paper title to land is not barred by the seven-year stat- ute of limitations; the ten-year statute applying in his ease.^^ A suit to reform a deed and to quiet title is one " for lands," gov- erned as to limitations by Shannon's Code Tenn., § 4458, and not barred thereunder where defendants had never been in possession of the land.^^ In Texas, an action for the " recovery of real es- tate," within Rev. St. 1879, art. 3207, excepting such actions from the four-years statute of limitations, includes only actions on a title which would sustain an action of trespass to try title, not actions to enforce a mere equity, though judgment for the land might be rendered on the establishment of such equity.^* But when the al- legations of a petition are to the effect that a sale by a trustee is null and void, and that it conveyed no title to the land, and the primary purpose of the suit is to recover the land, and not to cancel the deed by the trustee, and the deed, as alleged, bears on its face the evidence of its invalidity^ the four-years statute of limitations cannot be pleaded in bar to the aetion.^^ 54. Martin v. White, 53 Or. 319, road company for 18 years as a right- 100 Pac. 290. of-way, held barred by limitations. 55. Thurston v. Tubbs, 257 111. 465, Nielsen v. Northern Pac. E. Co., 184 100 N. E. 947. Fed. 601, 106 C. C. A. 581 (U. S. C. 56. Johnson v. Ingram, 63 Wash. C. A., Wash.). 554, 115 Pac. 1073. 57. Williams v. American Ass'n, An action against the widow of 197 Fed. 500, 118 C. C. A. 1 (Tenn.). plaintiff's deceased partner to recover 58. Campbell v. Durst, 15 Tex. Civ. an undivided interest in certain tide App. 522, 40 S. W. 315, and hence an lands to which plaintiflf claimed an action by devisees to set aside an ad- equitable title, is not a, suit to estab- ministrator's sale of land which is lish a trust, but an action to recover voidable only, and to establish their real estate, and not barred by limita- title in the laud, is not for the recov- tions. Lehman v. Heuston, 73 Wash, ery of real estate, and is barred by 154, 131 Pac. 825. the four-year statute. An action brought in the State of 59. Chandler v. Peters (Tex. Civ. Washington to recover land which App.), 44 S. W. 867. had been occupied and used by a rail- 'Adverse Possession and Eeal Actions. 1319 § 272a (2). Actions at law in general. An action at law, under South Dakota Eev. Code Civ. Proc, § 675, providing that an action may be brought by any person against another who claims an interest in real property adverse to him for the purpose of determining such adverse claim, is governed by the statutory sections providing for a limitation of actions.^** In Texas, in trespass to try title to recover land in possession of another, no limitation is available except that which affects the right to recover real estate.^^ In a suit to recover land pursuant to Where the owner of land conveyed the same under circumstances where- by the equitable title remained in him and thereafter he conveyed the land to plaintiff, who sued in trespass to try title to recover from those claiming under the deed which created the trust, the only limitation appli- cable was that applying to actions for land and not the four years' limi- tation as against the cancellation of a deed, the ten years against specific performance, or the limitation of stale demand. Craig v. Harless, 33 Tex. Civ. App. 357, 76 S. W. 594. 60. Burleigh v. Hecht, 23 S. D. 301, 117 N. W. 3&7. 61. Hoffman v. Buchanan (Tex. Civ. App.), 133 S. W. 168. Trespass to try title, in which plain- tiff claims on the theory that the debt secured by an ancient deed, accom- panied by written defeasance, is to be presumed satisfied, is not in the nature of a suit for specific perform- ance of the defeasance, so as to be subject to the bar of limitations. Tur- ner V. Cochrane, 30 Tex. Civ. App. 549, 70 S. W. 1034. The four years' statute of limitations does not apply to trespass to try title. Watson v. Harris (Tex. Civ. App.), 130 S. W. 237. Where a deed of land was a mort- gage, and the equitable title remained in the grantor, so that he could sue for a recovery of the land, a suit by him for a cancellation of the deed and for an accounting was in effect an ac- tion to recover the land, so that limi- tations as to actions for real estate applied, and not the four-year statute (Rev. St. 1895, art. 3358), which ap- plies to other actions than for the recovery of land, for which no limi- tation is provided. Smith v. Olivarri (Tex. Civ. App.), 137 S. W. 335. The three-year statute of limitations held without application in an action of trespass to try title. Fidelity Cotton Oil & Fertilizer Co. v. Martin (Tex. Civ. App.), 136 S. W. 533. An answer seeking affirmative re- lief and indorsed as required for a suit in trespass to try title, but which relied upon mistake in the deed to plaintiff's grantor of which plain- tiff had knowledge, alleged a suit for the reformation of the deed, which was barred in four years by Rev. St. 1911, art. 5690, and not a suit to re- cover tlie land. Hamilton v. Green (Tex. Civ. App.) 166 S. W. 97. See also Bell County v. Felts (Tex. Civ. App.), 130 S. W. 1065, rehear- ing denipd, 133 S. W. 369; Sherman V. Pickering (Tex. Civ. App.), 131 S. W. 536. 1320 Statutes of Limitation. an alleged constructive trust, only those statutes of limitation wliicli affect actions to recover realty are applicable. ^^ In Georgia, an action by a widow and minor child to recover possession of a homestead, being an action at law, is not barred by intervention of sixteen years between the eviction and institution of the suit.*^ In Ohio, an action under the statute to recover possession of realty, plaintiff relying on a mortgage to prove title, is not an ac- tion on the mortgage itself, and is not barred in less than twenty- one years.^* To an action in effect to determine title to one-half cubic foot per second of water, claimed by plaintiff under a deed, ^but possession of which defendant has at all times had, defendant's defense of mistake is not barred by California Code Civ. Proc, § 338, subd. 4, prescribing a three-years limitation for an action for relief on the ground of mistake, but only by section 318, pre- scribing a iive-years limitation for recovery of real property or the possession thereof."^ The three-years possession which may be pleaded in bar to an action for forcible entry and detainer, under he Oregon statute, does not bar an action for ejectment.^^ § 272a (3). Equitable actions. A suit by a creditor to have set aside a fraudulent conveyance by the debtor is a suit in equity for the recovery of land, and is 62. Nuckols V. Statiger (Tex. Civ. tions does not apply to suits to re- App. ), 153 S. W. 931. cover land; lapse of time being only By its express terms the four-year available in aid of any prescriptive statute of limitations (Rev. St. 1895, title which defendant may set up. art. 3358) does not apply to actions 64. Hall v. Bradfield, 21 Ohio Cir. to recover real estate. Broussard v. Ct. E. 184, 12 0. C. D. 339. Cruse (Tex. Civ. App.), 154 S. W. 65. South IHile Independent Ditcih 347. Co. V. King, 144 Cal. 450, 77 Pac. The three-year statute of limita- 1033. tions is not applicable in an action to 66. Malony v. Adsit, 2i0 Sup. Ct. quiet title by an heir who had not 115, 175 U. S. 281, 44 L. Ed. 163, un- joined in conveying the land. Wood- der Hill's Code Or. § 3524. burn V. Texas Town Lot & Improve- See Myers v. Mathis, 2 Ind. T. 3, ment Co. (Tex. Civ. App.), 153 S. W. 46 S. W. 178; Sittel v. Wright, 3 365. Tnd. T. 684, 64 S. W. 576, as to when 63. Hughes v. Purcell, 135 Ga. 174, an action for the recovery of realty 68 S. E. 1111, the statute of limita- is barred under Mansf. Dig. § 4470 'Adveese Possession and Real Actions. 1321 governed by the statute of limitations of t«n years." A suit to reform a deed is one for the recovery of real property, the correc- tion of the deed being merely incidental, and is therefore within the five years' limitation prescribed by Code Civ. Proc. Cal., § 318, for actions for the recovery of real property, and not within section 338, subd. 4, limiting actions for relief from fraud or mistake to three years.^ "Where a city in 1888 established a build- ing line on property in a proceeding of which the owner had no notice, and of which she apparently had no knowledge until 1907, but the city had never entered on her land, her suit to enjoin its enforcement is not within the equity of Conn. Gen. St. 1902, § 1109, providing that no person shall make entry on land except within fifteen years next after his title shall first accrue, and no entry shall be sufficient unless action be commenced thereupon and prosecuted to effect within one year.*^ Actions by grantors of real property, about five years after the youngest of them came of age, to have the deed set aside, are not " proceedings to recover real property or the possession thereof," within !N^ew York Code ( Ind. T. Ann. St. 1899, § 2943 ) , pro- tee. Page v. Garver, 146 Cal. 577, 80 riding a limitation of five years for Pac. 860. See also Murphy v. Crow- such actions. ley, 140 Cal. 141, 73 Pac. 820, rev'g 67. \ Washington v. Norwood, 128 judg. 70 Pac. 1024. Ala. 383, 30 So. 405 ; Van Ingen v. Action to establish a trust, in land, DuflRn, 158 Ala. 318, 48 So. 507. and for an award of possession is 68. Union Ice Co. v. Doyle, 6 Cal. an action to recover real property and App. 284, 93 Pac. 112. its possession, within Code Civ. Proc., Code Civ. Proc, § 318, providing § 318. . Bradley Bros. v. Bradley, 20 that no action for the recovery of Cal. App. 1, 127 Pac. 1044. real property can be maintained un- But an " action " to reform a deed less it appear that the plaintiff, his as to the description for mutual mis- ancestor, predecessor, or grantor, was take is not within Code Civ. Proc, § seized or possessed of the property in 318, but is within Civ. Code, § 3399, question within five years before the authorizing an action to reform a commencement of the action, is appli- contract, which because of mistake cable to a suit by the widow of an does not express the intent of the intestate to recover property conveyed parties. Hart v. Walton, 9 Cal. App. during the lifetime of the intestate 502, 99 Pac. 719. through the fraudulent representa- 69. Northrop v. City of Waterbury, tions and undue influence of the gran- 81 Conn. 305, 70 Atl. 1024. 1322 Statutes of Limitation. Civ. Proc, § 365, and fall within the ten-year limitation of section SSS.'" Whether a deed is fraudulent and void as to creditors may- be examined and decided in an action to recover real estate, and, in such cases, the Indiana statute of limitations is twenty years.'^ The twenty-year limitation fixed by the North Dakota statute, re- lating to the recovery of real property and the causes of action founded on the title to real property, does- not apply to equitable causes of action in favor of a mortgagor against the mortgagee in possession.''^ The Virginia statute, limiting the time within which suit may be brought to recover land, has no application to the suit of a judgment creditor to enforce his lien against the land.'* Where plaintiff, knowing of a mistake in the description of a deed sought to be reformed, remained silent for nearly sixteen years before suit was brought, he was barred from obtaining relief un- der the Iowa statute, limiting actions founded on written contracts and those brought for the recovery of real property to ten years.'* The interest acquired by a locator in possession of a mining claim prior to his compliance with provisions of United States statutes entitling him to a patent is mere personalty, and not an interest in real property, within the Oregon statute, providing that a suit for the determination of an interest in real property shall be deemed within the limitations of actions for the recovery of real 70. O'Donohue v. Smith, 109 N. Y. and was therefore not within the five Supp. 9a9, 57 Mise. Eep. 448. years' statute of limitations. Pierce 71. Vanduyn v. Hepner, 45 Ind. v. Vansell, 35 Ind. Apip. 53^, 74 N. 589, the limitation of six years for E. 554. relief against frauds has no applioa- 72. Nash v. Northwest Land Co., tion. 15 N. D. 566, 108 N. W. 792, under A suit by an administrator to re- Eev. Codes N. D. 1899, §§ 5188, 5189 form a deed to certain land sold by (Rev. Codes 1905, §§ 6774, 6775). him under order of court, on the 73. Flanary v. Kane, 108 Va. 547, ground that by mutual mistake the 46 S. E. 313, rehearing denied, 102 description included more land than Va. 547, 46 S. E. 681, under Va. Code was intended to be sold or purchased, 1887, § 2915. and that the additional land was 74. Garst v. Brutsche, 129 Iowa, needed to pay debts of the deceased, 501, 105 N. W. 452, under Iowa Code, was not a suit to recover real prop- §§ 3747, 3748. erty sold by him as administrator. 'Adveese Possession axd Real Actions. 1323 property, and hence such statute has no application to an action for specific performance of a contract to convey such mining claims.''* In Texas, an action to recover land held by defendants under a deed void for want of delivery is not one to cancel a deed so as to be barred in four years.™ § 272a (4). Partition. The bar of the statute of limitations relating to real actions is not confined to the action of ejectment, but applies also to a bill for partition, in equity as well as at law.'^ In an action for parti- tion, where an interest in land was sold under the power contained in a mortgage, and conveyed to plaintiff one year after the right to sell imder the power accrued, but the mortgagor was in possession ever since that time, the fact that over ten years have elapsed since the mortgage matured is not a bar to the prosecution of the ac- tion.''* Where, in an action for a division of land, plaintiff claimed a half interest, but his share had been sold by his agent thirty-five years before to the owner of the remaining interest, who with his grantees have been in actual, continuous possession ever since, and within four years after the sale, plaintiff, when asked to clear the title, said he had received his pay and had no interest in the land, plaintiff's claim was barred by the statute of limitations.''^ The New York statute of limitations does not apply either to partition actions or accoxmting therein.^ Under the Washington statute, declaring that actions for the recovery of real property must be begun within ten years after the accrual of the cause of action, an action for partition against one who, together with his predeces- sors in iiiterest, has exercised dominion over and claimed the prop- erty adversely against the world for over ten years, is barred.'^ 75. Herron v. Eagle ilin. Co., 37 78. Call v. Dancy, 144 N. C. 494, Or. 155, 61 Pac. 417, under Hill's 57 S. E. 220. Ann. Laws, Or. § 382. 79. Godsey v. Standifer, 31 Ky. 76. ilcCelvey v. McCelvev, 15 Tex. Law Rep. 44, 101 S. W. 921. Civ. App. 105, 38 S. W. 473. 80. In re Wood's Estate, 13.3 N. Y. 77. Smith v. Clark, 248 111. 255, Supp. 574, 68 Mise. Rep. 267. 93 y. E. 727; Kotz v. Belz, 178 111. 81. Hyde v. Britton, 41 Wash. 277, 434, 53 N. E. 367. 1324 Statutes of Limitation. Where property in whieli plaintiff was interested was sold under mortgage foreclosure September 15, 1886, and she was then of age, but asserted no rights until July, 1907, her right to partition, on the ground that the judgment was void as against her, was barred by the twenty-year statute of limitations prescribed for actions to recover real property or the possession thereof by New York Code Civ. Proc, § 365.*^ The thirty-year prescription provided for by Louisiana Civ. Code, art 1305, applies to partition suits and not to petitory actions.*^ § 272a(5). Foreclosure of mortgage or deed for security. Limitations will not run against the foreclosure of a mortgage on lands until there is a presumption that the debt is satisfied, in the absence of adverse possession.*^ Under the Arkansas statute, ■which provides that in suits to foreclose mortgages it shall be a sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on the debt for the secur- ity of which they were given, where the five-years limitation had not run against the note at the mortgagor's death, the general stat- ute then ceased to run against the debt, and was succeeded by the two-year statute of nonclaims, which, as it does not begin to run before administration of an estate, never commenced running, so that foreclosure of the mortgage was not barred.*^ In New Jersey, 83 Pao. 307, under 2 Ballinger's Ann. claiming to own undivided interests Codes & St. Wash. § 4f797. in an immovable against parties pos- Under La. Civ. Code, arts. 1791, sessing and claiming to hold in in- 3542, an action by an heir of an in- division the whole immovable, defend- terdict to recover property partition- ants can plead the prescription of ed held barred by prescription. Ham- 10 years, the prescription relating to ilton V. Hamilton, 130 La. 302, 57 So. an action for partition not applying. 935. Ogden v. Lelaud University, 49 La. 82. Hope V. Seaman, 119 N. Y. Ann. 190, 21 So. 685. Supp. 713, judg. modified Hope v. 84. Shockley v. Christopher, 180 Shevill, 122 N. Y. Supp. 127, 137 App. Ala. 140, 60 So. 317. Div. 86. 85. A. R. Bowdre & Co. v. Pitts, 83. Vestal v. Producers' Oil Co., 135 94 Ark. 613, 128 S. W. 57, under Kir- La. 984, 66 So. 334. by's Dig. Ark., § 5399. In a petitory action by parties Prior to Kirby's Dig., § 5399, seven Adverse Possession and Ejeal Actions. 1325 the statute of limitations applies to a suit in equity to foreclose a mortgage, under the rule that the right to foreclose ceases when the legal right of entry is barred.'^ In Indiana, where a mortgage was executed in June, 1895, and in March, 1901, a purchaser of the mortgaged premises agreed for a valuable consideration to as- sume an undivided part of the mortgage debt, a suit to foreclose the mortgage instituted in April, 1904, was not barred by limita- tions.*^ In Illinois, in a suit to foreclose as a mortgage a deed absolute on its face, where the defendants pleaded limitations of sixteen years, it was held that, the defendants being in posses- sion of the premises, they were tenants at will, and the only limita- tion law that could be invoked was that of twenty years' adverse possession.** Where defendants acquired title to real property of a corporation under mortgage foreclosure, and by sale in satisfac- tion of a deficiency judgment, the corporation after a change of control, fifteen years thereafter, could not recover the land in ejectment for alleged invalidity of the mortgage, under the Michi- gan statute, limiting the time in which to sue to recover real prop- erty or the possession thereof to five years.** In Wisconsin, the years' continuous adverse possession 88. Eeed v. Kidder, 70 III. App. 498. was necessary to bar an action to Mortgage notes which had been foreclose a mortgage on real property due for upward of 16 years, where and to make limitations available nothing had been paid on them, and either by the mortgagor or a subse- there had been no promise to pay, are quent grantee or mortgagee. Wadley barred by the statute of limitations. V. Ward, 99 Ark. 212, 137 S. W. 808. Watts v. Eice, 192 111. 123, 61 N. E. 86. Wallace v. Coward, 79 N. J. 337. Eq. 243, 81 Atl. 739. 89. West Michigan Park Ass'n v. 87. Union Trust Co. v. Scott, 170 Pere Marquette E. Co., 172 Mich. 179, Ind. App. 666, 63 N. E. 1031, trans- 137 N. W. 799. ferred to Supreme Court, 85 N. E. In a suit by the purchaser of lands 481. from the mother and guardian of mi- Under Prac. Act, § 211, cl. 5, it was nor children by regulai; probate pro- formerly held that the statute of lim- ceedings, the guardian's right to in- itations of 15 years did not apply to sist that as to one of the descriptions the foreclosure of a mortgage, but the sold she did not sell her dower inter- time of limitation in such a case was est therein was barred by the five- SO years. Catterlin v. Armstrong, 79 year statute of limitation of actions Ind. 514. to recover land (Comp. Laws 1897, § 132'6 Statutes of Limitation. riglits of plaintiff, who was beneficiary under a mortgage, were held barred by the twenty-year statute of limitations.^* The en- forcement in equity of mortgages and deeds of trust of real estate is governed by the statute of limitations applicable to possessory actions at common law for the recovery of real estate, which statute in the District of Columbia is that of 21 James I., c. 16, pre- scribing twenty years within which such actions must be insti- tuted.^^ In an action in ejectment by a mortgagee, after condi- tion broken, the statutory bar of fifteen years, as provided by Ohio Rev. St., § 4980, in an action on a specialty, does not apply, but the bar is twenty-one years, as provided by section 4977.'^ In South Dakota, the six-year limitation does not apply to an ac- tion to foreclose a mortgage, and such action can only be barred by the ten-year statute.'^ In Texas, the three, five, and ten years' statutes of limitations are not available to bar foreclosure of" a trust deed, as they apply only to suits for land.^* In West Virginia, the right to enforce the lien of a trust deed being an equitable remedy the statute of limitations has no direct operation on the right, but the general rule in equity as to the limit of time for the enforcement of such lien is by analogy to the right of entry at law, namely, that twenty years' possession by the grantor after default, without any acknowledgment or recognition of the lien, will be a bar.^^ The Wyoming statute, limiting the time within which suit may be brought for the recovery of the possession of lands, cannot be applied to an action to foreclose a mortgage, since the object of such action is not to recover the land, but to realize the amount of the debt by selling the security.®^ 9714. Hunt v. Stevens, 174 Mich. 93. Bruce v. Wanzer, 20 S. D. 277, 501, 140 N. W. 992. 103 N. W. 282. 90. Wetutzke v. Wetutzke, 158 94. Williams v. Armistead, 41 Tex. Wis. 305, 1*8 N. W. 1088. Civ. App. 35, 90 S. W. 925. 91. Sis V. Boarman, 11 App. D. C. 95. Camden v. Alkire, 24 W. Va. 116. And see Cropley v. Eyster, 9 674. App. D. C. 373. 96. Balch v. Arnold, 9 Wyo. 17, 59 92. Bradfield v. Hale, 67 Ohio St. Pac. 434, under Wyo. Rev. St. 1887, 316, 65 N. E. 1O08. § 2366. iAdveese Possession and Eeal Actions. 1327 § 272a(6). Redemption from mortgage or deed for security. A mortgagor's right to redeem from a void foreclosure sale is barred after ten years, in Alabama;^'' and, a bill in equity to es- tablish as a mortgage an absolute deed intended only' as a mort- gage is barred by the statute of limitations of ten years.'* In South Dakota, the ten-year limitation applies to an action to redeem from a mortgage.^' The right to foreclose and the right to redeem are reciprocal, and an action to redeem may be brought at any time before the statutory bar of ten years is complete, under the l^ebraska statute.-^ The Missouri statute, which limits the time within which an action may be brought for the recovery of lands or tenements to ten years, and which, under the decisions of the State courts, applies to all suits, whether legal or equitable, in their nature, may be invoked by a purchaser in possession under a deed executed upon a foreclosure sale against a suit by the mort- gagee to redeem, where the possession of the defendant was adverse to the complainant.^ An action seeking to have the value of mort- gaged lands sold to a iona fide purchaser treated as the land itself, and redemption had accordingly, is not on a money demand, and hence limitations, applicable thereto, are no bar to such an action.^ An action to have a deed declared a mortgage and to redeem is bar- red in five years under the Idaho statute.* 97. Summerford v. Hammond, 187 99. West v. Middlesex Banking Co., Ala. 244, 65 So. 831. 33 S. D. 465, 146 N. W. 598. 98. Richter v. Noll, 128 Ala. 198, 1. Dickson v. Stewart, 71 Neb. 424, 30 So. 740. • 98 N. W. 1085, 115 Am. St. Eep. 596; A cross-bill by an administrator, Dorsey v. Conrad, 49 Neb. 443, 68 N. asking that the amount of a lien W. 645, under Neb. Code Civ. Proc, chargeable, by agreement, upon the § 6. interests of the heirs in the land be 2. Stout v. Rigney, 107 Fed. 545, considered in determining the amount 46 C. C. A. 459 (Mo.), under Rev. each should contribute for redemption St. Mo. 1859, § 4262. of the land from a mortgage, seeks to 3. Mooney v. Byrne, 163 N. Y. 86, enforce a lien on the land, and not a, 57 N. E. 163, rev'g judg. 44 N. Y. right to recover the indebtedness, and Supp. 1124, 15 App. Div. 624. is not barred until the lapse of 20 4. Fountain v. Lewiston Nat. Bank, years. Caldwell v. Caldwell, 183 Ala. 11 Idaho, 451, S3 Pac. 505, under Rev. 590, 62 So. 951. St. Idaho, 1887, §§ 4036> 4037. 1328 Statutes of Limitation. § 272a (7). Title under forced sale. The right of a mortgagor to have a sale under a power set aside in equity, because the debt had been theretofore paid, is barred in ten years, and not in two, as is a bill to redeem.^ An action to re- move a cloud from the title to land sold for taxes is not to recover land, within the statute requiring actions to recover land sold at judicial sale to be brought within five years." The Kansas five- year statute of limitations, against actions for the recovery of real property sold on execution brought by the execution debtor or any person claiming under him by title acquired after the judg- ment, applies to all sales, void and voidable.' Where the real 5. Liddell v. Carson, 123 Ala. 518, 26 So. 133. 6. Streett v. Reynolds, 63 Ark. 1, 38 S. W. 150, under Sand. & H. Dig. § 4S18. The plea of the five-year statute of limitations again.st recovery of land sold at a judicial sale by a purchaser at a probate sale to pay debts is un- availing, where the sale was wholly void for the insufficiency of the de- scription of the land sold in the peti- tion; such insufiicieney depriving the court of jurisdiction, and rendering the sale and confirmation wholly void. Jennings v. Bouldin, 98 Ark. 105, 134 S. W. 948. See also Indiana & Ark- ansas Lumber & Mfg. Co. v. Briukley, 164 Fed. 963 (U. S. C. C. A. Ark.), holding Kirby's Dig. Ark., § 5060, in- applicable where the court which or- dered the sales never acquired any jurisdiction to make them. 7. James v. Logan, 82 Kan. 285, 108 Pac. 81, under Code Civ. Proc. Kan. ( Gen. St. 1909, § 5608 ) . It does not apply to an action to recover land sold by one as guardian, who was not so appointed. Harrison v. Miller, 87 Kan. 48, 123 Pac. 854. Where the holder of a valid tax deed, before the two-year limitation has barred his right to rocover pos- session under it, obtains the actual and peaceable possession of the land, the statute is satisfied, and, if he thereafter loses possession, his right to recover it continues until barred by the general statute of limitations. Buckner v. Wingard, 84 Kan. 682, 115 Pae. 636. See Martin v. Cochran, 81 Kan. 602, 106 Pac. 45, as to when the two-year statute of limitations is a bar. The five-year statute of limitations does not apply to a sherifi''s deed ex- ecuted prior to its passage. Ogden v. Walters, IS Kan. 382. It applies to actions brought to recover lands sold under execution issued by the probate court against aii administratrix to en- force an order requiring her to pay an allowed claim; Cheesebrough v. Parker, 25 Kan. 566; and to an ac- tion by an heir to set aside a sale of land made by the administrator, though the irregularity complained of is that proper notice of the sale was not given. Young v. Walker, 26 Kan. 242. 'Adveese Possession and Real Actions. 1329 owner of property procured the holder of the nominal title to convey to a trustee, without consideration, and subsequently a prior mortgage was foreclosed, the real owner of the land was an " execution debtor " within the Indiana statute, providing that actions to recover real property, sold on execution, brought by the execution debtor, are barred in ten years.^ Under Ky. St., § 458, defining " real estate," " personal estate," and " land," the right of action to enforce the lien acquired by an execution creditor pur- chasing at a sale of incumbered real property passes to his per- sonal representative, and hence is not an action affected by the limitation of section 2505 as to actions to recover land.^ The Missouri statute, which limits the time within which an action may be brought for the recovery of lands to ten years, and which under the decisions of the State Supreme Court applies to all suits, whether legal or equitable, may be invoked in a Federal court by a purchaser in possession under a deed executed on a foreclosure sale in a suit by the mortgagor to redeem, where the possession of the defendant was not adverse.-^" In Nebraska, where the lands of 8. Sinclair v. Gunzenliauser, 179 Ind. 7.8, 98 N. E. 37, an action to quiet title 13 barred by the 15-year limitation (Burns' Ann. St. 1908, § S95, subd. 3) . See as to 10-year stat- ute of limitations: Hutchena v. Las- ley, 11 Ind. 456; Wood v. Sanford, 23 Ind. 96; Wright v. Wright, 97 Ind. 444. The statute of limitations relative to the recovery of land applies to de- fective titles and imperfect sales. Hawley v. Zigerly, 135 Ind. 248, 34 N. E. 319. The statute of limitations providing that an action to recover real estate sold on execution must be brought within 10 years applies to a sheriflF's sale of land in pursuance of a mortgage foreclosure decree. Moore V. Eoss, 139 Ind. 200, 38 N. E. 817. 9. Due V. Bankhardt, 151 Ky. 624, 153 S. W. 786. 84 10. Clapp V. Leavens, 164 Fed. 318 (U. S. C. C. A., Mo.), under Rev. St. Mo. 1899, § 426,2 (Ann. St. 1906, p. 2335). Mo. Rev. St. 1909, § 1879, requir- ing all suits to recover lands or their possession to be brought vrithin 10 years, would include an action to set aside a trustee's deed made at a sale under a deed of trust and to recover possession of the land, and to redeem from the trust lien and for an ac- counting for rents. Faris v. Moore, 356 Mo. 123, 165 S. W. 311. Where a. trustee, in 1898, took title to land by sheriff's deed and conveyed the land in 1899, a suit by the bene- ficiaries, commenced in 1907, to set aside the deed from the trustee for fraud was not barred by limitations; the ten-year's statute (Rev. St. 1909, § 1879) being applicable to the case. 1330 Statutes of Limitation. a resident of the State are sold under a decree entered on service by publication, no appearance being made by or on behalf of such party, an action to quiet his title may be brought at any time within ten years from the recording of the deed, made on a sale under the decree, or taking possession thereunder.''^ In New Jersey, the right of a purchaser of land for a term for unpaid water rents to take possession at the expiration of the period of re- demption is a right of entry authorizing ejectment against the person in possession under the legal title, and is therefore barred after twenty years, under the statute.-'^ An action of trespass for injuries to land is not an action for the recovery of the land within the meaning of the Pennsylvania statute, which provides that " no action for recovery of said land shall lie, unless the same be brought within five years after the sale thereof for taxes as afore- said." ^^ In North CaTolina, the right of a devisee, not made a party to a proceeding resulting in a judgment directing a sale of the testator's realty to pay debts, to maintain ejectment against the purchaser, is not barred by any time other than that prescribed by the statute of limitations.'^* A suit by the holder of a Buffalo tax sale certificate to obtain actual possession of the premises by an action at law, authorized by Buffalo City Charter (Laws 1891, c. 105), § 112, may be brought within twenty years from accrual of the cause of action.-'^ In Louisiana, an action to annul a sheriff's sale is barred, when not brought within five years after the sale.-'* Summers v. Abernathy, 234 Mo. 156, Sup«r. Ct. 395, under Act April 3, 136 S. W. 289. 1804, § 3 (4 Smith's Laws, p. 301). 11. Hill V. Chamberlain, 91 Neb. The act of 1804 has no applieation 610, 135 N". W. 999; Payne v. Ander- where the title based upon a tax sale son, 80 Neb. 216, 114 N. W. 148. is void. 12. Beatty v. Lewis (N. J. Ch.), 14. Card v. Finch, 142 N. C. 140,' 68 Atl. 95, under Gen. St., p. 1977, 54 S. E. 1009. § 23, providing that no person hav- 15. Gary v. Keener, 200 N. Y. 253, ing right of entry on any lands shall 93 N. E. 979, aff'g order and answer- make entry therein, but within 20 ing certified question Gary v. Keener, years next after such right shall have 124 N. Y. Supp. 501, 139 App. Div. accrued and such person shall be 811. barred from any entry thereafter. 16. Vinton Oil & Sulphur Co. t. 13. Trexler v. Africa, 33 Pa. Gray, 135 La. 1049, 66 So. 357. See 'Adveesb Possession and Ejeial Actions. 1331 § 272a (8). Establishment of lost deed. The Kentucky statute prescribing the limitation of actions for the recovery of real estate applies by analogy to actions to supply lost deeds to real estate." While a suit to supply evidence of a lost deed and to perpetuate testimony will be barred by laches, if not brought v^ithin a reasonable time after the loss of the deed, an action for the land, and to establish title through the lost deed, will only be barred by a limitation barring recovery of land.-^* An action to establish a lost or concealed deed of trust to secure payment of a note given for the purchase price of land is not an action for the recovery of land, but is within the statute, declaring that every action for which no limitation is prescribed shall be brought within four years next after the right to bring the same has accrued.^' § 272.a(9). Enforcement of vendor's lien. Where for seventy years a purchaser and his grantees continued in the actual adverse possession of the land purchased, without any effort on the part of the vendor or his only heir at law to make Foreman v. Francis, Man. Unrep. Gas. cott v. Petit, 130 La. 791, 58 So. 574. (La.) 357. See as to title under forced sale: The prescription of five years Mich. — Potter v. Martin, 122 Mich, against informalities connected with, 543, 81 N. W. 424, 6 Detroit Leg. N. or arising out of, public sales, is in- 865. applicable to sales affected with juris- Miss. — Moores v. Flurry, 87 Miss. dictional defects. Brewer v. Yazoo 707, 40 So. 226. & M. V. E,. Co., 128 La. 544, 54 So. Tea;.— Green v. Robertson, 30 Tex. 987. The prescriptive term of three Civ. App. 236, 70 S. W. 345. years contained in Const. 1898, art. Wash. — Krutz v. Isaacs, 25 Wash. 233, has no application to attempted 566, 68 Pac. 141. sale of public property by tax collec- 17. Brandenburg v. MoGuire, 105 tors for alleged delinquent taxes. Cor- Ky. 10, 19 Ky. Law Rep. 1598, 44 S. dill V. Quaker Realty Co., 130 La. 933, W. 96; Ky. Gen. St. c. 71, art. 1, 58 So. 819. An action which is not §§ 1, 2, 4. brought by a creditor, but by one 18. Shepard v. Cununings' Heirs, 44 claiming title, whether it is to sat Tex. 502. aside a tax sale or is petitory, is not 19. Farmers' Loan & Trust Co. v. a revocatory action, and the prescrip- Beckley, 93 Tex. a67, 54 S. W. 1027. tion of one year does not apply. How- 1332 Statutes of Limitation. a deed to the purchaser, as stipulated in the title bond on payment of the balance of the purchase price due, and more than fifty years elapsed since the purchaser promised to pay the balance of the purchase price, without any attempt on the part of the sole heir to recover the same or to recover the land, the statutes of limita- tion of both fifteen and thirty years barred an action by the sole heir to recover the land.^ § 272b (1). Title to or possession of real property in general — Accrual of right of action. A State statute of limitations for the recovery of real property does not begin to run in favor of a railway company as against a settler, under the homestead laws of the United States, until patent has issued.^'- Land dedicated to the public for use as a cemetery is dedicated for a public or charitable use and is within the Mis- souri statute, providing that nothing contained in any statute of limitations shall extend to lands given to any public, pious, or charitable use.^^ The statute of limitations of Texas may not be invoked against title to land emanating from Texas, while the boundary between the United States and Mexico, as observed by the political authorities of the United States and Texas, left the land in Mexico, though the boundary line de jure placed the land within Texas.^^ A creditor's cause of action to avoid a fraudulent conveyance made after his debt matured accrued when the convey- ance was made.^^ The twenty-year provision of the Illinois stat- uate commences to run in favor of a tenant when he refuses to 20. Doty V. Jameson, Z9 Ky. Law. 23. Reese v. Cobb (Tex. Civ. App.), Rep. 507, 93 S. W. 638. 135 S. W. 320. 21. Northern Pac. Ey. Co. v. 24. Van Ingen v. Duffin, 158 Ala. Slaght, 305 U. S. 122, 27 Sup. Ct. 318, 48 So. 507, under Ala. Code 1907, 443, 51 L. Ed. 738; 305 U. S. 134, 27 §§ 4833, 4834, par 2, requiring suit Sup. Ct. 446, 51 L. Ed. 743, aff'g judg. for land to be brought within 10 years Slaght V. Northern Pac. Ey. Co., 39 after accrual of the cause of action. Wash. 576, Bl Pac. 1063. The action is one for the recovery 22. Tracy v. Bittle, 213 Mo. 302, of real estate, which under Burns' 112 S. W. 45, under Mo. Eev. St. 1899, Ann. St. Ind. 1908, § 395, subd. 6, § 43Y0 (Ann. St. 1906, p. 3344). may be brought within 20 years, and iADVEESE Possession and Eeal Actions. 1333 attorn or to pay for the premises in question.^^ Where defendant, in peaceable possession of land under a deed, knew that plaintiffs had by fraud obtained a second deed from her grantor to the same land, defendant's failure to have the second deed declared invalid will not start the running of limitations so long as no rights are asserted thereunder.^® Prescription does not run against an action or exception attacking the validity of a sale of land, where the vendor was at all times in possession of the land.^^ Where a land- owner granted a parol license to maintain a flume across his land, his right of action to recover possession did not accrue until the revocation of the license.^* § 272b (2). Nature of entry or possession. The statute of limitations does not begin to run until the right of action accrues, and, in the case of a claim to the possession of real estate, the right of action does not accrue until there is a right of entry. ^^ The statute of limitations with respect to the recovery not one for relief from fraud, sub- soription of 10 years acquirendi ject to a shorter limitation, though causa. Westerfield v. Cohen, 130 La. the complaint, praying for possession 533, 58 So. 175. and damages for detention, and com- 28. G-ustin v. Harting, 20 Wyo. 1, plying with section 1100, prescribing lai Pac. 533. the contents of a complaint to recover As to the application of statutes of possession, in addition, sets out the limitation to axjtions for the recovery liistory of plaintiff's title, and charges of real property in general, see: that defendant is unlawfully in pos- V. 8. — Maytin v. Vela, 316 U. S. session claiming title under a forged 598, 30 Sup. Ct. 439, 54 L. Ed. deed. Stevens v. Neiman, 43 Ind. (U. S., Porto Rico). App. 317, 87 N. E. 153. Iowa—M.eaA v. Illinois Cent. R. Co., ■ 25. Plock V. Plock, 139 111. App. 113 Iowa 391, 83 N. W. 979. 416. Mo. — Hudson v. Oah(^on, 193 Mo. 26. Turner v. Pool, 97 S. C. 446, 547, 91 S. W. 73. 81 S, E. 156. ^eh. — City of Omaha v. Redick, 61 27. Hamilton v. Moore, 136 . La. Neb. 163, 85 N. W. 46. 631, 67 So. 533. Tex. — Pope v. Riggs (Tex. Civ. The want of power to appoint an App.), 43 S. W. 306. agent to convey real estate is a. de- 29. Wright v. Tichenor, 104 Ind. feet de hors the title of a bona fide 185, 3 N. E. 853. purchaser, and is curable by the pre- 1334 Statutes of Limitation. of real estate begins to run at tlie eommenceinent of adverse posses- sion. ^° According to the modern rule, the commencement of a suit in ejectment by a grantor after condition broken takes the place of a formal entry and demand of possession; and where a grantee, on condition subsequent, has clearly manifested his in- tention not to perform the condition, so that his holding thereafter may be deemed to be adverse, the statute of limitations will run from that time against a suit by his grantor. ^^ The statute of limi- tations runs against the title of a pre-emptor of public land from the date of his compliance with all the requisites to entitle him to a patent in favor of one who holds adverse possession.^^ Where a husband and wife conveyed premises in which they had a life in- terest to a third person by deed, professing to convey the fee on the death of the wife, the life tenant's right of entry accrued, and limitations began to run from that date, and their rights were Tliere can be no ouster or running of limitations against a person's rights in land until he has a right of entry. Lynch v. Brookover, 73 W. Va. 311, 77 S. E. 983. A cause of action against one who entered upon land under an adverse claim accrued when the entry was made. Hickman V. Ferguson (Tex. Civ. App.), 164 S. W. 1085. 30. Vail V. Jacobs, 7 Mo. App. 571, memorandum. What is not such hostile or exclu- sive possession against other joint owners as will invoke the operation of the statute of limitations. See Nickels v. Hand in Hand Cornet Band in Manayunk, 52 Pa. Super. Ct. 145, 151. 31. Union Pac. Ry. Co. v. Cook, 98 Fed. 381, 39 C. C. A. 86 (Neb.). In ejectment, where no possession in defendant is shown, the cause of action did not accrue until defend- ant obtained a deed to the property. Smith V. Algona Lumber Co., 73 Or. 1, 143 Pac. 921. Where complainants alleged that their mother, in 1878, while of un- sound mind, conveyed to nonresident purchasers the land in dispute, and that in 190iO the land was conveyed to defendant, and that their mother died in an insane hospital in 1891, as ejectment might have been brought by complainants when the lands were held by nonresident owners, the stat- ute of limitations began to run in favor of the persons in possession in 1891, and it was not postponed until the year 1900. Beresford v. Marble, 95 Miss. 461, 50 So. 68. 32. Eastern Banking Co. v. Love- joy, 81 Neb. 169, 115 N. W. 857. Statutes of limitations do not begin to run against the patentee of public land until the patent has been issued to him. Haggerty v. Annison, 133 La. 338, 63 So. 946. iAdvekse Possession and Reia-L Actions. 1335 barred at the end of seven years.^' Defendant having joined with his mother, a v^idovs^, in a deed of certain community property, in exchange for certain lots, after v^hich the mother and her grantees for more than five years repudiated any claim on the part of de- fendant to the lots received in exchange, and held the title and paid taxes, was not excused, because his mother was occupying the property as a homestead, for his failure to sue to establish his interest within the period of limitations.^^ One having equitable title to land was not bound to assert it till repudiation of his right, and limitations did not begin to run against him till then.^^ § 272b (3). Title to support action in general. Where at the time of the accrual of an interest in realty by inheritance, the heir is a married woman, having living issue by her husband, so that curtesy initiate in him attaches, he alone can sue to recover the property, and hence the statute of limitations does not commence to run against the wife's interest until the husband's death, and the consequent termination of his intervening estate.^^ Where executors sold land of their testator, but only one of them executed the deed, and the grantee went into possession, a right of action in ejectment accrued at once in their favor, and limitations began to run against them, under New York Code Civ. S3. Cherry v. Cape Fear Power Co., 35. Stonehouse v. Stonehouse, 156 142 N. C. 404, 55 S. E. 287. Mich. 43, 16 Detroit Leg. N. 21, 120 Where land was conveyed in trust N. W. 23. And see Bower v. Earl, to collect the rents and profits and 18 Mich. 367. pay the same to W. and permit him See, as to nature of entry or pos- to occupy the premises as u, home for session: life, the ouster of W. was the ouster Mo. — Tower v. Compton Hill Imp. of his trustees, and started limita- Cb., 192 Mo. 379, 91 S. W. 104; Hoke tions against both which barred their v. Central Tp. Farmers' Club, 194 right to recover after seven years. Mo. 576, 91 S. W. 394. W«bb V. Borden, 145 N. C. 188, 58 Tea;.— Dyer v. Pierce (Tex. Civ. S. E. 1083. See also as to title under App.), 60 S. W. 441. trust deed, Bernhardt v. Hagamon, 36. Dawson v. Edwards, 189 111. 144 N. C. 526, 57 S. E. 222. 60, 59 N. E. 590. 34. Williamson v. Williamson (Tex. Civ. App.), 116 S. W. 370. 1336 Statutes of Limitation. Proc, § 415, from that time.^' Limitations begin to run against a cause of action to establish an involuntary trust in land, and to secure possession, only from the time plaintifE lost possession.^^ Where a grantor of land imposed restrictions against alienation by his grantee and the grantee conveyed the coal under the land, limi- tations do not begin to run against the right of the grantor to set aside the conveyance so long as his grantee remains in undisturbed possession.^^ Where plaintiff, to whom deceased had agreed to leave specified realty on her remaining with and caring for him during 37. Brown v. Doherty, 93 App. Div. 190, 87 N. Y. Supp. 563, aff'd 185 N. Y. 383, 78 N. E. 147, 113 Am. St. Rep. 915. A tenant in common, who conveyed his interest to his co-tenant in con- sideration of the latter's agreement to furnish him with a, home for the rest of his life, has a continuing right of action to set aside the deed or en- force the lien which was reserved to protect the grantor. Curran v. Hosey, 153 App. Div. 557, 138 N. Y. Supp. 910. Where one who executed a deed during infancy disaffirmed the con- veyance within the statutory period of 10 years after arriving at age, no limitation applies to an action by him to set aside the deed until claim- ants under the grantee take posses- sion. O'Donohue v. Smith, 130 App. Div. 214, 114 N. Y. Supp. 536, aflf'g. judg. 57 Misc. Rep. 448, 109 N. Y. Supp. 929. Under Code Civ. Proc. § 362, pro- viding that the State could not bring an action with respect to title to lands unless the cause of action accrued within 40 years, limitations do not start to run at the death of a citizen owner intestate and without heirs, but only upon the transition of the title to the State, which would not be until after proceedings insti- tuted for inquest of ofSce. Hamlin v. People, 155 App. Div. 68iO, 140 N. Y. Supp. 643. 38. Bradley Bros. v. Bradley, 30 Cal. App. 1, 127 Pac. 1044, under Code Civ. Proc. § 318. As to action to foreclose a lien on real estate, see Congregational Church Bldg. Soc. v. Oaborn, 153 Cal. 197, 94 Pac. 881. The " right or title," under Code Civ. Proc. § 315, refers to the " right or title " of the State to sue and not to the " right or title " on which a right to sue is based. People v. Banning Co., 167 Cal. 643, 140 Pac. 587. 39. Pond Creek Coal Co. v. Run- yon, 161 Ky. 64, 170 S. W. 501. The statute of limitations is not a bar to the correction of a deed, where the vendee has been in possession of the land, under Ky. St. 1903, § 2543, providing that limitation shall not apply to an action by a vendee in pos- session for a conveyance. Hill v. Clark, 32 Ky. Law Rep. 595, 106 S. W. 805. See also Vanover v. Hag- gard, 157 Ky. 743, 164 S. W. 94. As to action to have a conveyance by mistake corrected, see Jenkins v. Taylor, 22 Ky. Law Rep. 1137, 59 S. W. 853. 'Abvekse Possession and Eeal Actions. 1337 Lis declining years, was in possession claiming to own the prop- erty, limitations did not run against her right of action against the administrator of the deceased to compel specific performance of the contract.^" Limitations do not begin to run in favor of one claiming an interest in real estate until he has taken possession thereof, or has exercised such dominion as amounts to notice to the real owner of his adverse possession.^^ The cause of action in a formal action of trespass to try title to recover possession arose when defendant wrongfully took possession of the premises, and that having been done at least eight years before suit was filed, and the deed under which defendant claimed being duly recorded and all taxes paid, plaintiff's right to recover is barred by the five-year statute.*^ 40. Clow V. West (Nev.), 142 Pac. 236. 41. Stephenson v. Murdock, 88 Neb. 796, 130 N. W. 578. The cloud upon a title to land created by a recorded deed obtained by duress is a continuing one, while the title owner retains possession, and the right of action for its removal is also continuous during such time, and ma,y be brought at any time with- in four years after the claimant un- der such deed has taken possession of the land claiming title under his deed. Dringman v. Keith, 86 Neb. 476, 125 N. W. 1080. 42. Hoffman v. Buchanan (Tex. Civ. App.), 133 S. W. 168. Where, in trespass to try title, wherein plaintiff asked that the deed, under which defendants claimed, be canceled as a cloud on her title, it ap- peared that defendants had never had possession or claimed title under the deed prior to the commencement of the action, the statute of limitations was not available as a defense, since the right to have a cloud on the title remoived is a continuing right. Pan- nell V. Askew (Tex. Civ. App.), 143 S. W. 364. The running of limitations against a grantee's right of action to correct a mistake in a, deed was not inter- rupted by his sale of the land. Dur- ham V. Luce (Tex. Civ. App.), 140 S. W. 850. Where a purchaser of the timber on school lands filed prior to the re- moval of the timber an application to purchase the land, and paid the price at the same time, he became entitled under the statute to the land, and his cause of action against an adverse claimant accrued at that time, and not at the time of a subsequent award of the land to him; that being mere evidence of his existing right to the land. Houston Oil Co. of Texas v. McGrew (Tex. Civ. App.), 143 S. W. 191. An absolute grantor is not entitled to a suit to try title more than 10 years after notice of a conveyance by her grantee. Kennon v. Miller (Tex. Civ. App.), 143 S. W. 986. 1338 Statutes of Limitation. § 272b (4). Title under forced or judicial sale. Limitations do not begin to run against a purchaser at a fore- closure sale until the delivery of the deed.^^ Limitations do not begin to run against a mortgagor's right to redeem, until posses- sion is taken under the mortgage or the foreclosure.^* Where land is levied on under an execution, but it is sold and possession given by the judgment debtor before sheriff's sale, the statute of limitations runs against the purchaser at sheriff's sale from the time the deed of the execution debtor is delivered, and not merely from the time the sheriff's deed is delivered.*^ An action to cancel a commissioner's deed and recover the land, brought within five See also, as to title to support ac- tion : / jSTi/.— Watkins v. Pfeiffer, 29 Ky. Law Eep. 97, 93 S. W. 562. Term. — Anthony v. Wilson (Tenn. Ch. App.), 63 S. W. 340. Tea;.— Gillean v. City of Frost, 25 Tex. Civ. App. 371, 61 S. W. 345. Wash. — Gasaway v. Ballin, 57 Wash. 355, 106 Pac. 905. 43. McDonald v. McCoy, 121 Cal. 55, 53 Pac. 431. See also Group v. Jones (Old.), 144 Pac. 377. Where one purchased from the State swamp lands after a void tax sale, the land not being subject to taxation, the seven years' statute of limitations was set in motion by the conveyance to the purchaser as against the holder under the tax sale. Brinneman v. Scholem, 95 Ark. 65, 12S S. W. 584. When land is sold under tax foreclosure, the statute of limitations does not begin to run against the prior owner until the ex- piration of two years within which he could redeem. Young v. Jackson (Tex. Civ. App.), 110 S. W. 74. 44. Essex v. Smith, 97 Neb. 649, 150 N. W. 1032. 45. Watt V. Killibrew, 156 Ala. 454, 47 So. 83. Where plaintiff received a sheriff's deed for vacant and unimproved prop- erty within seven years before com- mencement of an action, his right is not barred under a statute providing that no action for real property can be maintained unless the plaintiff was in possession within seven years before the commiencement thereof, be- cause defendants held possession a few years before the commencement of the action; the deed carrying con- structive possession with it. Ives v. Grange, 42 Utah, 608, 134 Pac. 619. A creditor of a debtor executing fraudulent conveyances may wait un- til the last day for suing on the debt, and on procuring judgment may wait until about the expiration of the period within which execution must issue before procuring execution, and on purchasing at execution sale, he may wait almost five years before su- ing to set aside the conveyance, though the debtor died before judg- ment. Scholle V. Finnell, 166 Cal. 546, 137 Pac. 241. ■Adveese Possession and E.ea.l Actions. 1339 years after the final determination of the attachment suit, is not barred by limitations.*^ An action of ejectment by one claiming title to real estate by purchase at a sale under a deed of trust is not barred under the statute of limitations, when it is brought within ten years after the last payment was made on a note secured by the deed of trust, and within ten years after the premises were sold to plaintiff under it.*' The right of parties interested in the assigned estate to impeach a sale of part of the property on mort- gage foreclosure to the assignee is available from the day of the sale, and the statute of limitations commences to run from that date.*8 § 272b (5). Title or right of parties to mortgage or deed as se- curity. One who enters upon land under a trustee's deed which purports to convey an absolute title, and which was executed upon a sale by the trustee in a mortgage, the purpose of which was to bar the mort- gagor's equity of redemption, must be regarded as holding adversely to the mortgagor from the time his deed is recorded, and possession is taken thereunder, although the sale made by the trustee was ir- regular or premature ; and no actual notice to the mortgagor of the adverse nature of his claim is necessary to invoke the running of the statute of limitations for its protection.*^ Limitations run 46. Spicer v. Seale, 106 Ky. 246, or judicial sale: Cheesebrough v. 20 Ky. Law Eep. 1869, 50 S. W. 47. Parker, S5 Kan. 566 ; White v. Pinge- The statute of limitations runs not (Tex. Civ. App.), 90 S. W. 672. against the right of action of an ex- 49. Stout v. Rigney, 107 Fed. 545, ecution creditor, who purchases at a 46 C. C. A. 459 (Mo.). sale of incumbered real property, to Where a mortgagee enters into pos- forceclose his lien, thereby accjuired, session of the mortgaged premises un- from the time of his purchase. Due der a void foreclosure he is presumed V. Bankhardt, 151 Ky. 624, 152 S. W. to hold as mortgagee in possession, 786. and limitation does not run in his 47. Eines v. Mansfield, 96 Mo. 394, favor, or in favor of his grantees, 9 S. W. 798. against a suit by the mortgagor to en- 48. Smith v. Hamilton, 43 App. force the right of redemption, and to Div. 17, 59 N. Y. Supp. 521. an accounting, which is a continuing See also, as to title under forced right, unless there is an actual notice 134a Statutes of Limitation. against a bill to declare a deed absolute in form a mortgage, in fa- vor of a grantee in possession, from the time such possession became adverse to the grantor's title.^** A mortgagor's right to redeem will not be barred by any claim of possession by a mortgagee, etc., unless the possession is adverse.^^ A mortgagor's right of action to quiet to the mortgagor that they claim to hold in some other right, adverse to the mortgage. Eigney v. De Graw, 100 Fed. 213 (C. C, Mo.). 50. Minick i. Reichenbach, 97 Neb. 629, 150 jST. W. 1001. A grantor who claims that a deed, absolute in form, is a. mortgage, must proceed to enforce his claim within five years from the time the grantee asserts his a^dverse holding, whether the debt secured by the deed be paid or not. Cal. Code Civ. Proc. § 346. Peshine v. Ord, 119 Cal. 311, 51 Pac. 536, 63 Am. St. Rep. 131. While plaintiff vi^as in actual pos- session of land conveyed by absolute deed which was intended as a mort- gage, he had the right to regard the deed simply as security until such time as the grantee or successors in interest deprived him, or attempted to deprive him, of possession on the ground that the deed was absolute, and until that time the statute ot limitations would not begin to run against an action to have the deed declared a mortgage. Brown v. Sprad- lin, 136 Ky. 703, 135 S. W. 150. The statute of limitations did not run against an action to have a deed declared a mortgage while the gran- tor was making repeated demands for a reconveyance, and the grantee ■nfas promising to comply therewith. Clark V. Shoesmith, 91 Kan. 797, 139 Pac. 426 Where a party suing in 1894 to have a deed made in 1878 declared a mortgage was in continuous pos- session from 1870, the statute of lim- itations had no application. Porter V. White, 12« N. C. 42, 38 S. E. 24. 51. West V. Middlesex Banking Co., 33 S. D. 465, 146 N. W. 598. Where a mortgagee takes posses- sion of real estate under an agree- ment with the mortgagor to collect the rents and apply them on the debt, limitations will not begin to run against the mortgagor's right to re- deem until the mortgagee, with no- tice to the mortgagor asserts title in himself. Hunter v. Coffman, 74 Kan. 308, 86 Pac. 451. A cause of action of an owner of a fee to redeem from a mortgage which has been foreclosed, in a proceeding in which he was not served with pro- cess, accrued when the mortgage ma- tured. Dorsey v. Conrad, 49 Neb. 443, 68 N. W. 645. Where one in good faith claims title under a void foreclosure sale, and takes possession, such adverse possession puts the statute of limi- tations in motion against , the rem- edies of the mortgagor. Nash v. Northwest Land Co., 15 N. D. 566, 108 N. W. 792. Where a grantee of lands conveyed by deeds operating as mortgages en- tered into possession of the lands at the time of the conveyance under an agreement with the grantor that he should hold them fts security for a debt not then due, such possession does not constitute a continuing fore- 'Advekse PossESSioisr and Real Actions. 1341 title, recover possession, and redeem from the lien of the mort- gage accrues when the mortgagee takes possession with color of title to the fee and claim of ownership, and the ten year limita- tion^will then begin to run.^^ Where the interest of a junior mort- gagee is acquired before the debt secured by a first mortgage has matured, the statute of limitations begins to run in favor of the junior mortgagee from the time the right of action of the senior claimant against the mortgagor accrues.^ § 272b (6). Rights of heirs and devisees. The Arkansas five-year statute of limitations from a judical sale in which to sue the purchasers does not apply to an action by heirs for land sold at administrator's sale, the land having been allotted to his widow as dower, the sale being inoperative as to her dower, and the heirs not being entitled to assert their right to the land till after death of the doweress, which was after the five years.^* Where testator devised his real estate to his wife for life, closure, so as enable the grantor to maintain an action to redeem at any time during its continuance, free from limitations, since the right to foreclose did not accrue until the debt was due, and the right to re- deem was contemporaneous therewith. Adams v. Holden, 111 Iowa, 54, 83 N. W. 468. 52. Jackson v. Eohrberg, 94 Neb. 85, 142 N. W. 290. A suit to redeem from foreclosure is barred in 15 years from its accrual at the expiration of the year for statutory redemption. Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N. E. 37. A mortgagor held not precluded by the statute of limitations from en- forcing her rights under the mortgage. McKenney v. Page, 146 Ky. 683, 143 S. W. 383. Where the mortgage sued on contained no independent agree- ment to pay the money secured, it was barred after five years. Allen v. Shepherd, 162 Ky. 756, 173 S. W. 135. 53. Boucofski v. Jacobsen, 36 Utah 165, 104 Pac. 117. See, as to limitations in action to foreclose a mortgage, Wallace v. Cow- ard, 79 N. J. Eq. 343, 81 Atl. 739. 54. Martin v. Conner (Ark.), 171 S. W. 135. As adult heirs have no right to the possession of the homestead of the decedent until the termination of the homestead of a minor heir, which oc- curs on his reaching full age, limita- tions within which to sue for the pos- session of the homestead do not begin to run until the homestead right of the minor heir ceases. Smith v. Scott, 93 Ark. 143, 123 S. W. 501. Limitations begin to run against an action by the heirs to recover pos- session from an adverse holder of a homestead abandoned by the widow. 1342. Statutes of Limitation. limitations did not run against his heirs for the recovery of the property during her lifetime as against her grantee under a deed purporting to convey the fee.^^ In Illinois, limitations run against the right of the children of a deceased person to recover his home- stead, to which they were entitled as remaindermen, the widow being the life tenant, from the time that the widow released her dower and homestead rights in the premises to a purchaser thereof at an administrator's sale to pay decedent's debts.^" Limitations do not commence to run, in Indiana, against heirs of a widow en- titled to an interest in her husband's realty until her death, as they can maintain no action for its recovery until such event.^' In Maryland, where a will, which appointed no executor, directed the sale of all of testator's property, and after certain deductions that the proceeds be placed at interest for the support of testator's wife during her life, the legal title at once vested in the heirs at law, against whom limitations was not tolled by reason of the life estate of the widow.^* In Mississippi, under a devise of an undi- vided interest in lands in trust for the distributee until he has be- come a temperate and prudent man, and remained such for five years, whereupon the lands shall vest in him in fee, limitations do not nm against his right to have the lands partitioned, and to re- and of which they had notice, not from of limitations does not begin to run the widow's death, tout from the time against her heirs entitled to the re- it was abandoned by her. Killeam v. mainder until her husband's death, Carter, 65 Ark. 68, 44 S. W. 1033; notwithstanding his life .estate be- Grififin v. Dunn, 79 Ark. 408, 96 S. W. comes barred during his life by the 190, the statute does not run in favor statute of limitations, since such bar of the heirs during occupancy by the does not terminate the life estate so widow. as to merge it in the remainder, or 55. Winters v. Powell, 180 Ala. 425, vest the remainder in possession be- 61 So. 96. fore the life tenant's death. Dawson 56. Robb V. Howell, 180 111. 177, 54 v. Edwards, 189 111. 60, 59 N. E. 590. N. E. 324. 57. Bell v. Shaffer, 154 Ind. 413, 56 Where a wife, having an interest N. E. 217; Haskett v. Maxey, 134 by inheritance in certain realty, di«s Ind. 182, 33 N. E. 358, 19 L. E. A. after having living issue by her bus- 379. band, so that his life estate by court- 58. Baumeister v. Silver, 98 Md. esy becomes consummate, the statute 418, 56 Atl. 825. iAdvekse Possession and 'Real, Actions. 1343 cover his share, until he has for five consecutive years remained tem- perate, since his interest does not vest until then.^' In Missoiiri, where a widow conveyed her right to quarantine in the house and plantation of her deceased husband, and dower was not assigned to the widow, limitations did not begin to run against an action by a remainderman to recover the property from the grantee until the widow's death.^" In Oregon, where testator left all his prop- erty by an invalid will to his wife, and she transferred the land in question to defendant under a deed in fee simple, and he took possession of it, the right of action by the heirs to recover the property is not postponed until the death of the widow, although the deed might have transferred the widow's unassigned right of dower, as, before assignment, the right of dower does not give any right to possession. ^^ In South Carolina, the title of a devisee vests immediately on testator's death, and hence it is from that time that the statute of limitations commences to run against his right to recover the land."^ In Tennessee, the existence of a widow's unallotted right to dower in land w;ill not prevent the running of the statute of limitations against the heirs, who have conveyed in fee their undivided shares of the land subject to the dower, es- pecially where the dower right has been conveyed to the same pur- chaser.*^ In Texas, where testator devised to his wife an estate in 59. Millsaps v. Shotwell, 76 Miss. Pac. 212, rehearing, 99 Pao. 69, de- 923, 2i5 So. 359. nied. 60. Graham v. Stafford, 171 Mo. See Clarke v. Bundy, 29 Or. 190, 44 692, 72 S. W. 507; Holmes v. Kring, Pac. 282, holding that the running 93 Mo. 452, 6 S. W. 347, lyhere dower of the statute of limitations for re- is not assigned, a right of action on covery of land of decedent by an heir, the part of the heirs does not accrue pending administration, is not sus- until the widow's death; unless she pended, as against the heir, unless a-bandoned her right of dower. Quick the administrator took actual pos- V. Rufe, 164 Mo. 408, 64 S. W. 102. session thereof. Limitations do not begin to run 62. Satcher v. Grice, 53 S. C. 136, against a devisee of leased land, until 31 S. E. 3. the expiration of the lease. Sutton v. 63. Jackson v. Hodges, 2 Tenn. Oh. Dameron, 100 Mo. 141, 13 S. W. 497. 276. 61. Neal v. Davis, 53 Or. 423, 101 134:4 Statutes of Limitation. land whicli was to terminate on her remarriage, and the widow, for herseK and as independent executrix of the estate of testator, ex- ecuted a deed to the land, the statute of limitations did not begin to run against an action by the .heirs to recover the land from the purchaser until the remarriage of the widow.^* In Colorado, limitations commence to run against the heirs of a decedent to set aside a conveyance on the ground of mental incompetency from the time of the ancestor's death.^' In California, where a father, on receiving the custody of a minor child, orally agreed that such child should share equally with his only other child, a daughter, the right to set aside a conveyance to the daughter, made before his death, did not accrue until the death of the father without com- plying with the agreement.^^ In Iowa, limitations begin to run against a suit by heirs of a decedent to set aside probate of his will and quiet title in plaintiffs from the accruing of the cause of action upon the ancestor's death.^'' In Kentucky, limitations do not run against children with a right in property until the death of a grantee, who took for life under a parol agreement to convey to them at her death.^ § 272b (7). Tacking successive possession or right. A grantee of mortgaged premises may add to the time limitations have run in his favor since he acquired the land the time it had run in favor of his, grantors, in order to make up the aggregate period 64. Haring v. Shelton (Tex. Civ. death, could not have maintained an App.), 114 S. W. 389. action for his lands, limitations do Where the land set apart to an heir not run against them until after his in the partition proceedings was af- death. Wilson v. Fields (Tex. Civ. terwards sold as being a part of the App. ) , 50 S. W. 1024. estate, to satisfy claims of creditors, 65. Parker v. Betts, 47 Colo. 428, and such sale was invalid, the statute 107 Pac. 816. commenced to run in her favor from 66. Rogers v. Schlotterback, 167 the date of the judgment in parti- Cal. 35, 138 Pac. 728. tlon, and not from the date of the in- 67. Cooley v. JIaine, 163 Iowa 117, valid sale. Hardin v. Clark, 1 Tex. 143 N. W. 431. Civ. App. 565, 21 S. W. 977. 68. Becker v. Neurath, 149 Ky. Where heirs, prior to intestate's 421, 149 S. W. 857. iAdvebse Possession and E-eal Actions. 1345 required to bar the action to foreclose.*^ A naked trespasser with- out color of title cannot transmit his right to a successor, so as to enable the latter to couple the two possessions to make out the bar of the statute. But those having color of title may transfer their possession and convey their right, by conveyance, so as to enable the holder to connect the successive conveyances and possessions with his own right and possession.'"' § 272b (8). Forcible entry and detainer. Where one wrongfully or unlawfully enters on the possession of another, the wrongful entry is consummated the moment the entry is made, and the right to maintain the action of forcible entry and detainer vests at once in him whose possession is thus invaded.''^ Limitations against an action of forcible entry and detainer against a tenant holding at sufferance begins to run against the landlord on the termination of the tenancy.'^ The right of action in a forcible entry and detainer case between adverse claimants of a homestead accrues when the contest is finally adjudicated in the land office.'^ If defendants in unlawful detainer attorned to the plaintiff within three years before the bringing of the suit, the statute of limita- tions was not available to them.''* § 272c. Recent English decisions. In the notes to this section a summary of late English case law, showing the application made by the courts of England of the statutes of limitations to actions relating to land and actions on specialties and for legacies, will be found. It covers the construc- 69. Paine v. Dodds, 14 N. D. 189, 71. Nauman v. Burch, 91 111. App. 103 N. W. 931, 116 Am. St. Eep. 674. 48. 70. Nelson v. Trigg, 7Z Tenn. (4 72. Clark v. Tukey Land Co., 75 Lea) 701. Neb. 326, 106 N. W. 328. See Shortall v. Hinckley, 31 111. 73. Cope v. Braden, 11 Okl. 291, 67 2il9; Bentley v. Newlon, 9 Ohio St. Pac. 475. 489, as to tacking successive posses- 74. Barnewell v. Stephens, 142 Ala. aions. 609, 38 So. 663. 85 134S Statutes of Limitation. tion of the statutes and subject matters to whicli they relate;'^ the application of the statutes to particular persons, such as land- lord and tenant,™ joint tenants and tenants in common," trustee 75. Land Tax — Eedemption by les- see — ^Money paid as consideration — Annual sum payable by way of inter- est — Sum of money " charged upon " land — "Rent." Skene v. Cook, 71 L. J., K. B. 446; (1902) 1 K. B. 682; 86 L. T. 319; 50 W. R. 506; 18 T. L. E. 431— C. A. Unclaimed dividends — Reduction of capital — Return of moneys to share- holders — ^Sanction of court — ^Moneys not claimed — Statutory period of limitation. Artizans' Land & Mort- gage Corporation, In re, 73 L. J., Ch. 581; (1904) 1 Ch. 796; 52 W. E. 330; 13 Manson 98. Smith V. Cork & Bandon Railway, Ir. R. 5 Eq. 65, and Drogheda Steam Packet Co., In re, (1903) 1 Ir. R. 513, followed. lb. Vesting of real estate — Title — Legal estate — Private partnership — ■ " Company duly constituted by law " — Registration — Trustee — Posses- sion. Cussons, Ltd., In re, 73 L. J., Ch. 396; 11 Manson 192. Kibble v. Fairthorne, 64 L. J., Oh. 184; (1895) 1 Ch. 219, applied. Restrictive covenant — Possessory title — ^Constructive notice — Purchaser. Nisbet and Potts' Contract, In re, 75 L. J., Ch. 238; (1906) 1 Ch. 386; 94 L. T. 297; 54 W. R. 286; 22 T. L. E. 233—0. A. London & Southwestern Railway V. Gomm, 51 L. J., Ch. 530, 532; 20 Ch. D. 562, 582 and Cox and Neve's Contract, In re, (1891) 2 Ch. D. 109, 117, applied. lb. Dower — ^Action for assignment of dower — Time for ascertaining value. Williams v. Thomas, 78 L. J., Ch. 473; (1909) 1 Ch. 713; 100 L. T. 630 — C. A. Marshall v. Smith, 34 L. J., Ch. 189 ; 5 Giflf. 37, considered and overruled in part. Lease of minerals — Severance of re- version — 'So apportionment of rent — Payment to one reversioner. Mitchell V. Mosley, 108 L. T. 326; 57 S. J. 340; 29 T. L. E. 373. Affirmed, 58 S. J. 218; 30 T. L. E. 29— C. A. Mines and minerals — Land subject to mining lease — Conveyance of part of land — ^Conveyance of reversion — Severance of reversion — Apportion- able rent. Mitchell v. Mosley, 83 L. J., Ch. 135; (1914) 1 Ch. 438; 109 L. T. 648; 58 S. J. 218; 30 T. L. E. 29— C. A. 76. Invalid lease by municipal cor- poration — Agreement to surrender ex- isting lease in exchange for continu- ance of existing lease — 'Estoppel. Canterbury Corporation v. Cooper, 100 L. T. 597; 73 J. P. 225; 7 L. G. R. 908; 53 S. J. 301— C. A. Tenant of land — Adverse posses- sion — ^Arrears of rent. Jolly, In re; Gathercole v. Norfolk, 69 L. J., Ch. 661; (1900) 2 Ch. 616; 83 L. T. 118; 48 W. E. 657; 16 T. L. E. 521— C. A. Tenancy at will — Determination — Cr&atiou of fresh tenancy. Jarman V. Hale, 68 L. J., Q. B. 681; (1899) 1 Q. B. 994— D. Determination of tenancy at will — Entry by landlord to repair. Lynea V. Snaith, 68 L. J., Q. B. 275; (1899) 1 Q. B. 486; 80 L. T. 123; 47 W. R. 411; 15 T. L. R. 184 — D. 77. A tenant in common who has been in actual possession of part of 'Adveese Possession and Eeal Actions. 1347 and cestui que trust^^ mortgagor and mortgagee,™ executors, admin- istrators, devisees, legatees and heirs,*" persons claiming under a coal mine must be treated, as against his co-tenants, as a stranger in possession of a separate tenement BO far as regards the undivided shares of his co-tenants. The Real Property Limitation Act, 1833, there- fore applies, and after twelve years gives him a statutory title to so much of the coal as he has actually gotten, but to no more, unless the court finds that there is just reason for infer- ring constructive possession of a ■wider area. Glyn v. Howell, 78 L. J., Ch. 391; (1909) 1 Ch. 666; 100 L. T. 324; 53 S. J. 269. Job v. Pot- ton, 44 L. J., Ch. 262; L. R. 20 Eq. 84, considered. Next of kin remaining in posses- sion. Smith v. Savage, (1906) 1 Ir. E. 469; Coyle v. McFadden, (1901) 1 Ir. R. 298. 78. Trustee ceasing to he executor — Breach of trust — ^Account — Real Property Limitation Act. Timmis, In re; Nixon v. Smith, 71 L. J., Ch. US; (1902) 1 Ch. 176; 85 L. T. 672; 60 W. R. 164. 79. Mortgage of reversionary estate in realty — Action on covenant. Kirk- land V. Peatfield, 72 L. J. K. B. 355; (1903) 1 K. B. 756; 88 L. T. 472; 51 W. R. 544; 19 T. L. R. 362. Sut- ton V. Sutton, 52 L. J., Ch. 333; 22 Ch. D. 511, followed. Mortgage — Real estate — Trust for sale — Proceeds of sale. Fox, In re; Brooks V. Marston, 82 L. J., Ch. 393 ; (1913) 2 Ch. 75; 108 L. T. 948. Hazeldine's Trusts, In re, 77 L. J., Ch. 97; (1908) 1 Ch. 34, and Kirk- land V. Peatfield, supra, followed. Mortgagor and mortgagee — Claim for account and recovery of rents by second mortgagee against first mort- gagee. Ocean Accident & Guarantee Corporation v. CoUum, (1913) 1 Ir. R. 338. Foreclosure — Recovery of land — Payment of interest by mortgagor or his agent — Person bound as between himself and mortgagor to pay. Bradshaw v. Widdrington, 71 L. .T., Ch. 6i27; (1903) 2 Ch. 430; 86 L. T. 726 ; 50 W. R. 561— C. A. Action for recovery of land — Mort- gage — Payment of interest by mort- gagor — ^Mortgagee and trespasser. Ludbrook v. Ludbrook, 70 L. J., K. B. 552; (1901) 2 K. B. 96; 84 L. T. 485; 49 W. R. 465; 17 T. L. R. 3^7. Equity of redemption — Freeholds, Copyholds and Policy of Insurance. Charter v. Watson, 68 L. J., Ch. 1; (1899) 1 Ch. 175; -47 W. R. 350; 79 L. T. 440. Foreclosure action by puisne mort- gagee — Entry of prior mortgagee dur- ing running of statutory period — Future estate or interest — ^Suspension of period. Johnson v. Brock, 76 L. J., Ch.- 602; (1907) & Ch. 533; 97 L. T. 294. Dictum in Kibble v. Fair- thorne, 64 L. J., Ch. 184; (1895) 1 Ch. 819, not followed. ■Mortgage — Inclusion in deed of power of sale. Cronin, In re, (1914) 1 Ir. R. 23. Presumption of payment of inter- est — ^Owner of portion of lands being also owner or tenant for life of mort- gage. Pinnegan's Estate, In re, (1906) 1 Ir. E. 370. Acknowledgment in writing after bar of statute. Beamish v. Whitney, (1909) 1 Ir. R. 360. 80. Express trustees — Executors. 1348 Statutes op Limitation. land clauses acts,*^ and persons under disabilities;** possession In the absence of special circum- stances, executors are not, prior to the Executors' Act, 1830, regarded by courts of equity as express trus- tees, and the trusteeship created by that Act was not intended to be dif- ferent in its nature from that which previously existed. Lacy, In re; Royal General Theatrical Fund As- sociation V. Kydd, 68 L. J., Ch. 488; (1899) 2 Ch. 149; 80 L. T. 706; 47 W. E. 664. Salter v. Cavanagh, 1 Dr. & Wal. 668, anid Patrick v. Simpson, 59 L. J., Q. B. 7 ; 24 Q. B. D. 128, dis- tinguished. Administration — Executors — Eight of one only of several execu- tors to receive and give discharge — Recovery of fund. Pardee, In re; McLaughlin v. Penny, 75 L. J., Ch. 161; (1906) 1 Ch. .265; 94 L. T. 88; 54 W. R. 210. Reversed on facts, 75 L. J., Ch. 748; (1906) 3 Ch. 340:; 95 L. T. 513. Will — ^Action to recover legacy — Express trust. Mackay, In re; Mac- kay v. Gould, 75 L. J., Ch. 47; (1906) 1 Ch. 25; 93 L. T. 694; 54 W. R. 88. Action to recover legacy. The period of limitation is 12 years from the death of the testator, not from the expiration of one year after his death. Waddell v. Harshaw, (1905) 1 Ir. R. 416— C. A. Real Estate — ^Mortgage containing covenants for the payment of princi- pal and interest — Specific devise sub- ject to mortgage — Payment of inter- est by devisee — Effect of payment — Other specifically devised real estate — ^Right to administration. Lacey, In re; Howard v. Lightfoot, 76 L. J., Ch. 316; (1907) 1 Ch. 330; 96 L. T. 306; 51 S. J. 67— C. A. Roddam v. Morley, 26 L. J., Ch. 438; 1 DeG. k J. 1, and Leahy v. De Moleyns, (1896) 1 Ir. R. 206, ap- plied. Dickinson v. Teasdale, 32 L. J., Ch. 37; 1 DeG. J. & S. 52, and Coope V. Cresswell, 36 L. J., Ch. 114; L. R. 3 Ch. 112, discussed and not followed. Bradshaw v. Widdrington, 71 L. J., Ch. 627; (1902) 3 Ch. 430, considered. lb. Executor de son tort — Chattels real — Next of kin — ^Administrator. Doyle V. Foley, (1903) 2 Ir. R. 95— K. B. D. Will — ^Money charge on land — ^Con- tribution between specific and residu- ary devisees^ — Unity of possession — Presumption of payment of interest on charge by tenant for life. Allen, In re; Bassett v. Allen, 67 L. J., Oh. 614; Bassett v. Allen, 67 L. J., Ch. 614; (1898) 2 Ch. 499; 79 L. T. 107; 47 W. R. 55. England, In re; Steward v. Eng- land, 65 L. J., Ch. 21; (1895) 2 Ch. 820. 81. Land purchased for undertak- ing — Tunnel — Superfluous land — Dis- continuance of possession — Possession of surface by stranger — Telegraph wires over tunnel — Title tO' surface and space above. Midland Railway v. Wright, 70 L. J., Ch. 411; (1901) 1 Ch. 738; 84 L. T. 225; 49 W. R. 474. 82. Bailiff for infants— Change of possession. Maguire & McClelland's Contract, In re, (1907) 1 Ir. R. 393 — C. A. Infancy — ^Adverse possession — Sub- sequent accruer of infant's title. Garner v. Wingrove, 74 L. J., Ch. 545; (1905) 2 Ch. 233; 93 L. T. 131; 53 W. R. 588. Murray v. Watkins, 62 L. T. 796, followed. Copyholds — Custom of manor-Title iAdveese Possession- and Real Actions. 1349 generally/* consecutive/* and adverse/^ right of entry /^ charges — Possession — ^Married woman — Dis- aibility — Husband suing in right of wife — Will — Construction — "Es- tate." Hounsell v. Dunning, 71 L. J., Ch. 359; (1902) 1 Ch. 512; 86 L. T. 383. 83. Purchase by railway — ^Expira- tion of powers. A railway company can purchase minerals after the expiration of its statutory powers to purchase if such purchase is reasonably incident to its business. Thompson v. Hickman, 76 L. J., Ch. 254; (1907) 1 Ch. 550; 96 L. T. 454; 23 T. L. E. 311. Wrongful working — No title 'by statute of limitations. Where a mine owner wrongfully works an adjoining seam of coal for more than 13 years before action brought, he acquires no title to such seam under the statute of limitations. Ashton V. Stock, 6 Ch. D. 719, fol- lowed, lb. Wrongful worliing of coal — Tenants in common — Actual possession — Con- structive possession — ^Adverse posses- sion. Glyn V. Howell, 78 L. J., Oh. 391; (1909) 1 Ch. 666; 100 L. T. 324; 53 S. J. 269. 84. Title by possession — Devisable interest — E j ectment. A person in possession of land without any title thereto has a de- visable interest, and a statutory title may be acquired by the possession of the testator and Iiis devisees. Calder V. Alexander, 16 T. L. R. 294. 85. Accrual of riglit of action. Connolly v. Leahy, (1899) 2 Ir. E. 344— Q. B. D. Land — Acts of possession — Dispos- session of true owner — Right of way — ^Equivocal acts. Littledale v. Liver- pool College, 69 L. J., Ch. 87; (1900) 1 Ch. 19; 81 L. T. 564; 48 W. E. 177; 16 T. L. R. 44— C. A. Will — Purported disposition of realty — Incapacity to dispose. An- derson, In re; Pegler v. Gillatt, 74 L. J., Ch. 433; (1905) 2 Ch. 70; 93 L. T. 725; 53 W. E. 510. The principle of Board v. Board, 43 L. J., Q. B. 4; L. E. 9, Q. B. 48, does not apply to the case of a per- son who has a good title to property, but is not competent to dispose of it. Paine v. Jones, 43 L. J., Ch. 787; L. R. 18 Eq. 320, applied. lb. Trespass to Land — Adjoining Own- ers — Wall within Boundary Line — Strip Outside Wall — ^Abandonment — Adverse possession — Acts of ■ Owner- ship. — When a person claims to have acquired a possessory title in law under the Eeal Property Limitation Act, 1833, upon the abandonment of possession by the original owner, he must prove not only a discontinuance of possession by the original owner for the statutory period, but also acta of possession by himself. Norton v. London & Northwestern Ey., 13 Ch. Div. 268, and Marshall v. Taylor, 64 L. J. Ch. 416; (1895) 1 Ch. 641, fol- lowed. Kynooh, Lim. v. Eowlands, 81 L. J., Ch. 340; (1912) 1 Ch. 527; 106 L. T. 316— C. A. The mere stray- ing of cattle over a known boundary by reason of there being no fence is not an act of such exclusive posses- sion as will enable the trespasser whose cattle has so strayed on to land of an adjoining owner to acquire a statutory title as against the true owner. lb. Discontinuance of. — ^Acts of owner- ship — Intention to exclude owner — 1350 Statutes of Limitation. on land 5^' ecclesiastical and charitable property;*^ concealed fraud f^ and arrears of rent and interest.^" The manner and extent to which the rules and principles of the older authorities, elsewhere cited herein, have been approved and followed, or modified, distin- guished, or reversed, is also shown. Foreshore. Philpot v. Bath, 21 T. L. R. 634—0. A. User of land. — ^Vernon's Estate, In re, (1901) 1 Ir. R. 1. 86. " Particular estate '' — " Future estate or interest " — Reversion ex- pectant on a term of years — ^Sur- render of term^ — Accrual of right of entry. Walter v. Yalden, 71 L. J., K B. 693; (1902) a K. B. 304; 87 L. T. 97; 51 W. R. 4&; 18 T. L. R. 668— D. Real Property — Accrual of right of action — Trustee — Cestui que trust of lessee — ^Accretion to demised prop- erty. East Stonehouse Urban Coun- cil V. Willoughby, 71 L. J., K. B. 873; (1902) S K. B. 318; 87 L. T. 366; 50 W. R. 698. 87. Equitable charge on lands' ap- pointed in certain shares — Interest Young V. Lord Waterpark, 8 L. J., Ch. 214, distinguished. Power's Es- tates, In re, (1913) 1 Ir. R. 530. Rentcharge — -Covenant to pay — Remedy on covenant barred — ^Remedy against land. Shavr v. Crompton, 80 L. J., K. B. 53; (1910) a K. B. 370; 103 L. T. 501— D. Settlement — Term of years — Money charged upon land — Express trust. Williams v. Williams, 69 L. J., Ch. 77; (1900) 1 Ch. 152; 81 L. T. 804; 48 W. R. 245. Charity. Drake's Estate, In re, (1909) 1 Ir. R. 136— C. A. Commissioners of Charitable Dona- tions and Bequests v. Wybrants, 2 Jo. & Lat. 182, not followed. Hughes v. Coles, 53 L. J., Ch. 1047; 27 Ch. D. 231, disapproved. lb. 88. Rent — ^Charity — Express trust. Montalt's Estate, In re, (1909) 1 Ir. R. 390. Drake's Estate, In re, (1909) 1 Ir. R. 136, distinguished. Hughes V. Ctoles, 53 L. J., Ch. 1047; 27 Oh. D. 231, followed. lb. Title rent charge — Discontinuance of receipt — ^Subsequent receipt from person not liable. Winter's Estate, In re, (1908) 1 Ir. R. 529—0. A. 89. Real property — Possession. Mc- Callum, In re; McCallum v. McCaJ- lum, 70 L. J., Ch. 206; (1901) 1 Oh. 143; 83 L. T. 717; 49 W. R.,129; 17 T. L. R. 113—0. A. 90. Administration of real and per- sonal estate — Claim upon covenant in mortgage deed — Amount of interest recoverable. Thompson v. Hurly, (1905) 1 Ir. R. 588— M. E. DowEE. 1351 CHAPTEK XXV. DoWEE. Section 273. Not within the statute, unless made so expressly. 273a (1). Proceedings for assignment or recovery of dower. Limi- tations applicable. 273a (2). Actions for dower. Limitations and laches. § 873. Not within the statute, unless made so expressly. Except where specially so provided, a widow's right to dower is not tarred hy the statutes of limitations in the several States.-^ The writ of dower unde nihil habet is a real action, which lies for the recovery of dower where none has been assigned.^ So, too, courts of equity have concurrent jurisdiction vnth courts of law, and can both assign dower to the widow and assess and award damages;^ and' in some of the States courts of probate are by statute invested with this power, and this statutory remedy has taken the place of the common-law remedy. The writ of dower was not within either the statute of Henry VIII. or James I., and the only method of avoiding it was by a fine levied by the husband, or his alienee or heir, which, under the statute of non-claims, barred the vnfe unless she brought her action within five years after her title accrued, and the removal of her disabilities, if any.* It will not be profitable to review the office, purposes, and nature of writs of dower, as that is not germane to our subject, and also 1. Barnard v. Edward, 4 N. H. 2. Booth on Real Actions, 166; and 107, 17 Am. Dec. 403; Bordly "v. according to this author there is still Clayton, 5 Harr. (Del.) 154; May v. another writ, called the writ of right Rumney, 1 Mich. 1; Mitchell v. of dower, which, however, is obsolete, Payas, 1 N. & McCord (S. C.) 85; or at least seldom employed in prac- Wakeman v. Eoache, Dudley (Ga.) tiee, although it was formerly used 123; Parker v. O'Bear, 48 Mass. (7 in cases where a part of the dower Mete.) 34; Owen v. Campbell, 33 Ala. had been received. 521; Tooke v. Hardeman, 7 Ga. 20. 3. 4 Kent's Com. 71, 73. 4. Park on Dower, 311. 1352 Statutes of Limitatioh'. because they have been so generally superseded by statutory and equibtale remedies, that they are not generally resorted to in practice. In many of the States, a widow's claim to dower is expressly brought within either the general statute of limitations, or a special limitation is imposed by the statute providing for dower. This is the case in Georgia, where the widow's applica- tion is limited to seven years after the husband's death ;^ but prior to the act of 1839 her right was not within the statute, and was not barred by the mere lapse of time.^ In Iowa, by statute, the right of dower is not destroyed, but the remedy for its ad- measurement in the County Court is barred in ten years ; but it is held that courts of equity may assign it after that time.'' In Indiana, the widow's right of dower is barred in twenty years after her disabilities, if any, are removed.^ Such, also, is the provision in Ohio, except that the limitation is twenty-one years.* In New Hampshire, the period of limitation is twenty years, and the statute attaches from the time when the widow's right to a writ of dower accrues after demand, and not from the time of her husband's death.^" In North Carolina, it is held that the statute does not apply until dower is assigned,^^ and the same rule also prevails in Missouri.^ In Pennsylvania, the statute runs against a claim for dower, by action of dower, unde nihil hahet.^ In New York, a claim for dower is barred absolutely in twenty years." In New Jersey, actions for dower are held to be within the statute.^^ So in South Carolina.^" In Michigan, it is held 5. Tooke V. Hardeman, 7 Ga. 20. 10. Robie v. Flanders, 33 N. H. 6. Chapman v. Schroeder, 10 Ga. 524. 321. 11. Spencer v. Weston, 18 N. C. (1 7. Starry v. Starry, 21 Iowa 254. Dev. & B.) 213. 8. Harding v. Third Presbyterian 12. Johns v. Fenton, 88 Mo. 64; Church, 20 Ind. 71. Littleton v. Paterson, 32 Mo. 337. 9. In Tuttle v. Willson, 10 Ohio 13. Care v. Keller, 77 Pa. 487. 24, it was held that by the lapse of 14. Westfall v. Westfall, 16 Hun twenty-one years the right of dower (N. Y.) 541. was not only barred at law, but also 15. Berrian v. Conover, 16 N. J. in equity. Law 107; Conover v. Wright, 6 N. J. Do WEE. 1353 that as dower, like other landed interests, can be reached only by the statutory action of ejectment, it is barred by the statutory limitation upon that action." In Arkansas, it is held that the statute does not run against a widow's claim for dower while the heirs of her husband are in possession of his land, but that the rule is otherwise where a purchaser is in possession.^^ In Ala- bama, the statute applies to a suit or proceedings for dower, whether the application is made by the widow or by an heir.-^' In Massachusetts, dower is now within the statute.^' In Mary- land, where until quite recently the statute was almost identical with the statute of James, dower was held not to be within the statute ;^^ but it is within the present statute. In England, un- Eq. 613, 47 Am. Dec. 213, reversing the same case, id. 483, in which it was held that the statute did not ap- ply to dower. 16. Wilson V. McLenagan, 1 Mo- ■■ Mul. Eq. (S. C.) 35; Eamsay v. Dozier, 3 Brev. (S. C.) 246. But see Mitchell V. Poyas, 1 N. & McCord (S. C.) 85, contra. 17. Proctor v. Bigelow, 38 Mich. 882; Beebe v. Lyle, 73 Mich. 114, 40 N. W. 944. 18. Livingston v. Cochran, 33 Ar- kansas, 294. 19. Farmer v. Ray, 42 Ala. 125, 94 Am. Dec. 633. 20. Pub. Stats., c 124, § 14. The ease of Parker v. Obear, 48 Mass. (7 Mete.) 24, was decided in 1848, be- fore this statute was adopted. Mass. Pub. Stats., c. 124, § 13, en- abling a widow to claim her interest after occupying in common with the heirs, was held, in Hastings v. Mace, 157 Mass. 499, 32 N. E. 668, not to 'bar a widow who had for more than twenty years occupied with his heirs land of which her husband died seised, and she was held entitled to petition for the assignment of her dower when, after the expiration of twenty years, the heirs sought to hold the land in severalty. But where the widow had not continued to oc- cupy the lands with the heirs or de- visees of her deceased husband, or to receive her share of the rents, issues, and profits, and where the land has passed into the hands of a hona fide purchaser for value without notice of her claim or right, or of the fact that she occupied or received the rents with her husband's heirs or de- visees, her action cannot be main- tained unless commenced within twenty years after her husband's death. O'Gara v. Neylon, 161 Mass. 140, 36 N. E. 743. See Smith v. Shaw, 150 Mass. 297; Osborn v. Wel- don, 146 Mo. 185; Winters v. De Turck, 133 Pa. 359, 19 Atl. 354, 7 L. E. A. 658 ; Lyebrook v. Hall, 73 Miss. 509; Thompson v. McCorkle, 136 Ind. 484, 34 N. E. 813, 36 N. E. 211, 43 Am. St. Rep. 334. 21. Watts V. Beall, 2 G. & J. (Md.) 468; Kiddall v. Trimble, 1 Md. Ch. 1354 Statutes op Limitation. der the statute 3 and 4 Wm. IV., c. 27, no suit for dower can be maintained unless brought within twenty years after the death of the husband, and no action for an account of the rents and profits of the dowable land after six years. § 273a(l). Proceedings for assignment or recovery of dower — Limitations applicable. An action by a mortgagor's widow to recover dower in the land against one holding under a foreclosure sale is subject to the Ar- kansas seven-year statute of limitations.^^ In Missouri, an action for enforcement of dower is barred by the thirty-one-year statute of limitations, where no person under whom plaintiff claimed had been in possession for thirty years, and no such person had paid any taxes on the premises for thirty-one years.^^ Under the Iowa statute, providing that actions for the recovery of real property must be brought within ten years after the accrual of the cause of action, an action for partition by a widow against a stranger claim- ing the entire title under a deed from the husband, under which he has been in actual possession not only as against him for the statu- tory period, but also as against the widow for more than ten years after the death of the husband, is barred by limitations.^* The right to dower is unlike any other right to land known to the law, and its peculiar nature is such as to exempt it from the operation of all general statutes of limitations, however broad and comprehen- sive, in which it is not named, or by unavoidable implication in- cluded.^^ Under the iN'ebraska statute, limiting the time within which actions for the recovery of realty may be brought to ten years, an action for dower must be brought within ten years from 143 ; Sellman v. Bowen, 8 G. & J. sale shall be brought within five years (Md.) 50, 29 Am. Dee. 524. from the date of the sale. 22. Fourche Eiver Lumber Co. T. 23. Jodd v. Mehrtens, 262 Mo. 391, Walker, 96 Ark. 540, 132 S. W. 451, 171 S. W. 322. and is not subject to Kirby's Dig., § 24. Britt v. Gordon, 132 Iowa 431, 50'60, declaring that all actions 108 N. W. 319, under Iowa Code, § against a purchaser, his heirs or as- 3447, subd. 7. signs, to recover land sold at judicial 25. May v. Rumney, 1 Mich. (Man.) 1. DowEE. 1355 the time it accrued.^ Under the Indiana statute, whicli provides that a widow shall not have dower as against a purchase money mortgage, though she did not join in it, the right of foreclosure is not barred against her by lapse of time until the expiration of the twenty-year statute of limitation, which applies to a party to the mortgage.^'' In Kentucky, an action to recover dower is barred within fifteen years after the cause of action accrues. ^^ The lapse of seven years after the death of the widow of a vendor of land is a bar to an action by the heirs of the grantee and their privies, to recover that part of the land assigned to her as dower.^ A suit brought by a widow to set aside an instrument by which she elected to accept certain provisions of the will in lieu of dower is not a proceeding for the recovery of dower, within the provision of the New York Eevised Statutes requiring her to take such a proceed- ing within a year.^" A suit brought by a widow to set aside a sur- render of her homestead and certain subsequent deeds to the prop- erty, and to have her homestead rights therein declared, is an ac- tion to recover real property, and is barred by California Code Civ. Proc, § 318, providing a limitation of five years for such an ac- tion.^^ § 273a (2). Actions for dower — Limitations and laches. In Uew York, it is now held that section 1596 of the Code of Civil Procedure, which provides that an action for dower must be 26. Beall v. McMenemy, 63 Neb. 28. Anderson's Trustee v. Sterritt, 70, 88 N. W. 134, 93 Am. St. Ilep. 79 Ky. 499, 3 Ky. Law Rep. 277, un- 437, under Neb. Code Civ. Proc, § 6. der Ky. Gen. St. c. 21, § 3, and Gen. Under West Virginia Code 1899, c. St. c. 71, § 9, art. 3. 104, § 1, limiting the time within 29. Bums v. Headeriek, '85 Tenn. which actions to recover land shall be ( 1 Pickle) 102, 2 S. W. 259. brought, the statutory bar to an ac- 30. Chamberlain v. Chamberlain, tion by a widow to recover dower is 43 N. Y. 424. 10 years from the death of her hus- 31. Daniels v. Dean, 2 Cal. App. band, unless she is in possession and 421, 84 Pac. 332. taking the rents and profits in com- A charge on land for the benefit of mon with the heirs. Sperry v. a widow is barred by limitation in 21 Swiger, 54 W. Va. 283, 46 S. E. 125. years in Pennsylvania, under Act 27. Leonard v. Binford, 122 Ind. April 27, 1855 (P. L. 368). In re 300, 23 N. E. 704, under Rev. St. Ind. DeHaven's Estate, 25 Pa. Super. Ct 1881, § 2495. Sm. 1356 Statutes op Limitation. brought witMn twenty years of the husband's death, is an exclusive statute of limitations in actions for dower, and section 401 of the Code, providing limitations generally, does not apply.^^ In lowa,^^ Missouri,^* Kentueky,^^ a wife's right of action for as- signment of her dower accrues immediately upon the death of her husband and the statute of limitations does not begin to run against the dower interest of the wife until the husband's death. In Alabama, it has been held that a widow's right of dower was not barred by statutory limitations, though her action was not brought within twenty years after her husband's death, the ten-year limi- tation provision of the Code 1907, § 3837, not going into effect un- til 1907.^^ In Arkansas, it is held that the duty of the heirs of a husband to assign dower is a continuing one, and the fact that they remain in possession after his death does not set the statute of limi- 32. Wetyen v. Fick, 178 N. Y. 233, 70 N. E. 497, aff'g judg. 90 App. Div. 43, 85 N. y. Supp. 592, and the stat- ute is not prevented from running be- cause the life tenant and owners in fee were nonresidents. 33. Lucas v. White, 120 Iowa 735, 95 N". W. 209, 98 Am. St. Rep. 380; Lueas v. Whitacre, 131 Iowa 251, 96 N. W. 776. A widow occupying a homestead for more than 10 years after her hus- band's death is not precluded from asserting her right to dower, which she has elected to i^ke in lieu of homestead, by Iowa Code, § 3369, which limits the time within which application for dower may be made to 10 years, since the remedy therein provided is not exclusive. Wold v. Berkholtz, 10.5 Iowa 370, 75 N. W. 329. Section 3369 does not apply to an action in equity or for the parti- tion of a, distributive share, and the general statute of limitations applies to such an action. Britt v. Gordon, 132 Iowa 431, 108 N. W. 319. Where a wife is induced by fraud to execute an antenuptial agreement waiving her dower rights, limitations do not begin to run in favor of her husband's estate and against her ac- tion to set aside the agreement until her right of dower has ripened; but the rule is otherwise as to third per- sons. Eankin v. Schiereck, 166 Iowa 10, 147 N. W. 180. 34. McCrillis v. Thomas, 110 Mo. App. 699, 85 S. W. 673 ; Joplin Brew- ing Co. V. Payne, 197 Mo. 422, 94 S. W. 896, 114 Am. St. Eepi 770. A dower right not asserted for 10 years after the death of the husband is barred by limitations. Id.; Jodd V. St. Louis, etc. Ry. Co., 168 S. W. 611; Harrison v. McReynolds, 183 Mo. 533, 82 S. W. 120. Limitations do not run against the heirs' action to have dower assigned, in favor of one claiming under the widow, until her death. Carey v. West, 139 Mo. 146, 40 S. W. 661. 35. Winchester v. Keith, 24 Ky. Law Rep. 1033, 70 S. W. 664. 36. Vaughn v. Vaughn, 180 Ala. 212, 60 So. 872. DOWEE. 1357 tations in motion against the widow.^'' It is held in West Virginia that the right of a widow to sue for dower accrues on her hus- band's death, so that her right of action under the statute is barred in ten years after his death.^* Until dower has been allotted to a widow, limitations do not run against her cause of action to recover the possession of the same.^* Limitations begin to run against a widow claiming under dower under the Kansas statute, when the husband makes a convey- ance of such property without the wife joining therein and the grantee takes adverse possession thereof.*" 37. Brinkley v. Taylor, 111 Ark. 305, 163 S. W. 531. See also, Grober V. Clements, 71 Ark. 565, 100 Am. St. Rep. 91. An action by a widow to recover dower in the mortgaged lands of her husband after foreclosure, being an ac- tion to enforce a legal right, laches is not aivailable as a defense thereto. Fourche River Lumber Co. v. Walker, 96 Ark. 540, 133 S. W. 451. See as to the rules as to laches in New Jer- sey, Turner v. Kuehnlye, 71 N. J. Eq. 466, 64 Atl. 478. Inaction for 18 months does not constitute laches in Illinois which will bar the right to a widow's award. Fiek v. Armstrong, 136 111. App. 36. See also, Brumback V. Brumback, 198 111. 66, 64 N. E. 741, holding that a widow in joint possession with others cannot be pre- cluded by laches from maintaining an action for dower. Eor the rule as to laches in Rhode Island, see Hunt v. Reilly, 33 R. L. 471, 50 Atl. 833. 38. Morris v. Roseberry, 46 W. Va. 84, 33 S. E. 1019. Limitations do not run against the dower right of a testator's widow while in possession under a will de- vising land to her, to hold until his youngest child attains' majority. Sperry v. Swiger, 54 W. Va. 383, 46 S. E. 135. 39. Bartee v. Edmunds, 39 Ky. Law Rep. 873, 96 S. W. 535. Where judgment creditors, to whom a deed had been made in an equit- able action, had an action to recover possession of a lot when the deed was made in 1881, but the wife of the judgment debtor had a dower interest in the lot until her death in 1905, an action to recover the lot, not brought until 1911, was barred as to two- thirds thereof, but not as against the one-third dower interest. Garrison v. Clark, 151 Ky. 565, 153 S. W. 581. And see Dixon v. Harris, 33 Ky. Law Rep. 375, 105 S. W. 451. 40. French v. Poole, 83 Kan. 881, 111 Pae. 488, under Kan. Gen. St. 1901, § 3510, providing that one-half in value of all the realty in which a husband at any time during marriage had a legal or equitable interest which has not been sold on judicial sale, and is not necessary foi- payment of debts, and of which the wife has made no conveyance, shall, under the di- rection of the probate court, be set apart by the executor as her prop- erty, upon the death of her husband, if she survives him.. 1358 Statutes of Limitation. CHAPTER XXVI. Feaud, Ignoeance, Mistake, and Concealment of Cause op Action. Section 274. Statutory provisions as to fraud. 275. Equitable rule in cases of concealed fraud. 276. Instances in which the statute will not run until fraud is dis- covered. Fraud as ground of relief. In general. Fraud in obtaining possession of or title to property. Cancellation of instrument. Discovery of fraud. In general. ) . What constitutes cause for relief on ground of fraud. Fraud in obtaining possession of or title to property. Fraud in obtaining judgment. Action for deceit. Fraud in sale of property. ). Fraud of person acting in official or fiduciary capacity. Fraud of agent or attorney. Actions to open account or settlement. . Cancellation of instruments. 276b (11). Diligence in discovering fraud. 276b (12). What constitutes discovery of fraud. 276b (13). Constructive notice of fraud. 276c ( 1 ) . Ignorance of cause of action In general. 276c (2). Want of diligence by person entitled to sue. 276d ( 1 ) . Mistake as ground for relief. In general. 276d (2). Discovery of mistake. 276e. Duress as ground for relief. 276f ( 1 ) . Concealment of cause of action. In general. 276f (2). What constitutes concealment. 276f (3). Concealment by agent or third person. § 274. Statutory provisions as to fraud. In many of the States it is now expressly provided that, where the cause of action is fraudulently concealed, or where it arises from fraud, the statute shall not begin to run except from the time of its discovery, as in Maine, Massachusetts, Connecticut, Alabama, Georgia, Indiana, Illinois, Mississippi, Maryland, Michigan, and New Mexico. In New Mexico, however, the saving is restricted to 276a (1) 276a (2) 276a (3) 276b (1) 276b (2) 276b (3) 276b (4) 276b (5) 276b (6) 276b (7) 276b (8) 276b (9) 276b (10 Effect of Featjd. 1359 cases where the cause of action originated in or arises out of a trust. In Iowa, Colorado, Florida, Kentucky, North Carolina, South Carolina, Wisconsin, Kansas, Missouri, Minnesota, New York, Ohio, Nebraska, Nevada, California, Arizona, Dakota, Utah, Idaho, Montana, New Mexico, and Wyoming provision is made that in bills or actions for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the discovery of the fraud. In the first eleven States named, the questions growing out of the fraudulent concealment of the cause of action are set at rest by the statute. But in the last-named States and Territories, inasmuch as the statute makes express provision for a saving only in cases where a court of equity, or courts of law clothed with equitable powers, can give relief, and only in favor of bills and actions for such relief, it would seem to follow, under the well-settled rules for the construction of statutes, that the fraud- ulent concealment of the cause of action, or the non-discovery of the fraud for which an action would lie, affords no excuse for the delay of the plaintiff in an action at law in bringing his action, and that he can only obtain relief through the interposition of a court of equity, or the equitable powers of courts of law, in such cases as come within the scope of equitable relief. In "Vermont, Ehode Island, New Hampshire, Louisiana, New Jersey, Arkansas, Delaware, Pennsylvania, Texas, and Tennessee, no statutory provision upon this subject exists. In Virginia and West Virginia the statute provides that if a person shall, etc., " or by any other indirect means obstruct the prosecution of such right," etc. And it is held that, when the facts upon which the action is founded are exclusively within the knowledge of the defendant, and he fraudulently concealed them, he thereby ob- structs the prosecution of the right within the meaning of the statute.^ But in Missouri, under a somewhat similar statute, it was held that the statute did not apply to concealment or im- proper acts by other persons than the debtor.^ 1. Vanbibber v. Bierne, 6 W. Va. 2. Wells v. Halpin, 59 Mo. 92. 168. 1360 Statutes of Limitation. In. some of the other States in which no statutory provision exists upon this subject, it has been held that in the case of fraud, and the willful suppression of the truth, the statute does not begin to run at law until its discovery.^ But the statute ia put in motion as soon as the fraud is discovered, although its full extent or all the facts are not known.* In Massachusetts, before the present statutory exception existed, the fraudulent conceal- ment of a cause of action was held to be a good replication to a plea of the statute.^ In Maine, also, this rule was adopted.^ The doctrine of these cases was predicated upon a dictum of Lord Mansfield, in an English case;'' but this dictum seems never to have been followed in the English cases in actions at law,* nor 3. Pennock v. Freeman, 1 Watts (Pa.) 401; Jones v. Conaway, 4 Yeates (Pa.) 109; Rush v. Barr, 1 Watts (Pa.) 110; Morgan v. Tener, 83 Pa. 305; Wickersham v. Lee, 83 Pa. 416; Peck v. Bank of America, 16 R. I. 710; Thompkins v. Hollister, 60 Mich. 470; M'oyle v. Landers, 83 Cal. 579 ; Norris v. Haggin, 136 XJ. S. S86, 10 Sup. Ct. 943, 34 L. Ed. 434; Purdon v. Seligman, 78 Mich. 133, 43 N. W. 1045; Lawrence v. Norreys, L. R. 15 App. Cas. 210; Teall v. Sla- ven, 40 Fed. 774; Fisher v. Tuller, 133 Ind. 31, 33 N. E. 533; Fitta v. Beardsley, 8 N. Y. Sup. 567; Carrier V. Chicago, etc., R. R. Co., 79 Iowa 80, 44 N. W. 303, 6 L. R. A. 799. 4. Ferris v. Henderson, 13 Pa. 49; Bricker v. Lightner, 40 Pa. 199. In Miller v. Wood, 41 Hun 600, 5 N". Y. St. Rep. 314, aff'd 116 N. Y. 351, 33 N. E. 553, an action, brought to re- cover money as damages on the ground of fraud, was held barred by limitation if not brought within six years after the perpetration of the fraud. It is within the exception in the provision declaring that " in an action to procure a judgment, other than for a sum of money, on the ground of fraud," the cause of action " is not deemed to have accrued un- til the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud." 5. Massachusetts Turnpike Co. v. Field, 3 Mass. 201; Farnam v. Brooks, 26 Mass. (9 Pick.) 212; Wells v. Fish, 20 Mass. (3 Pick.) 74; Homer v. Fish, 18 Mass. (1 Pick.) 435. /See also, Douglas v. Elkins, 28 N. H. 36; Way v. Cutting, 30 N. H. 187; Campbell v. Vining, 23 111. 525; Hugh v. Jones, 35 Ga. 40. 6. Cole V. McGlathry, 9 Me. 131; McKown V. Whittemore, 31 Me. 448. 7. Bree v. Holbech, Doug. 654. Sea also. Brown v. Howard, 3 B. & B. 73. 8. Brooksbank v. Smith, 2 Y. & 0. 58 ; Imperial Gas Light Co. v. London Gas Co., 10 Exch. 39. See, in this country, Pyle v. Beckwith, 24 Ky. (1 J. J. Mar.) 445; Wilson v. Ivey, 32 Miss. 333; Callis v. Waddy, 2 Munf. (Va.) 511; Rice v. White, 4 Leigh (Va.) 474; Cox v. Cox. 6 Rich. (S. C.) Eq. 275; York v. Bright, 23 Tenn. (4 Humph.) 312; Hamilton T. Smith, 7 N. C. (3 Murph.) 115. Efpect of Fraud. 1361 do the American cases tefore cited seem to have been generally followed in this country. The courts of New York repudiated this doctrine at an early day, so far as it made fraud a replication to the statute in courts of law;' and such also was the case in Kentucky/* Mississippi,^ Virginia,^^ Tennessee,^^ Worth Caro- lina,^* and South Carolina.^^ In England, this question is de- cisively put at rest by a provision of the statute,^^ to the effect that the right of a party to bring a suit in equity for the recovery of 9. Troupe v. Smith, 20 Johns. (N. Y.) 33; Leonard v. Pitney, 5 Wend. (N. Y.) 30; Humbert v. Trinity Church, 24 id. 587; Allen v. Mille, 17 id. 202. In Bosley v. Nat. Machine Co., 123 N. Y. 550, 25 N. E. 990, it ■was held that the provision of the statute of limitation, declaring that " an action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case- which was cognizable by the Court of Chancery, is not deemed to have ac- crued until the discovery by the plaintiff, or the person under wliom he claims, of the facts constituting the fraud," applies to all cases form- erly cognizable by the Court of Chancery, whether the jurisdiction therein was exclusive or concurrent with that of courts of law; that it applies when any remedy or relief is sought for, aside from a mere money judgment, and which a court of law could not give, although as a mere part of the relief sought a money judgment is demanded; and that the fact that in such an action the plain- tiff asks for a money judgment for the amount paid him on subscribing, does not take it out of said provision, and the statute does not commence to run until after the discovery of the fraud. 86 10. Pyle V. Beckwith, 24 Ky. (1 J. J. Mar.) 445; Salve v. Twing, 63 Ky. (1 Duv.) 271. In Ellis v. Kelso, 57 Ky. (18 B. Mon.) 296, where a clerk made a fraudulent entry upon his employer's books, it was held that the statute ran from the date of entry. 11. In Wilson v. Ivey, 32 Miss. 233, the court held that, in case of fraud, the statute begins to run from the time of its commission, and not from the time the injury arising from it is established. 12. In Rice v. White, 4 Leigh (Va.) 474, an action for deceit was held to arise from the time of its commis- sion. Callis V. Waddy, 2 Munf. (Va.) 511. 13. York v. Bright, 23 Tenn. (4 Humph.) 812. See also, to sanTe effect. Smith v. Bishop, 9 Vt. 110; Fee V. Fee, 10 Ohio 469. 14. Hamilton v. Smith, 7 N. C. (3 Murph.) 115. 15. In Miles v. Berry, 1 Hill (S. C.) 296, where the maker of a note secretly and fraudulently obtained possession of it, and kept it until the statute had run upon it, it was held that the fraud of the maker did not save the statute. le. See Appendix, 3 & 4 Wm. IV., § 26. 1362 Stattjtes of Limitation. any land or rent of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have accrued at, and not before, the time when such fraud by rea- sonable diligence might have been discovered. It is unfortunate that in this country the legislature of all the States have not put this question at rest by some decisive provision instead of leav- ing it to judicial legislation, because, when the courts engraft upon these statutes exceptions which the statute does not make or warrant, its action is nothing more nor less than an assumption of legislative functions. The cause of action, except where the statute otherwise provides, in cases of fraud, arises from the time of its commission; and when courts of law hold to the contrary, it is by force of a judicial exception engrafted upon the statute, by the assumption of legislative and equitable powers, and is not warranted by any principle or rule of law, nor can it be supported by any known rule for the construction of statutes.-^'' § 275. Equitable rule in cases of concealed fraud. Courts of equity, independently of any statute, will relieve against fraud, if proceedings are seasonably brought after its dis- covery.-'^ Indeed, to use the language of Lord Cottenham, a court of equity will wrest property fraudulently acquired, not only from the perpetrator of the fraud, but " from his children and his chil- dren's children," or, as was said in another English case,-'' " from any persons to whom he may have parcelled out the fruits of his fraud." But the party seeking relief must state in his bill or complaint the non-discovery of the fraud until within the proper period.^* 17. See opinion of Speneer, J., in 14 Tenn. (6 Yerg.) 69; Carrey v. Al- Troupe v. Smith, supra. len, 34 Cal. 234; Croft v. Arthur, 3 18. Hovenden v. Lord Annesley, 3 Desaus. (S. C.) 223; Mattock v. Sch. & Lef. 639; South Sea Co. v. Todd, aS Ind. 128; Stocks v. Van Wymondsell, 3 P. Wms. 143; Shields Leonard, 8 Ga. 511; Sears v. Shafer, V. Anderson, 3 Leigh (Va.) 729; 6 N. Y. 268. Longworth v. Hunt, 11 Ohio St. 194; 19. Hueguenin v. Beasley, 14 Ves. Prescott V. Hubbell, 1 Hill (S. C.) 273. See also, Bridgman v. Green, 210; Donnelly v. Donnelly, 47 Ky. Wilmot's notes, 58. (8 B. Mon.) 113; Heywood v. Marsh, 20. South Sea Co. v. Wymondsell, Effect of Fra.tii>. 1363 The equity jurisdiction of the courts of the United States is the same as that of the High Court of Chancery in England, is not subject to limitation or restraint by State legislation, and is uniform throughout the different States of the TJnion.^^ And in those courts it is an established rule of equity that where relief is asked oh the ground of actual fraud, especially if the fraud has been concealed, that time will not run in favor of the defendant until the discovery of ■ the fraud, or until, with reasonable dili- gence, it might have been discovered.^^ The equitable jurisdic- tion of these courts over controversies between citizens of different States cannot be impaired by the laws of the State which pre- scribe the modes of redress in their courts, or which regulate the distribution of their judicial power.^* And while legal remedies are sometimes modified to suit the changes in the laws of the States and the practice of their courts, it is not so with equitable remedies.^* The equity practice of the Federal courts is the same supra; Sublette v. Tinney, 9 Cal. 423. Thus, in Lott v. De Graffenreid, 10 Rich. (S. C.) Eq. 346, it was held that a creditor's hill to set aside fraudulent conveyances of the debtor is barred by the lapse of four years from the execution of the deeds, un- less it be averred in the bill that the fraud was not discovered till within four years before the bill was filed. The statute runs against a suit in equity by creditors, to set aside a voluntary conveyance, by their debtor, from the time of notice to them of the conveyance, and the want of con- sideration. Eigleberger v. Kibler, 1 Hill (S. C.) Ch. 113; White v. Pous- sin, 1 Bailey (S. C.) Ch. 458. Where a broker falsely represented to a party for whom he undertook to in- vest money upon a good bond, well secured by mortgage, that the secur- ity wag ample, it was held that the right of action arose when it was discovered and the insecurity of the bond and mortgage ascertained, and that no suit in law or equity could be maintained after the time limited for such suits by the statute of limi- tations. Turnbull v. Gadsden, 2 Strobh. (S. C.) Eq. 14. Upon a bill brought to set aside a sheriff's deed on the ground that the purchase was fraudulent, the statute was held to run from the date of the purchase. Cox V. Cox, 6 Rich. (S. C.) Eq. 275. 21. Robinson v. Campbell, 16 U. S. (3 Wheat.) 212, 4 L. Ed. 372; Kirby V. Lake Shore, etc., R. Cto., 120 U. S. 130, 7 Sup. Ct. 430, 30 L. Ed. 569. 22. Header v. Norton, 78 U. S. (11 Wall.) 442, 20 L. Ed. 184; Kirby v. Lake Shore, etc., R. Co., supra. 23. Payne v. Hook, 74 U. S. (7 Wall.) 425, 430, 19 L. Ed. 260. 24. Harlan, J., in Kirby v. Lake Shore, etc., R. Co., supra. 1364; Statutes op Limitation. in every State, and they demonstrate the same system of equity rules and equity jurisdiction throughout the whole of the United States, without regard to State laws.^^ In California, it is held that the statute operates a saving in favor of actions for relief on the ground of constructive fraud.^® The species of fraud against which a court of equity will give relief, although an action there- for is barred at law, must be distinct in its characteristics.^'^ In England, under the statute of 3 and 4 Wm. IV., it has been held that a possession through a conveyance from a lunatic is not necessarily fraudulent,^^ but that the rule is otherwise where mala fides on the part of the purchaser is shown ;^^ but the mere fact that the grantee is aware of a flaw in his title is not such a case of fraud as takes the case out of the statute.^* In equity, where there is a fraudulent concealment of a cause of action, the statute commences running from the time it is discovered; but where the right depends on recorded instruments, there must be such misrepresentations as to prevent an examination of the records.'^ ISTor, generally, will equity interfere in a case where the party seeking relief might, by the exercise of proper diligence, have dis- covered the fraud.^^ Where an estate was intentionally omitted 25. Pjtyne v. Hook, supra; Green's tlie grantee, until the grantor recovers Adm'x V. Creighton, 64 U. S. (23 hia reason. Arrington v. McLemon, How.) 90, 16 L. Ed. 419; Rosenthal 33 Ark. 759. V. Walker, 111 U. S. 185, 4 Sup. Ct. 30. Langley v. Fisher, 9 Beav. 90; 382, 28 L. Ed. 395; United States v. Bellamy v. Sabine, 2 Phil. 425. Howland, 17 U. S. (4 Wheat.) 108, 31. Haynie v. Hall, 24 Tenn. (5 4 L. Ed. 526. Humph.) 220. 26. Boyd v. Blankman, 29 Cal. 19. 32. Thus, where a register-book 27. Dean v. Thwaite, 21 Beav. 621; containing a certificate of marriage, Petre v. Petre, 1 Drew. 397. which formed a principal link In the 28. Price v. Berrington, 3 Mac. & title of the plaintiff, had been frau- G. 486; Manby v. Bewickle, 3 K. & dtilently mutilated, it was held upon J. 342. demurrer that as tlie fraud could 29. Lewos v. Thomas, 3 Hare 26. have been discovered earlier with See also, Crowther v. Eowlandson, 27 proper diligence, the bill was too late. Cal. 376, where it was held tliat tlie In this case, the claim had, in fact, statute does not commence to run lain dormant for nearly one hundred against the right to have a deed set and fifty years. Chetham v. Hoare> aside on the ground of the grantor's L. E. 9 Eq. 571. insanity, and fraud on the part of Effect of Fraud. 1365 from an insolvent's schedule, it was considered an instance of concealed fraud.^^ The court will not enter into the question how far a fraud has been in effect concealed, owing to the exceptional dullness of the lawful claimant's intellect f* and where the question of fraud is raised, but there is a doubt of its existence, the court will not be inclined to presume it at a great distance of time, but will require strong prima facie evidence.^^ The reason why, if fraud has been concealed by one party, and until it has been dis- covered by the other, the statute should not operate as a bar, is^ that it ought not in conscience to run ; the conscience of the party being so affected that he ought not to be allowed to avail himself of the length of time.^" In many of the States, a certain period 33. Sturgis v. ]\Iorse, 24 Beav. 541. 34. Manby v. Bewicke, 3 K. & J. 343; Bridgman v. Gill, 24 Beav. 303. 35. Charter v. Trevelyan, 4 L. J. N. S. Ch. 339, 11 CI. & Fin. 714; Bonney v. Ridgard, cited in 17 Ves. 97. " Length of time," said Story, J., " necessar ly obscures all human evidence; and as it tlius removes from the parties all the immediate means to verify the nature of the ori- ginal transaction, it operates hy way of presumption in favor of innocerce and against the imputntion of fraud." Prevost v. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 311. In Marquis of Clanr'carde v. Henning, 30 Beav. 175, a bill to impeach a purchase by a so- licitor from his client was deemed too late after forty years. 36. Hovenden v. Annosley, supra. Under section 26 of this statute, it is not enough in England to prove concealed fraud, but the plaintiff must also show that it was intention- ally concealed, resulting in depriving him of the land sought to be re- covered, and that the fraud could not have been known or discovered by reasonable diligence during the statu- tory period before suit is brought. Lawrence v. Norreys, 15 A. C. 210; Moore v. Knight (1891), 1 Ch. 547; Willis V. Howe (1893), 3 Ch. 545; Betjemann v. Bttjemann (1895), 3 Ch. 474; Re Arbitration Between the Ashley and Tildesley Coal Cos., 80 L. T. 116. See Amy v. Watertown, 130 U. S. 330, 324, 9 Sup. Ct. 537, 33 L. Ed. 953. "Concealed fraud" un- der the above section 26, must be the fraud of the person who set up the statute, or of some one through whom he claims. In re McCallum (1901), 1 Ch. 143. The statute of limitations has no application even at law to a secret stealing of coal by a wilful, under- ground trespass, prior to its dis- covery. Bulli Coal Mining Co. v. Os- borne (1899), A. C. 351; Lewey v. H. C. Fricke Coke Co., 166 Pa. 536, 31 Atl. 361, 28 L. R. A. 283, 45 Am. St. Rep. 684, and n. See supra, f 178, n. (a). In some of the States, as, e. g., in Ohio, sucli underground trespasses are specially provided for in the lim'tation acts; the Ohio pro- vision (§ 4982) is that "in an ac- tion for trespass underground or in- 1366 Statutes of Limitation. after the discovery of the fraud is fixed within which an action for relief must be brought; but where no period is fixed a delay beyond the statutory period will be fatal.^'' jury to mines, the action shall not be deemed to have accrued until the wrong-doer is discovered." In the recent case of Dean v. Eoss, 178 Mass. 397, 60 N. E. 119, where the plaintiff had a verdict for $10,- 493, for the conversion of fifteen bonds of the par value of $500 each by the defendant, a spiritualist medium, the court said ; " We do not agree with the defendant's contention that if a defendant, who falsely represents that the spirit of a dead husband speaks through the defendant's lips, audi thereby ,iobtains the plaintiff's property, is successful in continuing the deception for six years next after the last cent of the plaintiff's prop- erty was obtained by the defendant, the plaintiff is without remedy when her eyes are opened; on the contrary, we are of opinion that, in such a ceise, there is concealment of the fraud, and the plaintiff can sue within six years after she discovers that she has been duped. Manu- facturers' Nat. Bank v. Perry, 144 Mass. 313, 11 N. E. 81. It does not lie in the mouth of a defendaht who has fraudulently succeeded in bring- ing a plaintiff under such a delusion to set up that the plaintiff had means of ascertaining the truth." Although the equity rule that, in cases of fraud, limitation begins to run not at the time of its perpetra- tion, but at the time of its discovery, cannot be maintained to the same ex- tent in actions at law, yet there ap- pears to be no good reason why equity and law should be so far apart as to forbid a court of law taking the same starting point, when active ad- ditional fraud has prevented such dis- covery. See Reynolds v. Hennessy, 17 E. I. 169, 178, 20 Atl. 307, 23 Atl. 639. In the case of official bonds, de- falcation and concealed fraud on the principal's part will deprive his surety as well as himself of the bene- fit of the statute of limitations, which, as to both, begins to run only when the fraud is discovered. Lieber man v. First Nat. Bank, 8 Del. Ch 519, 2 Pennewill, 416, 48 L. E. A, 514, 83 Am. St. Rep. 414, 45 Atl '901, 904. As to fraudulent conceal ment of the cause of action, see also, Shellenberger v. Ransom, 41 Neb, 631, 59 N. W. 935, 25 L. E. Ann. 564, and n. ; Peek v. Bank of America, 16 E, I. 710, 7 L. R. A. 826, and n., 19 Atl. 369; Manufacturers' Nat. Bank v. Perry, 144 Mass. 313, 11 N. E. 81; Abbott V. North Andover, 145 Mass. 484, 14 N. E. 754; Sanborn v. Gale, 162 Mass. 412, 38 N. E. 710^ 26 L. R. A. 864; Graham v. Stanton, 177 Mass. 321, 58 N. E. 1023; Lewey v. Fricke Coke Co., supra; Dorsey Ma- chine Co. V. McCaffrey, 139 Ind. 545, 38 N. E. 208, 47 Am. St. Rep. 290; Toole V. Johnson, 61 S. 0. 34, 39 S. E. 254; Cox V. Von Ahlefeldt, 105 La. 642, 30 So. 175; 34 Am. L. Reg. (N. S.) 462; infra, § 276, n. (a). 37. In Bailey v. Glover, 88 U. S. (21 Wall.) 342, 347, 22 L. Ed. 636, the court said: "To hold that by concealing fraud or by committing a fraud in a manner that concealed it- Effect of Frattd. 1367 In tte United States courts the equity jurisdiction of those courts is not subject either to limitation or restraint by State legislation, and is uniform throughout the different States of the Union.^ The statute of New York upon limitations does not, in view of these authorities, says Harlan, J., in a case previously cited, af- fect the power and duty of the court below — following the. set- tled rules of equity — to adjudge that time did not run in favor of defendants, charged with actual concealed fraud, until after such fraud was or should with due diligence have been dis- covered. Upon any other theory the equity jurisdiction of the courts of the United States could not be exercised according to self until such time as the party com- mitting the fraud could plead the stat- ute of limitations to protect it, is to make the law which was designed, to prevent fraud the means by which it is m?ide successful and secure.'' See Traer v. Clews, 115 U. S. 528, 1 Sup. Ct. 155, 29 L. Ed. 467. In Kirby v. Lake Shore, etc., R. Co., 120 U. S. 130, 7 Sup. Ct. 430, 30 L. Ed. 569, Harlan, J., says : " It is an estab- lished rule of equity, as administered in the courts of the United States, that where relief is asked on the ground of actual fraud, especially if such fraud has been concealed, time will not run in favor of the defend- ant until the discovery of the fraud, Or until with reasonable diligence it might have been discovered." See Header v. Norton, 78 U. S. (11 Wall.) 442, 20 L. Ed. 184 ; Prevost v. Gratz, 19 U. S. (6 Wheat.) 481, 5 L. Ed. 311; Michoud v. Girod, 45 U. S. (4 How.) 503, 11 L. Ed. 1076; Veazie v. Williams, 49 U. S. (8 How.) 149, 12 L. Ed. 1018; Brown v. Buena Vista, 95 U. S. 157, 24 L. Ed. 422; Rosen- thal v. Walker, 111 U. S. 185, 190, 4 Sup. Ct. 382, 28 L. Ed. 395. 38. Robinson v. Campbell, 16 U. S. (3 Wheat.) 212, 4 L. Ed. 372; Boyle v. Zacharie, 31 U. S. (6 Pet.) 648, 8 L. Ed. 532; Livingston v. Story, 34 U. S. (9 Pet.) 632, 656, 9 L. Ed. 255; Stearns v. Page, 48 U. S. (7 How.) 819, 12 L. Ed. 928 ; Ru'ssell v. South- ard, 53 U. S. (12 How.) 139, 147, 13 L. Ed. 927, 147; Neves v. Scott, 54 U.S. (13 How.) 268, 272, 14 L. Ed. 140; Barber v. Barber, 21 id. 572; Green's Adm'r v. Creighton, 64 U. S. (23 How.) 90, MS, 16 L. Ed. 419; Kirby V. Lake Shore, etc., R. Co., 120 U. S. 130, 7 Sup. Ct. 430, 30 L. Ed. 569. In Burke v. Smith, 83 U. S. (16 Wall.) 390, 401, 21 L. Ed. 361, where the local statute prescribed six years for the commencement of actions for fraud, the court said: "We think a court of equity will /not be moved to set aside a fraudulent transaction at the suit of one who has been quies- cent during a period longer than that fixed by the statute of limitations, af- ter he had knowledge of the fraud, or after he was put upon inquiry with the means of knowledge accessible to him." 1368 Statutes of Limitation. rules and principles applicable alike in every State. It is un- doubtedly true, as announced in adjudged cases, that courts of equity feel themselves bound, in cases of concurrent jurisdic- tion, by the statutes of limitation that govern courts of law in similar circumstances, and that sometimes they act upon the analogy of the like limitation at law. But these general rules must be taken subject to the qualification that the equity juris- diction of the courts of the United States cannot be impaired by the laws of the respective States in which they sit. It is an inflexible rule in those courts, when applying the general limita- tion prescribed in cases like this, to regard the cause of action as having accrued at the time the fraud was or should have been dis- covered, and thus withhold from the defendant the benefit, in the computation of time, of the period during which he concealed the fraud. It results that even if this be not an action " to pro- cure a judgment, other than for a sum of money, on the ground of fraud," within the meaning of the New York Code of Pro- cedure, the limitation of six years, being applied here, does not, as adjudged below, commence from the commission of the alleged frauds. Without inquiring whether the plaintiff was not guilty of such gross laches, in applying for relief, as deprived him of all right to the aid of equity, and giving him the benefit of the limitation of six years, to be computed from the discovery of the fraud, there seems to be even then no escape from the conclusion that the suit was not brought in time. Seven years, lacking only seven days, elapsed after the discovery of the frauds by the plaintiff's testator before suit was brought. § 276. Instances in which the statute will not run until fraud is discovered. In order to avail himself of the rule as to concealed fraud, to excuse delay in bringing an action, the bill or complaint should set forth the nature of the transaction fully, and also the acts of concealment, and the time of its discovery.^' 39. State v. Giles, 52 Ind. 356. If at the time of the discovery of a Effect of Feaud. 1369 The provision that if a person liable to an action shall conceal the fact from the knowledge of the person entitled thereto, the action may be commenced at any time within the period of limi- tation after the discovery of the cause of action, applies to causes of action for fraud, as well as to other causes of action ; but the concealment contemplated by the statute is something more than mere silence; it must be of an affirmative character, and must be alleged and proved so as to bring the case clearly within the meaning of the statute.*" Something more than mere silence is necessary, unless the relationship of the parties is such that the fraud, the party injured has a legal capacity to act and to contract, his right of action accrues and the stat- ute of limitations begins to run against it, irrespective of his in- telligence, or of his freedom from un- due influence, or his ability to resist it. Piper v. Hoard, 107 N. Y. 67, 13 N. E. 632, 1 Am. St. Rep. 785. 40. Wynne v. Cornel; son, 52 Ind. 312; Township of Boomer v. French; 40 Iowa, 601; Stanley v. Stanton, 36 Ind. 445. A request by one of two indorsers of a note that suit be de- layed against liim, or that the other indorser be sued first, is no case for the interference of a court of equity. Bank of Tenn. v. Hill, 29 Tenn. (10 Humph.) 176. So where, in an ac- count settled between the parties, the plaintiff has erroneously credited the defendants with an amount which, for that reason, he would be entitled to recover. Brown v. Edes, 37 Me. 492. Nor is a denial on the part of the defendant that he was part own- er in a vessel, made when a portion of an account for repairs was present- ed to him, such a fraudulent conceal- ment as to prevent him from availing himself of the plea of the statute. Rense v. Southard, 39 Me. 404. But where the delay of the plaintiff to seek relief was occasioned, in part at least, by the promise of the defendant to rectify certain errors, the existence of such errors came to the knowledge of the plaintiff gradually, and the cir- cumstances were such that the defend- ant could suffer nothing by the delay, it was held that the plaintiff was not precluded from relief on the ground that he had not sought it within rea- sonable time. Callender v. Colegrove, 17 Conn. 1. And where it is agreed between the assignor and assignee of a promissory note, at the time of the assignment, that the assignee need not demand payment of the maker before a certain time, it is not laches in the assignee not to commence suit on the note before that time. Nance v. Dunlavy, 7 Blackf. (Ind.) 172. When the limitation is by agreement, as in an insurance policy, it is gen- erally held that conduct on the part of the insurers which leads the in- sured to delay, is a waiver of the lim- itation. Black V. Winnishiek Ins. Co., 31 Wis. 74; FuUam v. N. Y. Un- ion Ins. Co., 73 Mass. (7 Gray) 61; McKown V. Whitman, 31 Me. 448; Buckner v. Calcote, 28 Miss. 433. lavo Statutes of Limitation. party is bound to speak ;**• it is necessary that some effort to con- ceal the fraud should have been made, either by preventing an investigation, or by misleading the party making inquiry, or that misrepresentations were made by the party which were calculated to mislead him. In other words, some affirmative acts to conceal the fraud must be shown, *^ and, according to the case last cited, the party seeking to avoid the statute must have exercised proper diligence.^^ Mere silence or passiveness, there being no fidu- 41. Miller v. Powers, 119 lad. 79, 21 N. E. 455, 4 L. R. A. 483; Jackson V. Buchanan, 69 Ind. 390; Wynne v. Cornelison, 53 Ind. 313. 42. Stone v. Brown, 116 Ind. 78, 18 N. E. 393. 43. See Ehoton v. Mendenhall, 17 Or. 199, 20 Pac. 49. See St. Paul, etc., Ey. Co. v. Sage, 49 Fed. 315 ; Clark v. Van Loon, 108 Iowa, 350, 79 N. W. 88, 75 Am. St. Rep. 319; Lady Washington Consol. Co. V. Wood, 113 Cal. 482, 45 Pac. 809; Hart v. Church, 136 Cal. 471, 59 Pac. 296, 77 Am. St. Rep. 195; Thomas v. Rauer, 63 Kan. 568, 64 Pac. 80; Stearns v. Hochbrunn, 24 Wash. 206, 64 Pac. 165. When fraud is not proved, the statute runs from the time when the wrongful act was committed. Trotter v. Maclean, 13 Ch. D. 574; In re Crosley, 35 Ch. D. 266; Moore v. Knight, [1891] 1 Ch. S47; Wilkinson v. Verity, L. K. 6 C. P. 206; Miller v. Dell, [1891] 1 Q. B. 468; Carter v. Eighth Ward Bank, 33 Misc. Rep. 128, 67 N. Y. Supp. 30O. It is often material to distinguish be- tween actual and constructive fraud, especially in relation to trusts, since, for instance, the statute of limita- tions applies to constructive trusts, but not to express trusts while con- tinuing. See Patrick v. Sampson, 24 Q. B. D. 138; Speidel v. Henrici, 1^0 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718; Alsop V. Riker, 155 U. S. 448, 460, 15 Sup. Ct. 162, 39 L. Ed. 218; Whitney v. Pox, 166 U. S. 637, 17 Sup. Ct. 713, 41 L. Ed. 1145; McMon- agle V. McGlinn, 85 Fed. 88; Cboper V. Hill, 94 id. 582 ; Mount v. Mount, 35 Misc. Rep. 63, 71 N. Y. S. 19«, rev'd 68 App. Div. 144, 74 N. Y. Supp. 148 ; Seitz v. Seitz, 59 App. Div. 150, 69 N. Y. S. 170; Currier v. Studley, 159 Mass. 17, 33 N. E. 709; Fuller v. Cushman, 17« Mass. 286, 49 N. E. 63; St. Paul's Church v. Atty.-G«n., 164 Mass. 188, 199, 41 N. E. 231, supra, § 58, and n. Within this rule a solicitor whom trustees, employing him for the trust, allow to collect and retain the trust funds, is an express trustee, though he is guilty of concur- ring in the trustee's breaci of trust in so receiving the money. Soar v. Ashwell, [1893] 3 Q. B. 390. See In re Lands Allotment 'Co., [1894] 1 Oh. 616; Heynes v. Dixon, [1900] 2 Ch. 561; Municipal Freehold Land Co. v. Pollington, 63 L. T. 238; In re Bow- den, 45 Ch. D. 444. But a mortgagee, on receiving the cash proceeds of the sale of the mortgaged property is not the trustee of an express trust so aa to suspend the statute. Mills v. Mills, 115 N. Y. 80, 31 N. E. 714. While equity will regard with suspicion an attempt to establish a constructire re- Effect of Feaud. 1371 ciary relation or act of the party calculated to deceive or lull inquiry, is not a fraudulent concealment within the meaning of the statute.** The rule that the " concealment " which prevents suiting trust after sucli lapse of time as thirty years, yet wlieii the evidence, though oral, is clear, it may establish such a trust, though denied by the defendant's answer. Mclntire v. Pry- or, 173 U. S. 38, 19 Sup. Gt. 352, 43 L. Ed. 606; Condit v. Maxwell, 143 Mo. 266, 44 S. W. 467; Cooksey v. Bryan, a App. D. C. 557; Robb v. Day, 90 Fed. 337, 33 C. C. A. 84; Lemoine v. Dunklin County, 51 Fed. 487, S C. 'C. A. 343. 44. Tillison v. Ewing, 91 Ala. 467, 8 So. 404, holding that if due in- quiry for a certificate of entry filed in the proper governmental department to obtain a patent would have led to information of its issuance, which is the only fact claimed to have been discovered, the concealment or de- struction of the patent will not con- stitute such fraud which, imder the statute, prevents the accrual of a cause of action, until its discovery. In Wisconsin actual notice of the facts is held necessary, and constructive notice will not put the statute in mo- tion, under a statute providing that a cause of action for relief on the ground of fraud does not accrue until the discovery of the facts constituting the fraud. Fox v. Zimmerman, 77 Wis. 414, 46 N. W. 533. In New York an action to rescind a purchase of stock in a corporation, induced by fraud, does not accrue until the dis- covery of the fraud by the plaintiff or the person under whom he claims. Bosley v. National Mach. Co., 123 N. Y. 550, 35 N. E. 990. The statute does not run as to a claim' against a firm of solicitors for money sent thesm to invest, but which is embezzled by their clerk, until discovery of that fact, where they represent that it has been invested and continue to pay in- terest on it. This rule is unaffected by the English Trustee Act, 1888. Moore v. Knight, [1891] 1 Ch. 547. In Louisiana it is held that prescrip- tion against an action to annul a judgment for fraud only runs from the date of discovery of the fraud. Lazarus v. MoGuirk, 42 La. Ann. 194. The statute does not begin to run against the claim of a shipper to re- cover back excessive payments of freight charges so long as he has no knowledge of his rights, owing to the fraudulent concealment of the cause of action by the carrier. Cook v. Chi- cago, R. I. & P. R. Co., 81 Iowa 551, 46 N. ■ W. 1080, 9 L. R. A. 164, 25 Am. St. Rep. 512. The statute does not apply to an action to can- cel a sheriff's deed of land sold under a judgment which had been purchased and held by one who, act- ing under a trust, had collected funds for its satisfaction to such purchaser, and to. remove the incumbrance of the judgment from the property. Wil- son V. Brookshire, 126 Ind. 497, 25 N. E. 131, 9 L. R. A. 792. In Ken- tucky it is held that the statute runs against an a/ction hy a creditor to subject his debtor's lands to the pay- ment of his debt, although the cred- itor lived in a distant county and did not know of a conveyance by his debtor and a record of the deed in the county where the debtor lived. Cock- 1372 Statutes of Limitation. the running of the statute must be of a positive and affirmative character was applied in Indiana, where one sued for criminal conversation had persuaded the plaintiff's wife to deny the same for two years; and the court held that such denial or procure- ment thereof was no " concealment."*^ Living with a woman without marriage to her, and publicly acknowledging her as the wife of defendant, does not constitute a case of concealment of the crime of fornication, such as will take the offense out of the statute of limitations.*^ In Iowa, the provision of the code as to fraud is held to apply only in cases of equitable cognization; and is a case where B. conveyed to his son, who died shortly after- wards, leaving an illegitimate son whom he had recognized, and after the death of his son, B. again conveyed the property to another, in fraud of the rights of the grandson, who had no knowledge of the existence of the estate of his father until twenty years afterwards, whereupon he immediately commenced his ac- tion, it was held that it was barred by the statute.*'' In Mary- land, it is held that where one practices fraud, to the injury of rill's Ex'r v. Ccxikrill, 13 Ky. L. Rep. to reform a written instrument on the 10, 15 S. W. 1119. The statute only ground of mistake, upon the execu- begins to run against an action to tion of the instrument, and not charge a trustee for the trust prop- upon the discovery of the mis- erty which has been fraudulently pur- take. Bryant v. Swetland, 48 Oliio chased at a judicial sale for his bene- St. 194, 27 N. E. 100. But in Ne- fit, from the discovery, by the cestui braska it is held that the statute be- que trust, of the facts constituting gins to run against a suit to correct fraud. Lewis v. Welch, 47 Minn. 193, a mistake in the drafting or record- 48 N. W. 608, 49 N. W. 665. A cred- ing of a deed, where the correction itor, by admitting that he was in- involves no change of actual posses- formed by his debtor that he conduct- sion or disturbance of investments, ed his business in his wife's name to upon the discovery of the mistake, or prevent his creditors from hampering of facts placing one on inquiry. Ains- him, aclcnowledges that he then had field v. More, 30 Neb. 385, 46 N. W. notice of the fraud, so as to set the 828, 1 Neb. L. J. 202. statute running from that date 45. Jackson v. Buchanan, 59 Ind. agiinst an action by him against the 390. wife. Osborne v. Wilkes, 108 N. €. 46. Robinson v. State, 57 Ind. 113. •651, 13 S. E. 285. In Ohio the stat- 47. Brown v. Brown, 44 Iowa 349. ute begins to run against an action Efpect of Feaxjd. 1373 another, the subsequent concealment of it from the injured party is in itself a fraud ; and if he is thereby kept in ignorance of his cause of action, he is kept in ignorance by " the fraud of the adverse party," within the meaning of the statute regarding the right of action " to have first accrued at the time at which such fraud shall, or with usual and ordinary diligence might, have been known or discovered.'* ^^ In Illinois, it is held that there is no rule which requires a trustee or cestui to execute and record any instrument to counteract the record of a forged release of the trust deed. ISTor is the owner of land limited to any particular period for commencing proceedings, at law or in equity, against a forger of title to his land, to vindicate his good title against the fraudulent claim of the forger, or one claiming under him. He may bide his time, and trust to the strength of his title.^^ In Minnesota, it is held that, under the statute, time commenced to run for a fraudulent conversion from the time of its discovery.^'* In Louisiana, an action by a judgment creditor, to annul a mort- gage on the ground that it was fraudulent, was held to be barred by the statute in one year.^^ In West Virginia, the statute is held to run against a suit to set aside a conveyance as fraudulent against creditors, founded on the charge that its provisions are such as to render it voidable, as matter of law, from the time when the deed was made ; but that it does not run against a suit founded on the charge of a fraudulent intent, in fact, except from the time of discovering the fraud.^^ In Iowa, an action by a ten- 48. Wear v. Skinner, 46 Md. 347. trustees, and that limitation did not See also Findley v. 'Stewart, 46 Iowa run, in such case, against the right 655. of the heirs, until tlieir discovery of 49. Chandler v. White, 84 111. 435. the fraud. Hardy v. Harbin, 4 Saw- Where parties secured the legal title yer (U. S.) 536. See Bescher v. Pau- of a Mexican grant, by presenting to lus, 58 Ind. 271. the land commissioners a worthless 50. Commissioners v. ■ Smith, 33 document, as a transfer of the gran- Minn. 97. tee's interest, whereby a fraud was 61. Brewer v. Kelly, 34 La. Ann. committed upon the heirs of the gran- 246 ; Powell v. O'Neill, id. 523. tee, it was held that the patentees 52. Hunter v. Hunter, 10 W. Va. would, in equity, be converted into 133. 13i74 Statutes or Limitation. ant in common to recover possession of the common property whicli is fraudulently held by Ms co-tenant, and to which the latter has acquired a tax deed, is held not to be barred at the expiration of five years from the recording of the deed.^* In Arkansas, under the code of practice, when courts can exercise equitable and legal jurisdiction, if the administrator pleads the statute of limitations in a suit founded on a cause of action accru- ing in the lifetime of his intestate, fraudulent conversion and con- cealment by the intestate may be given in evidence in answer to such plea.^* It is an invariable rule, says Miller, J., that the fraud must have been one which was concealed from the plaintiff by the defendant, or which was of such a character as necessarily implied conceal- ment. And the acts which are claimed to constitute the fraud are evidenced by public record or by judicial proceedings, and it cannot be claimed that there was such a concealment as would prevent the operation of the statute.^^ The omission to disclose to the owner a trespass upon land, if there is no fiduciary relation between the parties, and the owner has the means of discovering the facts, and nothing has been done to prevent him from discovering them, is not a fraudulent concealment, within the statute.^ But where an agent or officer of a corporation falsely represents that he has paid a debt of his principal or of the corporation, and thereby induces the payment of the amount to him, the cause of action does not arise until the fraud is discovered.^^ The fraudulent concealment must have 53. Austin v. Barrett, 44 Iowa, Skinner, 46 Md. aSY; Wilson v. Ivy, 488 ; Muir v. Bozarth, id.* 499. 32 Miss. 233. 54. Meyer v. Quarteman, 28 Ark. 58. Nudd v. Hamblin, 90 Mass. (8 45. Allen) 130. 55. Norris v. Haggen, 136 U. S. 57. Atlantic Bank v. Harris, 118 386, 10 Sup. Ct. 943, 34 L. Ed. 424. Mass. 147. But the procuring of the See Way v. Cutting, 20 N. H. 187; settlement and discharge of an exist- Bricker v. Lightner, 40 Pa. 199; Liv- ing cause of action by fraudulent ermore v. Johnson, 27 Miss. 284; Vi- means is not such fraudulent coneeal- gus V. O'Bannon, 118 111. 334, 346, ment within the statute. Penobscot 8 N. E. 778 ; Atlantic National Bank E. R. Co. v. Mayo, 65 Me. 566: V. Harris, 118 Mass. 147; Wear v. Effect of Fraud. 1375 been that of the party sought to he charged, and a mere allega- tion or proof that it was the act of his agent will not he sufficient, unless he is in some way shown to have been instrumental in, or cognizant of, the fraud ;^* and in all cases the plaintiff takes the burden of establishing the fraud, so as to briag his case within the statute. ^^ So, too, it must relate to the cause of action, and does not apply to the concealment of property, so that it cannot be reached upon execution.^" Except where made so by statute, mere ignorance of one's rights does not prevent the opera- tion of the statute.®^ 58. Stevenson v. Robinson, 39 Mich. 160. 59. Evans v. Montgomery, 50 Iowa 325. Proof of a mere non-user of cor- porate powers is not a concealment of the corporation such as to suspend the running of the statute. Fort Scott V. Sehulenberg, 23 Kan. 648. So where a guardian refused to settle with his ward, and put him off for several years, saying that he had the matter fixed, it was held not such fraud as would take the case out of the stat- ute. Jones V. Strickland, 61 Ga. 3'56. In an action by a judgment plaintiff induced by one in collusion with the debtor to sell the judgment for half its amount, it was held that the six years' limitation of the Indiana stat- ute to " an action for relief against frauds " commenced to run when the fraud was perpetrated. Wood v. Car- penter, 101 U. S. 135, 25 L. Ed. 807. See also Mercantile Nat. Bank v. Car- penter, 101 U. S. 567, 25 L. Ed. 815; Sweet V. Hentig, 24 Kan. 497. Prom fraudulent concealment of a cause of action a new promise will not be inferred, nor does such conceal- ment estop the defendant from set- ting up at law the bar of the statute; and even when such concealment is not an answer to the statute in an ac- tion at law, relief therefrom may still be gained in equity. Freeholders of Somerset v. Veghte, 44 N. J. Law 509; Sanborn v. Gale, 162 Mass. 412, 38 N. E. 710, 26 L. R. A. 864; Coffing ^v. Dodge, 169 Mass. 459, 48 N. E. 840. And there is no reason why a court of equity may not, by injunction, dis- arm a defendant from using the stat- ute fraudulently in an action at law. HoUoway v. Appelget, 55 N. J. Eq. 583, 40 Atl. 27, 62 Am. St. Rep. 827. See Parsons v. Hartman, 25 Oregon 547, 42 Am. St. Rep. 803, 37 Pac. 61, 30 L. R. A. 98, 142, n. 60. Humphreys v. Mattoon, 43 Iowa 556. In Rice v. Burt, 58 Mass. (4 Oush.) 208, the concealment of property by an insolvent from his as- signee, and his concealment from a creditor of fraudulent acts, which if known would have enabled the cred- itor to avoid the debtor's discharge, were held not a fraudulent conceal- ment of the plaintiff's cause of ac- tion. In Fleming v. Culbert, 46 Pa. 498, the investment of money in bonds, etc., by an attorney in fact, in- stead of remitting it to his client, was held not a fraudulent concealment suspending the statute. See also Mun- son V. Hallowell, 26 Tex. 475. 61. Foster v. Rison, 17 Gratt. (Va.) 1376 Statutes of Limitation. § 276a(l). Fraud as ground of relief — In general. The statute does not begin to run in favor of one who falsely certifies to a purchaser of corporate bonds that they were secured by a mortgage, and who afterwards executed another mortgage on behalf of the company, and received part of the proceeds, until the bonds become due.^^ That a freight agent has told a shipper that he will be charged the same rates as others, and will be notified of any additional concession made to others, is not fraudulent con- duct such as will prevent the running of limitations against the shipper's action for subsequent unlawful discrimination in allow- ing rebates to other shippers.^^ Limitations run against a cause of action arising out of fraud, unless the cause of action has been fraudulently concealed.^* An action to recover money paid on 331; Campbell v. Long, 20 Iowa 383; Bassand v. White, 9 Rich. (S. C.) Eq. 483; Bank v. Waterman, S'B Conn. 334; Abell V. Harris, 11 G. & J. (Md.) 367; Martin v. Banlc, 31 Ala. 115; Davis v. Gotten, 55 N. C. (3 Jones Eq.) 430. 62. Miles v. Roberts, 76 Fed. 919 (C. C, N. Y.). Repetition of the fraudulent rep- resentations by which a contract to marry was procured does not give a new cause of action, so as to interrupt the running of limitations against an action for the fraud. Reilly v. Sa- bater, 43 N. Y. Supp. 383, 26 Civ. Proc. R. 34. 63. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 241 Pa. 536, 88 Atl. 743. That the coal freight agent of a railroad company promised a coal company that in the future it would be given as favorable rates as were given to any other shipper, which promise was not Icept, but lower rates were afterward given to other com- peting companies, did not consti- tute fraud which would prevent the running of limitations against an action to recover damages for the unlawful discrimination. Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 181 Fed. 403, dismissed for want of jurisdiction, 183 Fed. 908 (C. C, Pa.). See Franklin v. Franklin, 33 Pa. Super. Ct. 463, wherein an alleged fraud was held insufficient to over- come the plea of the statute of limi- tations. 64. Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94. Acts between the purchaser and strangers to the contract of sale will not constitute such fraud as will pre- vent limitations from running agkinst the vendor's cause of action arising out of a mutual mistalce as to the amount of purchase money, in a set- tlement between vendor and pur- chaser, even though they may have tended to conceal the cause of action. Craig V. Gauley Coal Land Co., 73 W. Va. 624, 80 S. E. 945. The fact that money is obtained by fraud will not prevent the running of the stat- ute of limitations, under Code 1906, Effect of Featjd. 1377 insurance policies within the statutory period, on the ground that the heneficiaries in the policies made false representations when the policies were issued, more than ten years prior to the com- mencement of the action, is not barre'd by the ten-year statute of limitations, since the statute runs from the date the payment was made, which marked the consummation of the fraud.^^ The claim of a vendee against the vendor of real estate for damages for fraud- ulent representations as to title accrues immediately on the per- petration of the fraud, and is not postponed to such time as he sustains actual loss.*® The statute of limitations begins to run in favor of the third person to whom it is claimed partnership funds have been fraudulently diverted immediately upon such fraudulent diversion, if the injured, partners have knowledge of it.*'' Kight of action by a vendor against a purchaser for falsely stating to vendor that no broker employed by vendor was concerned in the transaction is founded on the fact that because of the false represen- tations vendor was persuaded to sell for less than he would have otherwise received, and right of action became complete as soon as the vendor conveyed to the purchaser for such price.** The Mis- souri statute, providing that, if a party by improper conduct pre- vents the commencement of an action, it may be begun within the period of limitation after the obstacle is removed, is not applicable § 3511, against an action to recover an action for fraud lie after 10 years the same from the consummation of from' the making of the contract or the transaction, unless investigation perpetration of the fraud. Lyms v. is prevented by affirmative acts of Henderson, 6 Ky. Law Kep. (abstract) the wrongdoer, and mere silence is 319. not sufficient. Boyd v. Beebe, 64 W. 66. Burling v. Allvord's Estate, 77 Va. 216, 61 S. E. 304. Where a cause Neb. 861, 110 N. W. 683. See, as of action arises out of a fraud, the to action against a county clerk for statute runs from its perpetration. excess fees collected: State v. Boyd, This does not apply to fraudulent 49 Neb. 303, 68 N. H. 510. transfers. Thompson v. Whataker 67. Stone v. Baldwin, 127 111. App. Iron Co., 41 W. Va. 574, 23 -S. E. 796. 563, judg. aflf'd 226 111. 338, SO N. E. 65. Johnson v. Equitable Life As- 890. sur. Society of United States, 137 Ky. 68. Brackett v. Perry, 201 437, 125 S. W. 10^4. In no case does 502, 87 N. E. 903. 87 1378 Statutes of Limitation. where a surety on a note prior to judgment against the maker and sureties made himself insolvent by a fraudulent transfer of his land; such conduct not preventing suit against him for contribu- tion by a co-surety, but only going to defeat an execution on a judgment against him.^' A claim of fraud in a conveyance is barred both as stale and by limitations v^here over forty years has elapsed since the facts claimed to constitute the fraud arose.™ Constructive fraud will not prevent the running of limitations to a claim growing out of a payment by mistake in excess of that to which the creditor was entitled, where the debtor was guilty of laches in not sooner discovering the mistake under which the parties acted.''^ Fraud sufficient to suspend limitations, under the Maryland statute, may be either an actual concealment of facts, or of such a nature as to conceal itself, whereby plaintiff remains in ignorance without any lack of diligence on his part.''^ Under the Wisconsin statute, ignorance of the existence of a cause of action, though produced by fraud, does not delay limitations, unless, prior to the code of limitations, the cause of action would be for relief on the ground of fraud.''^ 69. Certified from the Court of Ap- 411, 89 Atl. 719, under Code Pub. Civ. peals. See 117 Mo. App. 385, 93 S. Laws, art. 57, § 14. W. 888. Burrus v. Cook, 315 Mo. 496, 73. Ott v. Hood, 153 Wis. 97, 139 114 S. W. 1065, under Rev. St 1899, N. W. 762, under St. 1911, § 4233, § 4290 (Ann. St. 1906, p. 2359). The subd. 7. "improper act" in Reiv. St. 1909, § See, as to the application of stat- 1905, must be one in the nature of a utes of limitation in othei jurisdio- fraud that will prevent the commence- tions, where fraud is the ground for ment of an action, and a, judgment relief: debtor, who merely concealed his name La. — Olivier, Voorhiea & Lowrey v. from the assignee of the judgment. Majors, 133 La. 764, 63 So. 333, un- did not commit an improper act which der Civ. Code, art. 1994. prevented suit. Davis v. Carp, 358 Tex. — Vernor v. D. Sullivan & Co. Mo. 686, 167 S. W. 1043. (Civ. App.), 126 S. W. 641; Jack- 70. Adams v. Hopkins, 144 Cal. 19, son v. Martin, 37 Tex. Civ. App. 593, 77 Pac. 712. 84 S. W. 603; O'Neal v. Clymer (Civ. 71. Maxwell v. Walsh, 117 Ga. App.), 61 S. W. 545. 467, 43 S. E. 704. Fo.— Liskey v. Paul, 100 Va. 764, 72. Schuck V. Bramble, 132 Md. 42 S. E. 875; Stokes v. Oliver, 76 Va 73. Effect of Feaud. 1379 § 276a(2). Fraud in obtaining possession of or title to property. Where land is held in fee, the statute of limitations begins to run against an action for relief from fraud practiced in procuring a conveyance thereof from the delivery of the deed.'* Limitations, as to an action to subject to a judgment against an insolvent prop- erty accumulated by him in conducting a business under his wife's apparent proprietorship, began to run from the time when the business was first established, when its alleged fraudulent charac- ter could have been tested by a judicial inquiry.''^ The Kentucky ten-year statute of limitations applicable to actions for relief from fraud or mistake does not operate to perfect the title of the gran- tee in a voluntary conveyance who has never been in possession, so- as to enable him to recover the land conveyed from a subsequent purchaser for value without actual notice of his claim, as the stat- ute, as affects property, does not apply in favor of one not in pos- session.'" Where the vendor of goods accepts security under false representations as to its value, such fraud will not prevent the operation of the statute of limitations against the debt.'' The statute commences to run against an action for money obtained by fraud from the time the transaction is completed by the receipt 74 Chambers v. Chambers, 139 Ind. Under Ky. St. § 2519, where a 111, 38 N. E. 334. debtor made a voluntary transfer in 75. Shircliffe v. Casebeer, 122 Iowa trust, and subsequently purchased 618, 98 N. W. 486. As to an action land with the trust funds in the name to recover from a guardian the pro- of the beneficiary, suit to subject the ceeds of a sale of the ward's prop- land to the payment of a judgment erty, see Blakeney v. Wyland, 115 on the debt, more than 10 years after Iowa 607, 89 N. W. 16. the transfer in trust, could not be 76. Sewell v. Nelson, 113 Ky. 171, maintained. Graham's Adm'r v. Eng- 23 Ky. Law Rep. 2438, 67 S. W. 985; lish, 160 Ky. 375, 169 S. W. 836. Potter V. Bengp, 24 Ky. Law Rep. 24, 77. Rouss v. Ditmore, 122 N. C. 67 S. W. 1005. See also, as to ac- 775, 30 S. E. 335. tions for fraud in obtaining posses- As to an action by the sureties on sion of or title to property. Row v. a bond to set aside a deed as a fraud Johnston, 25 Ky. Law Rep. 1799, 78 on their rights of indemnity, see: S. W. 906; Lyms v. Henderson, 6 Ky. Graeber v. Sides, 151 N. C. 596, 66 Law Rep. (abstract) 219. S. E. 600. 1380 Statutes of Limitation. of the money, where nothing is thereafter done by the person re- ceiving it to prevent inquiry and discovery of the fraud.'* § 276a (3). Cancellation of instrument. The recording of a deed starts limitations running, as to the grantors, as to any fraud in procuring the deed.™ In Kentucky, an action to set aside a deed for fraud or mistake cannot be maintained after the expiration of ten years from the time of its execution.*" Under 'New York Code, § 91, a suit to set aside a deed obtained by fraud was required to be brought within six years from the time of the discovery of the fraud. Where an action was brought accordingly, and defendant, by the exercise of undue influence, induced plaintiff to discontinue, and sixteen years af- terwards, when the undue influence came to an end, another suit was brought, it was held barred by the statute, and that equity could not affop'd a remedy.*^ Where a grantee went into possession and dealt with the property as his own, the right of the grantors to sue to set aside the deed for fraud was barred by limitations, where the grantors took no action during their lifetime, though they lived more than five years, in the absence of anything to show that they did not know of the fraud at the execution of the deed.*^ 78. Smith v. Blachley, 198 Pa. 173, We6.— Aldrich v. Steen, 71 Neb. 33, 47 Atl. 985, 53 L. E. A. 849. 98 N. W. 445, MO N". W. 311. As to the application of limitation N. J. — Markley v. Camden Safe De- laws in other jurisdictions to actions posit & Trust Co. (N. J. Ch.), 69 Atl. ■wherein relief is sought from fraud 1100. in obtaining possession of or title to Va. — Williams v. Blakey, 76 Va. property, see: S54. U. 8. — Thayer v. Kansas Loan & 79. McDonald v. Bayard Sav. Bank, Trust Co., 100 Fed. 901, 41 C. C. A. 133 Iowa 413, 98 N. W. 1035. 106 (C. C. A., Kan.). 80. Combs v. Noble, 2a Ky. Law AWi;.— Salinger v. Black, 68 Ark. Rep. 736, 58 S. W. 707; Buckler's 449, 60 S. W. 339. Adm'x v. iRogers, 33 Ky. Law Eep. 1, Gal. — Matteson v. Wagoner, 147 53 S. W. :5'29; 31 Ky. Law Eep. 1365, Cal. 739, «3 Pac. 436. 54 iS. W. 848. Colo. — ^Arnett v. Berg, 18 Colo. 81. Piper v. Hoard, 65 How. Prac. App. 341, 71 Pac. 686. (N. Y.) 338, 107 N. Y. 67, 13 N. E. Miss. — Thornton v. City of Natchz, 632, 1 Am. St. Rep. 785. 88 Miss. 1, 41 So. 498! 82. Ryman v. Petruka (Tex. Civ. App.), 166 S. W. 711. Efpect of Fraud. 1381 § 276b (1). Discovery of fraud — In general. Limitations do not commence to run against an action for fraud till the discovery of the fraud, or of facts sufficient to put an ordinarily intelligent person on inquiry.*^ Where plaintiff sued defendants for a conspiracy to injure it in its business, in violation of the Sherman Anti-Trust Act, limitations did not hegin to run until plaintiff discovered the existence of the conspiracy and its right to sue.** Under the express provisions of the California statute, the period of limitations in actions for relief on the ground of fraud does not begiu to run imtil the fraud is discovered.*^ Un- der the Kansas statute, where the evidence, in an action by trustees for relief on account of fraud, fails to show that such fraud was known to one of the plaintiffs, or their predecessors, more than two years prior to the commencement of the action, plaintiffs cannot recover.*^ The Maryland statute does not refer to a fraud inde- 83. Ind. — ^Dorsey Machine Oo. v. McOaflFrey, 139 Ind. 645, 38 N. E. 208, 47 Am. St. Hep. 290. And see Day T. Dages, 17 Ind. App. 228, 46 N. E. 589. Mo. — Thomas v. Mathews, 51 Mo. 107. 'Neb. — Raymond v. Schriever, 63 Neb. 719, 89 N. W. 308; Cole v. Boyd, 68 Neb. 146, 93 N. W. 1003; Forsyth T. Easterday, 63 Neb. 887, 89 N. W. 407; Weokerly v. Taylor, 74 Neb. 84, 103 N. W. 1065, or of such facts as are indicative of fraud, and which, if followed up, would lead to the dis.- covery. Pa.— Smith v. Blachley, 188 Pa. 550, 41 Atl. 619, 43 Wkly. Notes Cas. 201, 68 Am. St. Rep. 887; Kalin v. Wehrle, 36 Pa. Super. Ct. 305, where money was fraudulently taken from the possession of its owner; Semple V. Gallery, 184 Pa. 95, 41 W. N. C. 356, 39 Atl. 6, where the seller, by agreement, kept bonds in his posses- sion, and improperly converted them to his use. XJtah. — ^Larsen v. Utah Loan & Trust Co., 23 Utah, 449, 65 Pac. 208. 84. American Tobacco Co. v. Peo- ple's Tobacco Co., 204 Fed. 58. 85. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381; Fogg v. Per- ris Irr. Bist., 142 Cal. xviii. Where plaintiff knew that a corpor- ation's directors had fraudulently as- sessed his stock, and sold the same under the assessment, his failure to discover other frauds perpetrated by them, without seeking to inspect the corporation's books, did not delay the running of limitations, since he would be presumed to know all that reason- able diligence would have disclosed to him. Marks v. Evans, 129 Cal. xyiii, 62 Pac. 76. 86. Manley v. Robertson, 6 Kan. App. 921, 51 Pac. T&5. A defense in which it is sought to avoid a written agreement and re- 1382 Statutes of Limitation. pendent of the original fraud, for the purpose of keeping the in- jured party in ignorance, but where one practices fraud the subse- quent concealment of it from the injured party is a keeping in ignorance by fraud.^^ In New York, where a contract is induced by fraud, action for damages accrues immediately, and limitations begin to run against recovery immediately on its execution or discovery of the fraud.*^ In Texas, a cause of action for fraud accrues at the time of the discovery of the fraud, or when it should have been discovered by the use of ordinary diligence, and limita- tions begin to run at that time.^' In Missouri, limitations are no defense to a suit against defendant member of a real estate loan firm for his absconded associate's fraud in a partnership transaction, brought within the period of limitations after actual discovery of the fraud, where plaintiff was not negligent in failing earlier to discover the fraud.^ In Virginia, in an action form the same, on the ground of fraud, is barred after two years from the discovery of the fraud. M'cCor- mick Harvesting Maeh. Co. v. Hayes, (Kan. App.), 49 Pac. 632. 87. New England Mut. Life Ins. Co. V. Swain, 100 Md. 558, 60 Atl. 469. 88. Isman v. Loring, 130 App. Div. 845, 115 N. Y. Supp. 933. A cause of action for fraud in pro- curing a contract to marry accrues when the contract is made, not when the fraud is discovered. Reilly v. Sabater, 43 N. Y. Supp. 383, 26 Civ. Proc. R. 34. 89. Howell V. Bank of Snyder (Tex. Civ. App.), 158 S. W. 574. In cases of fraud when the means of discovery are at hand, diligence must be exercised to discover the fraud, but the statute does not run until there is some circumstance or fact to arouse suspicion. Smalley v. Togt (Tex. Civ. App.), 166 S. W. 1. See also Coleman v. Ebeling (Civ. App.), 138 S. W. 199; Clement v. Cle- ment (Civ. App.), 99 S. W. 138; Stanford v. Finks (Civ. App.), 99 S. W. 449 ; Martinez v. Gutierrez's Heira (Civ. App.), 172 S. W. 766; Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48; Pitman v. Holmes, 34 Tex. Civ. App. iS'S, 78 S. W. 961; West v. CTark, 28 Tex. Civ. App. 1, 66 S. W. 215; Cetti v. Dunman, 26 Tex. Civ. App. 433, 64 S. W. 787; American Freehold Land Mortg. Co. of London V. Pace, 23 Tex. Civ. App. S22, 56 S. W. 377. 90. Monmouth College v. Dockery, 241 Mo. 522, 145 S. W. 785. Failure to discover fraud will not toll the statute, unless defendant did some act which prevented the discov- ery. State ex rel. O'Malley v. Mus- ick, 165 Mo. App. 214, 145 S. W. 1184, adopting opinion 145 Mo. App. 33, 130 S. W. 398. Eev. St. 1909, § 1889, subd. 5, gov- erns a suit by a stockholder for the benefit of the corporation for an ac- counting and for profits growing out Effect of I^EAtro. 1383 at law to recover an overpayment by reason of fraud, limitations run from the date of the settlement and payment ; but in equity only from the discovery of the fraud.^^ In Wisconsin, where a stock- holder at the time stock was wrongfully transferred by the corpora- tion, had a legal remedy and an equitable remedy for the same wrong, the statute of limitations ran upon the equitable remedy and barred it when it had run upon the legal remedy; the Wis- consin statute as to accrual of cause of action not applying.'^ Un- der the Kentucky statute, ignorance of, or failure to discover, the existence of a transfer in fraud of creditors, does not prevent the running of the ten-year limitation against actions for relief for fraud.^^ § 276b (2). What constitutes cause for relief on ground of fraud. The fact that a deed is withheld from record or is otherwise concealed is a badge of fraud, and when accompanied by other evidence of fraudulent intent will prevent the statute of limitations from running in favor of a grantee against a suit affecting the property during its concealment.^* Where defendant's title to certain land in controversy was of record, and the validity thereof could have been ascertained by an examination, his mere statement that he owned a particular title to the land prior to his convey- ance thereof to the plaintiff, was not such fraud as would sus- pend the statute of limitations, reasonable effort not having been made by plaintiff to ascertain the source of such title.^^ The Cali- of an alleged fraud perpetrated on the 93. Graham's Adm'r v. English, 160 corporation, and limitations begin to Ky. 375, 169 S. W. '83'6, under Ky. run from the date of transaction al- St. § 2519. leged by the stockholder to constitute 94. Linn & Lane Timber Co. v. a fraud on the corporation. Johnson United States, 196 Fed. 593, 116 C. V. United Rys. Co. of St. Louis, 243 0. A. 267, aff'g United States v. Mo. 278, 147 S. W. 1077. Smith, 181 Fed. 545. And see United 91. Grove v. Lemley, 114 Va. 202, States v. So. Pac. Co., 225 Fed. 197. 76 S. E. 305; Senseny's Adm'r v. 95. Wilson v. Le Moyne, 204 Fed. Boyd's Adm'r, 114 Va. 308, 76 S. E. 726, 123 C. C. A. 30, under €ode Pub. 280. Gen. Laws Md. 1904, art. 57, § 14. 92. Casper v. Kalt-Zimmers Mfg. In suits in equity, where relief is Co., 159 Wis. 517, 149 N. W. 754, un- sought on the ground of fraud, and der St. 1913, § 4222, subd. 5. the party injured remained in ignor- 1384 Statutes op Limitation. fomia. statute applies to all actions for relief against fraud, whether legal or equitable, and the cause of action does not accrue until the actual discovery of the fraud, from which time limitations begin to run.^^ Under the Alabama statute, in the absence of a fidu- ciary relation, imposing a duty to disclose, there must be some act calculated to mislead or to lull inquiry before the exception to the statute can be invoked.^'' In Georgia, where the basis of an action is actual fraud, ' limitations do not run against the right of action until the fraud is discovered, or could have been discovered by ordinary diligence.^* In Kentucky, it has been held that where the insured could have discovered by inspection whether life poli- cies delivered to him conformed to the preliminary contract, his right of action to have the policies corrected accrued at the time of their delivery to him, from which date the statute began to run.'' The Iowa statute is applicable only to suits solely cognizable in equity.-'^ The Idaho statute applies only to actions for fraud within the common acceptance of those terms and the cause of action does not accrue until the discovery of the facts constituting the fraud.^ In Kansas, a cause of action, founded on fraud, for damages is deemed to have accrued when the fraud was discovered, and the ance of the fraud, ■without fault or 97. Van Ingen v. Duffin, 158 Ala. want of diligence on his part, limita- 318, 4'8 So. 507. tion does not begin to run until the 98. American National Bank of fraud is discovered, although there Macon v. Fidelity & Deposit Co. of are no special circumstances, and no Maryland, 131 Ga. 854, 63 S. E. 622; effort on the part of the party com- Garbutt Lumber Co. v. Walfter, 6 Ga. mitting the fraud to conceal it. Board App. 189, 64 S. E. 698. of Levee Ctim'rs' of Tensas Basin 99. Provident Saving Life Assur. Levee Dist. v. Tensas Delta Land Co., Society of New York v. Withers, 132 804 Fed. 736, 133 C. 0. A. 40. Ky. 541, 116 S. W. 350. The statute 96. Lightner Mining Co. v. Lane, does not apply to actions for maliei- 161 Cal. 689, 120 Pac. 771. See also, ous prosecution. Hutchings v. Fra- Osmont V. All Persons, 165 Cal. 587, ser, 4 Ky. Law Kep. (abstract) 448. 133 Pac. 480; McMurray v. Bodwell, 1. Da-ugherty v. Daugherty, 116 16 Cal. App. 574, 117 Pac. 62.7 ; Vance Iowa, 245, 90 N. W. 65. V. Supreme Lodge of Fraternal Broth- 2. Burch v. Nicholson, 157 Iowa erhood, 15 Cal. App. 178, 114 Pac. '83. 502, 137 N. W. 1066; Havirdo v. Lung, 19 Idaho 790, 115 Pac. 930. Effect of Eiu.UD. 1385 statute does not apply to an action founded on contract.^ In Mass- achusetts, the time limited by statute within which a corporation must sue a promoter for secret profits made in selling property to the corporation doea not begin to run until the facts have or ought to have been discovered ; for the liability of the promoter is based on his breach of trust, and his duty required him to disclose the facts on which the cause of action rests.* The Nebraska statute applies to actions for fraud affecting the title to real estate as well as to actions affecting the title to personalty.^ In ISTew Jersey a claim in equity against a legatee to charge him as trustee ex malificiOj of which claim complainant had knowledge before she became of age, which was not prosecuted, within twenty years after becoming of age, is barred by limitations.^ New York Code Civ. Proc, 382, subd. 5, providing that a cause of action for fraud does not accrue Tintil discovery of the facts, governs actions in which the fraud complained of is the essential fact, and does not apply to an action against a corporation wrongfully transferr- ing stock on a forged power of attorney.'' The North Carolina stat- 3. Sherman v. Havens, &6 Kan. 99, 5. Kohout v. Thomas, 4 Neb. 119 Pac. 3TO; Mateer v. Great West- (Unof.) 80, 9*3 N. W. 431. em Land Co., 91 Kan. 349, 137 Pac. 6. Heinisch v. Pennington (N. J. 786; Gillmore T. Gillmore, 91 Kan. Ch.), 73 Atl. 1118, aff'g 68 Atl. 333. 393, 137 Pao. 958 ; 91 Kan. 707, 139 7. Glover v. National Bank of Com- Pac. 386, an action for damages from merce of New York, 156 App. Div. 347, inducing plaintiff to become a user 141 N. Y. Supp. 409. For other in- of morphine in ignorance of its na- stances where Code Civ. Proc. N. Y., ture is not within the statute; Atehi- subd. 5 has been applied see the fol- son, etc., Ky Co. v. Atchison Grain lowing cases: Co., 68 Kan. 585, 7'5 Pac. 1051, 70 Pao. Gabriel v. Gabriel, 79 Misc. Rep. 933; Nelson v. Stull, 65 Kan. 585, 70 346, 139 N. Y. Supp. 778; Finnegan Pac. 590, 68 Pac. 617; Rizer v. Board v. McGuffog, 303 N. Y. 342, 96 N. E. of Com'rs of Geary County, 58 Kan. 1015, a,ff'g judg. 139 App. Div. 899, 114, 48 Pac. 586. 133 N. Y. Supp. 539, action to en- 4. Old Dominion Copper Mining & force a constructive trust; Slayback Smelting Co. v. Bigelow, 303 Mass. v. Raymond, 93 App. Div. 336, 87 N. 169, 89 N. E. 193. See, as to circum- Y. Supp. 931, aff'g judg. 40 Misc. stances under whioh fraud cannot be Rep. 601, 83 N. Y. Supp. 15; Kelley presumed, Colby v. Shute, 319 Mass. v. Pratt, 41 Misc. Rep. 31, 83 N. Y. 311, 106 N. E. 1006. Supp. 636; Talmadge v. Russell, 74 1386 Statutes of Limitation. ute applies only in actions for fraud or mistake, and the statute runs from the discovery of the facts and not from the discovery by a party of rights theretofore unknown to him.^ The Ohio stat- ute includes actions to set aside deeds fraudulent as to creditors.' The Utah statute applies to the fraud of a bank in loaning the money of a depositor in a different manner than he directs, for the benefit of the bank, though the fraud is not intentional.^* The Washington statute applies to causes of action for embezzlement of funds and issuance of illegal warrants by a county auditor.^ Under the express provisions of the Wisconsin statute, an equitable action for relief on the ground of fraud does not accrue until dis- covery by the aggrieved party of the facts constituting the fraud." § 276b (3). Fraud in obtaining possession of or title to property. Where petitioners were led by the grantee to believe that a deed was to him as guardian for them, and were content that the land should be so held that their mother might have a home on the App. Div. 7, 76 N. Y. Supp. 854; Libby v. Vanderzee, 176 N. Y. 591, 68 N. E. 1119, aff'g judg. 80 App. Div. 494, 81 N. Y. Supp. 139, an action by a ward against the executors of his deceased guardian to compel an ac- counting; Mason v. Henry, 153 N. Y. 539, 46 N. E. 837; Seitz v. Seitz, 59 App. Div. 150, 69 N. Y. Supp. 170. 8. Bonner v. Stotesbury, 139 N. 0. 3, 51 S. E. 781. 9. Stivens v. Summers, 68 Ohio St. 4,31, 67 N. E. 884. 10. Larsen v. Utah Loan & Trust Co., 33 Utah, 449, 65 Pac. 308. 11. Skagit County v. American Bonding Co. of Baltimore, 59 Wash. 1, 109 Pac. 197. See, as to other ac- tions: Johnstone v. Peyton, 59 Wash. 436, 110 Pac. 7; Conaway v. Co-opera- tive Home Builders, 65 Wash. 39, 117 Pac. 716. 12. Boon V. Root, 137 Wis. 451, 119 N. W. 131. For cases in which the statute has been applied, see: Foote V. Harrison, 137 Wis. 588, 119 N. W. 391; Steinberg v. Salzman, 139 Wis. 118, 130 N. W. 1005 ; State v. Chica- go & N. W. Ry. Co., 133 Wis. 345, 113 N. W. 515; State v. Chicago, etc., Ry. Co., 133 Wis. 364, 113 K W. 533; Pietsch V. Milbrath, 133 Wis. 647, 68 L. R. A. 945, 107 Am. St. Rep. 1017, 101 iSr. W. 388, 103 N. W. 843. As to what constitutes cause for relief on the ground of fraud under the statutes of other states, see : Miss. — Jones v. Rogers, 85 Miss. 802, 38 So. 743. Mo. — ^Ruff V. Milner, 93 Mo. App. 630. Mont. — Chowen v. Phelps, 26 Mont. 524, 69 Pac. 54. 8. C— Lenhardt v. French, 57 S. C. 493, 35 S. E. 761. Teao. — ^Dean v. A. G. McAdam Lum- ber Co. (Tex. Civ. App.), 172 S. W. 763. Effect of Feaud. 1387 same, a suit to cancel the deed, soon after they discovered that it vested an absolute title in the grantee, v^as not barred by limita- tions, though the deed had been executed for twenty-nine years.^* In an action to set aside a deed on the ground of fraud, the cause of action will not be deemed to have accrued at the time of the de- livery of the deed, but at the time of the discovery of the fraud by means of which the grantor was induced to execute and deliver the same." An action to set aside a deed on the ground that it was procured by fraud was not barred by limitations, though brought more than five years after the deed was made, where it was brought within five years from the time the grantor discovered the fraud, and the evidence authorized the conclusion that the grantor could not by the exercise of ordinary care, have discovered the fraud sooner.-^^ Fraud of the vendee of goods sold and delivered, first discovered after action for the price is barred by limitations, will not revive it.-^^ Where a man, by fraudulently representing himself as single, married defendant, and obtained from her a conveyance of her land without consideration other than the relationship exist- ing between them, limitations do not begin to run as to her right to cancel such conveyance until she discovers the fraud." Limita- tions will not begin to run against an action by a county to re- cover a road tax, refunded to a taxpayer in reliance on a fraudulent 13. Albritton v. Giddings, 140 Ga. S. W. 294, an action for the reforma- 169, 78 S. E. 733. tion of a deed for fraud. 14. Brown v. Brown, 62 Kan. 666, 16. Rouss v. Ditmore, 122 N. 0. 64 Pae. 599. Where defendant in- 775, 30 S. E. 335. dueed plaintiff to sign a deed of land 17. Hodges v. Hodges, 27 Tex. Oir. to him, she supposing it to be a power App. 537, 66 S. W. 239. of attorney, an action for relief is A vendee, who purchases land, not barred until two years after the knowing at the time that children of discovery of the deception. Kahm v. the vendor have an equity therein, Klaus, 64 Kan. 24, 67 Pac. 542. participates with the vendor in a 15. Potter V. Benge, 24 Ky. Law fraud on them, so that the statute Eep. 24, 67 S. W. 1005. See also does not run in his favor against them Graves v. Trimble's Assignee, 1 Ky. until they discover, or should discov- Law Rep. (aibstract) 416; Morgan v. er, the same. Worst v. Sgitcovioh Comba, 32 Ky. Law Rep. 1S05, 108 {Tex. Civ. App.'), 46 S. W. 72. S. W. 272; 33 Ky. Law Rep. 817, 111 1388 Statutes of Limitation. certificate that the tax had been worked out, until the refunding of the money and the detection of the fraud by the county.^' An action for fraud, in that defendant made misrepresentations as to the title to land, the growing timber on which was sold to plaintiff, is barred, under the Alabama statute, where it is shown that the fraud was discovered by plaintiff more than a year before com- mencement of the action.-^^ An action by an administrator to re- cover the value of land conveyed by deceased on the ground that the deed was procured by fraud or undue influence, where the facts constituting the same are discovered by the heirs, and the adminis- trator appointed and a suit commenced more than seven years after such discovery, is barred by limitations, under the Minnesota statute.^" A suit to enforce a constructive trust in a mining claim arising out of the fraudulent acts of plaintiff's co-owner was sub- ject to the limitations prescribed by the Montana statute.^-^ Where complainant employed her brother to obtain restitution of certain land which she had been induced to convey by fraudulent repre- sentations, complainant's right of action was barred at the ex- piration of seven years after the brother acquired knowledge of the fraud, under the Tennessee statute.^^ In Texas, a cause of action by a chattel mortgagee for conversion accrues on the discovery of the fraud participated in by the person converting the mortgaged chattels.^^ Under the Utah statute, a city is not entitled more than three years after judgment quieting title to land as against it to bring suit to set aside the judgment for fraud, consisting of the plaintiff's knowledge of the city's title and its own lack of title.=^ 18. Walla Walla County v. Oregon 23. Port Arthur Rice Milling Co. E. & Nav. Co., 40 Wash. 398, 83 Pao. r. Beaumont Rice Mills, 105 Tex. 514, 716. 143 S. W. 936, rev'g judg. 141 S. W. 19. Christian v. Denmark, 156 Ala. 349, 148 S. W. 283. See, as to ac- 390, 47 So. 83. tion for conversion of a special de- 20. Howard v. Farr, 115 Minn. 86, posit by a bank, Prosser v. First Nat. 131 N. W. 1071. Bank of Del Rio (Tex Civ. App.), 134 21. Delmoe v. Long, 35 Mont. 38, S. W. 781. 88 Pac. 778. 24. Salt Lake City v. Salt Lake 22. Boro V. Hidell, 123 Tenn. 80, Inv. Co., 43 Utah 181, 134 Pac. 603. 120 S. W. 961. Effect OF' Featjd. 1389 § a76b(4). Fraud in obtaining judgment. Under California Code Civ. Proc, §§ 1327, 1333, providing that any person interested may contest a will within a year after its probate, an heir who was absent from the State when a fraudu- lent will was probated, and for more than a year thereafter, and who did not discover the fraud until after the expiration of such year, was nevertheless barred from contesting the will after the ex- piration of the statutory limitation.^^ In Louisiana, an action to annul a judgment for fraud is prescribed in one year from the discovery of the fraud, and the burden is on plaintiff in nullity to show when such discovery was made.^ In Texas, limitations commence to run against an action to set aside a judgment, on ac- count of the fraud of plaintiff's attorneys representing him at the time it was rendered, from the time when the fraud is discovered or should have been;^^ and to suspend the running of limitations so as to permit an attack on a judgment for taxes after the expiration of four years there must not only have been fraud in obtaining the judgment, but it must have been coupled with such concealment of the fraud as to prevent the attacking party from ascertaining the fraud by the use of reasonable diligence.^* 25. In re Davis' Estate, 136 Cal. A suit to open and alter a parti- 590, 69 Pac. 413. tion decree for fraud is barred in A complaint to modify a decree on four years after rendition of the de- tJie ground that, as made, it was pro- cree, though the fraud was not dis- cured by fraud, is bad, where it shows covered until a short time before the that plaintiffs knew of the decree suit, where no reason is shown why within the six months allowed by it was not discovered sooner. Wood- Code Civ. Proc, § 473, for moving house v. Cocke (Tex. Civ. App.), 39 to modify or vacate judgments. Hel- S. W. 948. See also East Texas Land ler V. Dyerville Mfg. Co., 116 Cal. & Improvement Co." v. Graham, 34 137, 47 Pac. 1016. Tex. Civ. App. 531, 60 S. W. 473, 26. Succession of Dauphin, 112 La. holding that there was a failure to 103, 36 So. 387. show such diligence in discovering 27. Watson v. Texas & P. Ry. Co. fraud in the judgment sought to be (Tex. Civ. App.), 73 S. W. 830. set aside as would relieve plaintiff 28. Dunn v. Taylor, 4S Tex. Civ. from the charge of laches, or prevent App. 341, 94 S. W. 347. the running of the statute. 1390 Statutes of Limitation. § 276b(5). Action for deceit. Where fraud relied on as the basis of an action for deceit is concealed by the defendant, the statute of limitations does not begin to run until it is discovered, or might have been discovered by plaintiff in the exercise of reasonable diligence.^' In IsTew York, limitations run against a cause of action for damages for deceit by which plaintiff wa& induced to purchase corporate stock from the consummation of the fraud, and not from the discovery thereof.^" In Minnesota, where a complaint shows that plaintiff began miit for deceit within a reasonable time after discovering the fraud, and it does not appear that he was guilty of laches, the ac- tion is not barred by limitations.^^ The Florida statute, pre- scribing limitations in actions for relief on the ground of fraud, applies to an action for deceit, wherein defendant " ought to have knovm " the falsity of his representations, as well as in a case wjiere he actually knew their falsity.^^ In Texas, limitations do not com- mence to run against a cause of action for deceit until the discovery 29. Garnet v. Haas, 165 Iowa 565, opinion modified (Iowa), 135 K W. 146 N. W. 465. 207. In view of Code, § 3447, par. 6, re- 30. Ball v. Gerard, 160 App. Div. quiring actions for relief on the 619, 146 N". Y. Supp. 81. See Coffin ground of fraud in cases theretofore v. Barber, 115 App. Div. 713, 101 N. solely cognizable in a chancery court, Y. Supp. 147, wherein plaintiff was to be commenced within five years, held charged with knowledge of the section 3448 providing that, in ao- falsity of defendant's representations tions for relief on the ground of at a date which barred the action by fraud, etc., the cause of action shall limitations. not be deemed to have accrued until 31. Newstrom v. Turnblad, 108 the fraud is discovered, applies only Minn. 58, 121 N. W. 236; Norrbom to cases of fraud for which relief may v Turnblad, 108 Minn 521, 121 N. W. be obtained in equity, so that an ac- 236. tion for damages for false representa- 32. Watson v. Jones, 41 Fla. 241, tions inducing a sale, being merely a 25 So. 67S, under Rev. St. 1894, § common-law action for deceit, ac- 1294, prescribing a limitation of three orued when the transaction was con- years in action for relief on the ground summated so as to set limitations of fraud, the cause of action not to be running, and not when the fraud was deemed to have accrued until the dis- disoovered by the party aggrieved. covery by the aggrieved party of the McKay v. McCarthy, 146 Iowa 546, facts constituting the fraud. 123 N. W. 755, rehearing denied and Effect of Featjd. 1391 of the fraud, where the failure to discover the fraud sooner was not due to any negligence.^' § 276b (6). Fraud in sale of property. Defendant in an action for balance of purchase price of a fruit farm is not barred by limitations from defending, and recovering by cross complaint money paid, on the ground of fraudulent repre- sentations ; not having till then discovered the misrepresentation as to amount of land, and become convinced of the falsity of plain- tiff's representation as to the amount of profits he had realized from the land, and his representation, repeated year after year, that the reason defendant did not obtain such profits was due to his want of experience.^* Where a vendor makes fraudulent misrepresenta- tions as to the condition of the title of the land sold, the cause of action for such fraud accrues on the discovery of the fraud, though the falsity of the representations could have been discovered by an examination of the record.'^ An action quanti minoris, which by reason of the fact that the seller knew the vice of the thing he sold and omitted to declare it falls under the provisions of Louis- iana Civ. Code, art. 2545, is governed by the prescription of one year after discovery of the vice.^® An action for damages for mis- representations in the sale of a bond is not affected by limitations, where the falsity of the representations was only discovered by plaintiff about a year previous to the trial of the case.'^ In a suit 33. Western Cottage Piano & Organ The rule that, if an examination of Co. V. Griffin, 41 Tex. Civ. App. 76, the public records would reveal a 90 S. W. 884. Limitations will not fraud, the records are constructive no- begin to run against an action for ticc sufficient to set limitations in fafse representations until the falsity motion, does not obtain in favor of a of the representations is discovered, vendee who procured his conveyance or should have b3en discovered by the by fraudulent representations aa to use of ordinary diligence. Harris v. the state of the record on which the Cain, 41 Tex. Civ. App. 139, 91 S. W. vendor relied. Hutto v. Knowlton, 8^5 ' 83 Kan. 445, 108 Pac. 825. 34. Evans v. Duke (Cal. App.), 69 36. George v. Shreveport Cotton Oil Pac. 688, rev'd 140 Cal. 23, 73 Pac. Co., 114 La. 498, 38 So. 432. 732 37. Edwards v. Noel, 88 Mo. App. 35. Claggett v. Crall, 13 Kan. 393. 434. 1392 Statutes op Limitation. for fraud because of the shortage in acreage in land transferred to plaintiff, an action not brought for thirteen years, during ten of which plaintiff lived on the land, was barred by Missouri Eev. St. 1909, § 1889, barring such an action in five years from the dis- covery of facts constituting the fraud.^^ Where a grantor fraud- ulently misrepresented the number of acres conveyed, neither the Texas two-years nor the four-years statute of limitations will begin to run against an action for damages for shortage, until the fraud is discovered or could have been discovered.^^ Under the South Carolina statute, limitations begin to run against a person seeking to set aside a sale under execution because of chilling the bidding, from the time of the discovery of the fraud.** Where a seller by mistake drew on the purchasers for less than the price, the failure of the purchasers to notify him of the mistake was not legal fraud, within the Washington statute, providing that, in an action for relief on the ground of fraud, the cause of action shall not be deemed to have accrued until the discovery of the facts constituting the fraud.*-^ § 276b (7). Fraud of person acting in official or fiduciary capacity. Under Georgia Civ. Code 1910, § 3084, fixing the limitation of proceedings for an accounting by guardian after settlement, and section 4380, before plaintiff can fix a new point for the running of limitations for concealed fraud, he must exercise reasonable diligence to detect the fraud.*^ The bar of the statute of limita- 38. Powell V. White, 170 Mo. App. until the discovery of the fraud. Heia- 598, 157 S. W. 111. ler v. Clymer, 179 Mo. App. 110, 161 In an action for the value of stock S. W. 337. and for an accounting, for fra,ud in 39. Powell v. March (Tex. CSv. representing that stock transferred to App.), 169 S. W. 936. plaintiff was his pro rata share of 40. Toole v. Johnson, 61 S. C. 34, that held by defendant as trustee for 39 S. E. ZSi, under Code, § 112, subd. plaintiff and others, the facts were 6. held insufficient to bring the case 41. Evert v. Tower, 51 Wash. 514, within Eev. St. 909, § 1889, subd. 5, 99 Pae. 580. providing that causes of action for 42. Bennett v. Bird, 139 Ga. 25, 76 fraud are not deemed to have accrued S. E. 568. An action by a vendee Effect of Fea-ud. 1393 tions is removed where it appears that defendant practiced a fraud on the plaintiff while standing in a fiduciary relation to the plain- tiff, and concealed the real facts.^^ When property is fraudulently sold, by the administrator of a partnership, to pay debts of the partnership, for which purpose he has in his hands other partner- ship assets, which he conceals and applies to his own use, such ad- ministrator is chargeable with the rents and profits of such prop- erty from the date of the sale; such recovery not being barred by the three-year statute of limitations, concerning implied con- tracts, since the cause of action dates from the discovery of the fraud.** Knowledge of trustees, appointed to hold property upon the termination of a prior trust, of the fraudulent concealment by the former trustee of trust property, or want of ordinary diligence to discover such fraud, is imputed to the beneficiaries or those claiming under them, so as to bar an action to compel a reaccount- ing on the ground of fraud, within the statutory time, under the Maryland statute of limitations.*^ Under the Kentucky statute, against a vendor to recover damages for a deficiency in quantity of the land sold, based on fraud of the ven- dor, of which plaintiff was kept in ignorance because of the fiduciary re- lation existing between defendant and her, was within Code, § 2931, provid- ing that, if defendant is guilty of fraud by which plaintiff was deterred from his action, the limitation shall run only from the discovery of the fraud. Kirliley v. Sharp, 98 Ga. 484, 25 S. E. 562. 43. Barnes v. HufTman, 113 111. App. 236. But the bar of the statute will not be removed where title to the land in dispute was a matter of rec- ord and had passed to innocent third parties, holding the land in good faith upon the validity of the title they had reoeived. Smith v. Clark, 248 111. 255, 93 N. E. 727. 44. Branner v. Nichols, 61 Kan. 88 356, 59 Pac. 633. But see Walline v. Olson, 84 Kan. 37, 113 Pac. 426, where, in an action against defend- ants on the ground of fraud of the administrator of an estate on whose bond they were sureties, the records of the probate court involving the transactions complained of were held constructive notice of the alleged fraud sufficient to set in motion the two-year statute of limitation. Where a county cleric fraudulently draws county warrants for a sum in excess of the amount allowed by the board of county commissioners, the cause of action against him and his bondsmen does not accrue until dis- covery of the fraud. Allen v. State, 6, Kan. App. 915, 51 Pac. 573. 45. Eeeder v. Lanahan, 111 Md. 372, 74 Atl. 575; under Acts 1868, p. 646, c. 357 (Code Pub. Gen. Laws 1904, art. 57, § 14), requiring such 1394 Statutes of Limitation. an action to surcharge a false settlement between a sheriff and his deputy made in 1899 was barred February 9, 1911, though the fraud was discovered within the statutory period prior to the latter date.*^ An action in equity being maintainable against a thief's administrator for an accounting because of the thief's fraud in concealing the property, its sale, and the receipt of its proceeds, the action under ISTew York Code Civ. Proc, § 382, subd. 5, is not barred till six years after discovery of the fraud, though the ultimate relief sought is a money judgment.^' The statute does not begin to run against an action by a cestui que trust till the tjme of the discovery by the latter of fraud or mistake on which it is based.^^ Under the general rule that, where one person represents both sides of conflicting claims, limitations do not run, a suit by one trust estate to recover from another for funds stolen by a common trustee, and applied to the benefit of defendant estate, is properly brought within six years after discovery of the embezzle- suits to be brought within three years from the time the action ac- crues, provided that, where one hav- ing a, cause of action has been kept in ignorance by the adverse party, the right of action shall be deemed to have accrued when the fraud is, or, with ordinary diligence could have been, discovered. 46. Alexander v. Alexander, 154 Ky. 773, 159 S. W. 583, denying re- hearing 154 Ky. 334, 157 S. W. 377, under Ky. St. § 2519, providing that an action for relief on the ground of fraud or mistake may be brought within five years after discovery, but no action shall be brought more than ten years after the perpetration of the fraud. 47. Lightfoot V. Davis, 132 App. Div. 452, 116 N. Y. Supp. 904, order rev'd 198 Jf. Y. 261, 91 N. E. 583. 48. Levy v. Eyland, 32 Nev. 460, 109 Pac. 905. Where a widow sought to rescind a contract of settlement with the trus- tees of her deceased husband because of fraud in procuring it, the statute of limitations (Rev. St. 1898, § 4222) commenced to run from the time that she knew of the fraud con- stituting the ground of her cause of action, or might have known thereof by the exercise of ordinary care. Ludington v. Patton, 111 Wis. 208, 86 N. W. 571. Ballinger's Ann. Codes & St. I 4800, subd. 4, relieves a cestui que trust, whose trustee converts the trust property, and conceals the fact from the former, from the duty of using diligence to discover such fraud, and limitations do not com- mence to run until he has received actual knowledge thereof. Irwin v Holbrook, 26 Wash. 89, 66 Pac. 11& Effect of Featjd. 1395 ment/* Where an administrator of his wife's estate falsely and fraudulently informs the widow of his son that she has no interest in the decedent's estate, although as a matter of fact she is en- titled to a share therein as the heir of her own deceased child, and distribution is made without her sharing in it, the statute of limi- tations begins to run in favor of the administrator or his estate only from the date when the fraud was discovered.^" "Where in- testate was trustee of a secret trust, so far as complainant was concerned, limitations did not begin to run against his administra- trix to recover for alleged breaches of trust until the right of action accrued on discovery of the f raud.^^ § 276b (8). Fraud of agent or attorney. The statute of limitations does not begin to run against an agent, for misappropriation, until discovery by the principal of the defalcation.^^ Limitations do not run against a principal and in 49. Bremer v. Williams, 310 Mass. 356, 96 N. E. 687. Suit by wards to avoid the sale of tteir lands by their guardian indi- rectly to herself is not barred as a stale claim, though not brought within the 10 years of their attain- ing full age, the limitation fixed by Rev. Laws, c. 203, § 34, for recovery of land; they having brought it soon after learning of the fraud, and hav- ing exercised reasonable diligence. Sunter v. Sunter^ 190 Mass. 449, 77 N. E. 497. 50. In re Eoseburg's Estate, 47 Pa. Super. Ct. 355. Where money was deposited with testator for investment, and the se- curities purchased therewith were misappropriated by him, and he ren- dered detailed statements to the de- positor of investments alleged to have been made, and paid her from time to time money stated to have been de- rived therefrom, and after his death, the executors, who had full knowledge of the facts, continued such state- ments and payments, -limitations did not begin to run against the deposi- tor's claim until discovery by her of the facts. In re Claghorn's Estate, 181 Pa. 609, 37 Atl. 931. 51. Ruasel v. Huntington Nat. Bank, 162 Fed. 868, 89 C. O. A. 558 (W. Va.). 52. San Pedro Lumber Co. v. Rey- nolds, 131 Cal. 74, 53 Pac. 410; Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101. Where an ofiScer misappropriates money intrusted to him and fraudu- lently conceals his default, limita- tions will not begin to run until the discovery of the fraud and of the ■breach of the conditions of his bond. McMullen v. Winfield Building & Loan Ass'n, 64 Kan. 398, 67 Pac. 893, 56 L. R. A. 924, 91 Am. St. E#p. 336. 1396 Statutes of Limitation. favor of an agent, who lias misappropriated the funds of the prin- cipal, until the misappropriation has been discovered, if reason- able diligence has been used.^ Where a married woman intrusted her property to the management of agents, and such agents, by fraud, acquired the title to the property, the statute of limitations has no application to an action brought by her after the fraud was discovered, for Eev. St. Mo., 1909, § 1889, provides that an action for relief on the ground of fraud shall not be deemed to have ac- crued until the discovery of the fact constituting the fraud. ^^ Where an attorney wrongfully dismissed an action he was engaged to prosecute, representing to his client that the case had been decided adversely, limitations begin from the time of the dismissal, not- withstanding Rem. & Bal. Code, Wash., § 159, subd. 4, declaring that, in actions based on fraud, the cause shall not be deemed to have accrued until the discovery of the fraud.^^ Where plaintiff sued defendant for fraud in investing her money as her agent, in accepting a second mortgage security, which he fraudulently repre- sented to her was the first mortgage on the property, limitations did not begin to run against plaintiff's right of action until she actually discovered the fraud, or until such time as she might have discovered it by the exercise of ordinary care.^^ Where a principal The statute does not begin to run lief on the ground of fraud, within against an action for false represen- the statute of limitations (3 Sal- tations of authority to contract un- linger's Ann. Codes & St. § 4800, til discovery of the fraud. Pierson subd. 4). Stearns v. Hochbrunn, 34 V. Holdridge, 93 Kan. 365, 140 Pae. Wash. 306, 64 Pac. 165. 1033. 56. Faust v. Hosford, 119 Iowa 97, 53. Ash V. A. B. Frank Co. (Tex. 93 N. W. 58, and the agent's subse- Civ. App.), 143 S. W. 42. See also, quent silence as to the fact that the Arkins v. Arkins, 20 Colo. App. 133, mortgage was a second mortgage 77 Pac. 356. amounted to a continuance of the ori- 54. Witte V. Storm, 236 Mo. 470, ginal fraud, sufficient to suspend the 139 S. W. 384. statute of limitations, as against an 55. Cornell v. Edsen, 78 Wash. 663, action against the agent for the 139 Pac. 602. fraud, until plaintiff became aware An action against a broker for thereof, or by the exercise of ordinary fraudulently converting to his own care could have discovered it. use moneys of plaintiff is one for re- Effect of Fkaud. 1397 sends a horse to an agent to sell, and the latter sells the horse, but not only conceals the fact of the sale from the principal, but also attempts to make the principal believe that the horse had been killed, and the principal does not learn these facts until he is barred by the statute from bringing suit against the purchaser, the statute of limitations does not run in favor of the agent against his prin- cipal from the date of the sale of the horse, but only from the dis- covery of the fraud.^^ Limitations do not run against the right of action by a purchaser of a note, falsely purporting to be secured by a vendor's lien, against the agent through whom he purchased the note, until his discovery of the agent's interest in the proceeds of the sale thereof .^^ § 276b (9). Actions to open account or settlement. Limitations do not run against an action to set aside a partner- ship accounting until the discovery of the fraud. ^^ A suit to set aside a settlement and release, and an order approving a guar- dian's final report on the ground that the release was obtained by fraud, was not barred, though it was not brought within five years after plaintiff's majority, where she did not learn of the fraud 57. Cloyd V. Reynolds, 52 Pa. on defendant making sales and ap- Super. Ct. 365. Evidence that the propriating the proceeds, was not agent had not in fact been paid for barred by limitations, where it was the horse is immaterial, as is also brought within two years after plain- that a new agreement was substi- tiff learned the facts by an independ- tuted for the orignal agre ment, after ent investigation. Thomason v. Rog- the sale of the horse, if it appears ers (Tex. C'.v. App.), 155 S. W. 1040. that the principal entered into the Where a purchaser sued the broker new agreement without knowledge of of the vendor for fraud inducing the the fraud and concealment which had purchase, the action was barred by been practiced upon him; and it is the four-years limitations; the failure also immaterial in such a case to discover tlie fraud not being ex- whether the purchaser of the horse cused. Gordon v. Rhodes & Daniel was solvent or insolvent. Id. (Tex. Civ. App.), 117 S. W. 1023, 58. Young v. Barcroft (Tex. Civ. certified questions answered 116 S. App.), 168 S. W. 392. W. 40. An acton for fraud committed by 59. Johnston v. Johnston, 107 defendant employed to s^l plaintiff's Minn. 109, 119 N. W. 652. land for a part of the proceeds, based 1398 Statutes of Limitation. alleged until shortly before bringing the suit.^** Under Code Civ. Piroc. New York, § 382, limiting actions for relief on the ground of fraud to six years from the discovery of the fraud, as construed by the highest court of the State, the limitation begins to run against an action to open and resettle an account from the time the account was settled, and not from the time of the discovery of facta showing that such settlement was fraudulently made.^^ A cause of action to impeach a settlement on the ground of fraud is barred by the Ohio statute of limitations, unless an action is commenced thereon within four years after the discovery of the fraud.*^ In New Jersey, against a suit in equity to open accounts after a set- tlement, and for an accounting, on the ground of fraud on the part of defendant in procuring the settlement, limitations do not begin to run until the fraud is discovered, or imtil complainant is in a situation where by the exercise of reasonable diligence he can discover it."^ In South Carolina where a ward, after attaining his majority, settles with the guardian, the statute then begins to run against his suit to set aside the settlement ; he then having notice 60. Witt V. Day, 112 Iowa 110, 83 tions an action for relief brought by N". W. 797. a ward against a guardian. Black Where a ward sued the guardian, v. Black, 64 Kan. 689, 68 Pac. 663; within a year after the discovery of Stewart v. Robbins, 37 Tex. Civ. App. the fraud, for the value of land 188, 65 S. W. 899. And see Scoville fraudulently concealed from her by v. Brock, 79 Vt. 449, 65 Atl. 577, her guardian on a. settlement had wherein it was held that the statute with him after she arrived of age, did not begin to run until something and for the rents and profits there- occurred to raise a doubt in the mind from, the action was held not barred of the ward as to the guardian's con- by limitations. Short v. Mathis, 107 duct. Ga. 807. 61. Kirby v. Lake Shore & M. S. Under Ky. St. § 2519, an action to E. Co., 14 Fed. 261 (C. C, N. Y.). surcharge a guardian's settlement for 62. Railroad Co. v. Smith, 48 Ohio fraud or mistake must be brought, in St. 219, 31 N". E. 743, and the statute any event, within 10 years after the applies as well where the cause of ward arrived at age. Blake v. Wolfe, action is set up by ans'sver in an ac- 105 Ky. 380, 49 S. W. 19, 20 Ky. tion brought for the balance found Law Rep. 1212. due on the settlement. Circumstances of fraud and con- 63. Lincoln v. Judd, 49 N. J. Eq. eealment held not sufficient to re- (4 Dick.) 387, 24 Atl. 318. move from the operation of limita- Effect of Feaud. 1399 sufficient to put him on inquiry concerning tiie fraud on which he relies.^* § 276b (10). Cancellation of instruments. The limitation of six years prescribed by Act March 3, 1891, §', 8, for suits by the United States to annul patents to lands, is sub- ject to the equitable rule that, where the basis of the suit is fraud which has been concealed, the statute does not begin to run until the discovery of the fraud by the Interior Department,*^ and knowledge acquired incidentally by a special agent of the Land Office cannot be attributed to the Department.^^ The statute of limitations does not run in favor of one who receives a mere vol- untary conveyance for the purpose of enabling the grantor to de- fraud his creditor, unless it be shown that the creditor had knowl- edge of the fraud.®'' An action to set aside, as fraudulent, convey- ances of realty, where more than three years had elapsed after all the transactions had taken place and were known to plaintiffs, is barred by limitations, in California.*^ The Colorado statute, pro- viding that bills for relief on the ground of fraud shall be filed within three years after the discovery thereof, does not apply to an action to have the foreclosure of a trust deed set aside for f raud.*^ An action to confirm plaintiff's title under a conveyance to 64. Owens v. Watts, 24 S. 0. 76. 68. TuUy v. Tully, 137 Cal. 60, 69 65. United States v. Exploration Pac. 700. Co., 203 Fed. 387, 131 C. C. A. 491, By the express provisions of Code rev'g decree (C. C.) 190 Fed. 405; Civ. Proc, § 338, an action to re- United States V. American Smelting scind certain instruments on the & Refining Co., 203 Fed. 393, 121 C. ground of fraud ia not barred, though C. A. 497; Linn & Lane Timber Co. v. the instruments were executed more United States, 203 Fed. 394, 121 C. than three years before its commence- C. A. 498, amending decree on re- ment, where it is shown that the hearing, 196 Fed. 593, 116 C. 0. A. fraud relied on was discovered within 267. See also United States v. a, year of the filing of the complaint. Southern Pac. Co., 225 Fed. 197. Richards v. Farmers' & Mechanics' 66. United States v. Lee, Wilson Bank, 7 Cal. App. 387, 94 Pac. 393. & Co., 314 Fed. 630 (D. C.) ; Act 69. Barlow v. Hitzler, 40 Colo. 109, March 3, 1891, c. 561, § 8, 26 Stat. 90 Pac. 90, under Mills' Ann. St. § 1099 (U. S. Comp. St. 1901, p. 1531). 2911. 67. Farrar y. Bernheim, 75 Fed. 136, 21 C. C. A. 264. 1400 Statutes of Limitation. her and to set aside subsequent fraudulent conveyances is solely cognizable in equity, and the statute of limitations does not begin to run, under Iowa Code, §§ 3447, 3448, until the fraud is ac- tually discovered.'" In an action by a creditor for relief on the ground of fraud of his debtor, it is necessary to establish the ignor- ance of the fraud until the time vs^ithin the period limited for the commencement of an action to remove the bar of limitations.''^ Where a father conveyed land to his son v^ithout any change of possession, and the son did not render the land for taxation, and there was nothing in the way in which the property was held to put a creditor of the father, who lived in an adjoining county, on notice, limitations did not bar her rights ; she having no actual no- tice of the conveyance until just prior to suit brought.''^ Under the six-year limitation prescribed by New York Code Civ. Proc, § 382, an action brought May 1, 1909, by a trustee in bankruptcy to avoid an assignment made September 29, 1900, as being fraudulent as to creditors, was barred where plaintiff was chargeable with knowledge of the assignment, and the consideration for it as early as December 17, 1900, and where the assignor was adjudged a bankrupt October 15, 1900." 70. Mullen v. Calla'nan (Iowa), 73. Beattys v. Straiton, 143 App. 149 N. W. 516. Div. 369, 126 N. Y. Supp. 848. 71. Fuller v. Horner, 69 Kan. 467, Under Code Civ. Proc., § 382, subd. 77 Pac. 88. 5, providing that an action to pro- 72. Cliinn v. Curtis, 24 Ky. Law cure a judgment on the ^ound of Eep. 1563, 71 S. W. 923. fraud must be brought within six The payment of annual premiums years after the discovery of the fraud, would not suspend the running of the an action to set aside an assignment statute of limitations against an ac- of a trust fund to the trustee for tion against an insurance company fraud is not barred until six years for rescission of a contract of insur- after discovery of the fraud. Ander- ance on the ground of misrepresenta- son v. Fry, 116 App. Div. 740, 102 tions as to what insured would be en- N. Y. Supp. 112. An action by a titled to receive under the policy, the trustee in bankruptcy to set aside a. misrepresentations, and not the pay- fraudulent transfer of property made ment or receipt of premiums, being by the bankrupt before the institu- the fraud complained of. Schoolfield tion of proceedings in bankruptcy V. Provident Savings Life Assur. So- may be brought at any time within eiety, 158 Ky. 687, 166 S. W. 207. Effect of Eraud. 1401 § 276b(ll). Diligence in discovering fraud. The rule that the statute of limitations does not begin to run, or that a party cannot be charged with laches, until the discovery of the fraud, does not mean that one can shut his eyes to obvious facts.''^ A mere allegation that plaintiff " had no knowledge or notice " of an alleged fraudulent conversion of property, on which the action is based, until a later date, is insufficient to avoid the bar of limitations ; no facts showing either concealment by defend- ant or diligence on the part of plaintiff being alleged.'^ While a cause of action to cancel a trust deed for fraud is deemed not to have accrued until the discovery of the facts constituting the fraud, four years frdln the discovery of the fraud. Nye v. Hart, 22 Ohio Civ. Ct. Eep. 427, 12 0. C. D. 419. For the rule maintained in other jurisdictions as to application of statutes of limitations to action for the cancellation of instruments on the ground of fraud, see: V. S.— Eddy v. Eddy, 168 Fed. 590, 93 C. C. A. 586 (C. C. A., Mich.). La. — Kinder v. Seharif, 129 La. 218, 55 So. 769, action by bankrupt's trustee to set aside a fraudulent con- veyance of the bankrupt. Minn. — Brasie v. Minneapolis Brewing Co., 87 Minn. 456, 92 N. W. 340, 67 L. E. A. 865, 94 Am. St. Eep. 709. 'Neh. — ^Westervelt v. Filter, 2 Ntb. (Unoff.) 731, 89 N. W. 994. Ohio. — Boies v. Johnson, 25 Ohio Cir. Ct. Eep. 331. 8. C. — Tucker v. Weathersbee, 98 S. C. 402, 82 S. E. 638. Tenn. — Green v. Huggins (Ch. App.), 52 S. W. 675. Tex. — Stern v. Marx, 23 Tex. Civ. App. 439, 56 S. W. 93. Wash. — Fidelity Nat. Bank v. Adams, 88 Wash. 75, 80 Pac. 284. 74. Shelby County v. Bragg, 135 Mo. 291, 36 S. W. 600; Goggins v. Eisley, 13 Pa. Super. Ct. 316. 75. School Dist. of City of Sedalia, Mo., V. Deweese, 93 Fed. 602 (C. C, Mo.). One must exercise due dili- gence to discover a fraud complained of, and where be does not do so limi- tations run against his cause of ac- tion therefor; one who wrongs an- other by fraud, and who then fur- ther wrongs him by a later fraud calculated to disarm the former of suspicion and prevent an investiga- tion, may not charge the former with negligence or laches in not making an investigation and discovering the fraud. McLain v. Parker, 229 Mo. 68, 129 S. W. 500. There must have been some act done by defendant to lull plaintiflF into nonaction or pre- vent him from discovering the fraud, and concealment of the facts by mere silence is not enough. St:ite ex rel. O'Malley V. Musick, 145 Mo. App. 33, 130 S. W. 398, where plaintiff could have discovered the fraud at any time by examining the public record of an option of purchase. Scott v. Boswell, 136 Mo. App. 601, lis S. W. 521. 14:02 Statutes of Limitation. it must also appear that the discovery could not sooner have been made by the exercise of reasonable diligence; plaintiff being pre- sumed to have known all that reasonable diligence v?ould have dis- closed.''^ Fraud is deemed to be discovered, within the statute of limitations, when, in the exercise of reasonable diligence, it could have been discovered ; and where a creditor knew of the execution of a deed, which he supposed named his debtor as grantee, reason- able diligencp would have required an examination of the record, which would have disclosed the fact that it was executed to the debtor's wife.''' Under Kentucky St., § 2515, in an action for re- lief on the ground of fraud, plaintiff must establish a state of facts showing that he could not, with ordinary or reasonable dili- gence, have discovered the fraud within the statutory period of limitation before the action was instituted.''^ In Minnesota, it is incumbent on the plaintiff to allege and prove not merely that he did not discover the facts constituting the fraud within the statu- tory period of limitation, but also that his failure to discover them sooner was consistent with reasonable diligence on his part, and not the result of his own negligence.''* In Georgia, ignorance of fraud, which by use of due diligence might have been discovered, will not bar the running of the statute of limitations.'" In JSTew York, knowledge of the facts constituting a fraud, within the meaning of Code Civ. Proc, § 382, subd. 5, will be imputed to the plaintiff, where the circumstances are such as to suggest to a person of ordi- 76. Shiels v. Nathan, IS Cal. App. Law Rep. 2011, 73 S. W. 1112; '604, 108 Pac. 34, under Cal. Code Civ. Clarke v. Seay, 21 Ky. Law Kep. Proc, § 338, subd. 4 ; LoeflSer v. 394, 51 S. W. 589 ; Zackay's Adm'r v. Wright, 13 Cal. App. 224, 109 Pac. Hicks, 7 Ky. Law Rep. (abstract) 2.69. 755. 77. Donaldson v. Jacobitz, 67 Kan. 79. Ihixbury v. Boice, 70 Minn. 244, 72 Pac. 846; Duphorne v. Moore, 113, 72 N. W. 838; First Nat. Bank 83 Kan. 159, 107 Pac. 791. v. Strait, 71 Minn. 69, 73 N. W. 645. 78. Exchange Bank v. Trimble, 80. Freeman v. Craver, 56 Ga. 161; 108 Ky. 230, 21 Ky. Law Rep. 1681, Sutton v. Dye, 60 Ga. 449; Ed- 56 S. W. 156 ; Nave v. Price, 108 Ky. mond's Ex'rs v. Goodwyn, 28 Ga. 38 ; 105, 21 Ky. Law Rep. 1538, 55 S. W. Little v. Reynolds, 101 Ga. 594, 28 883; Wilhoit v. Musselman, 24 Ky. S. E. 919. Effect of Fraud. 14:0'3 nary intelligence the probability that he has been defrauded, and he omits to make inquiry which would have developed the truth.*^ In Texas, the plaintiff is not entitled to the benefit of the exception in the statute suspending the running of limitations till discovery of the fraud, where he could have discovered it by reasonable dili- gence.^ In Alabama, in the absence of a fiduciary relation, im- posing a duty to disclose, there must be some act calculated to mis- lead or to lull inquiry before the exception to the statute of limita- tions can be invoked ; and one suing to set aside a fraudulent con- veyance to avoid the statute could not rely upon the fact that he did not discover the fraud until just before suit.*' A client em- ploying an attorney to sue upon a promissory note was held not guilty of laches, in Texas, in not discovering the attorney's fraud in not bringing such action until after such attorney's death, nearly four years after the action had become barred by limitations, where the attorney had represented to him that suit had been brought and judgment obtained, and that he was taking steps to collect the judgment.** § 276b (12). What constitutes discovery of fraud. The word " discovery " as used in California Code Civ. Proe., § 338, subd. 4, providing that a cause of action for relief on the 81. Higwins v. Grouse, 147 N. Y. A3 to facts sufficient to show rea- 411, 42 N. E. 6, rev'g judg. 71 Hun sonable diligence in discovering 615, 24 N. Y. Supp. 1080; 63 Hun fraud or the reverse, see the follow- 134, 17 N. Y. Supp. 696. ing cases: 82. Boren v. Boren, 38 Tex. Civ. U. S. — ^Martin v. Smith, 1 Dill, 85 App. 13«, 85 S. W. 48; Missouri, K. Gal. — Bills v Silver King Min. Co., & T. Ey. Co. V. Smith, 2« Tex. Civ. 106 Cal. 9, 39 Pac. 43; Burling v. App. 565, 68 S. W. 543; Moore v. Newlands (Cal.), 39 Pac. 49; Simp- Brown, 27 Tex. Civ. App. 208, 64 S. son v. Dalziel, 135 Cal. 599, 67 Pac. W. 946; Vodrie v. Tynan (Tex. Civ. 1080. App.), 57 S. W. 680; Cleveland v. Miss.— Murphy v. Reedy (Miss.). Carr (Tex. Civ. App.), 40 S. W. 406. 3 So. 167; Matthews v. Southeimer, 83. Van Ingen v. Duffin, 158 Ala. 39 Miss. 174. 318 48 So. 507. - Ohio. — Bohm v. Cunningham, 7 84. Shuttleworth v. McGee (Tex. Ohio Dec. 382, 2 Wkly. Law Bui. 274. Civ. App.), 105 S. W. 823. ye*.— Alston v. Richardson, 51 Tex. 1404 Statutes of Limitation. ground of fraud, is not deemed to have accrued until discovery of the facts constituting such fraud, is not equivalent to " knowledge " and plaintiff must show that the acts of fraud were committed un- der such circumstances that he would not be presumed to have knowledge of them.*^ Mills' Ann. St. Colorado, § 2911, requiring bills for relief on the ground of fraud to be filed within three years after discovery of the fraud, bars such suits three years after the discovery of facts which would awaken a person of ordinary prudence to an inquiry, which, if pursued with reasonable dili- gence, would lead to a discovery of th,e fraud.*^ In Nebraska, an action for fraud must be commenced within four years after dis- covery of the facts constituting fraud, or facts sufficient to put an ordinary person on inquiry.*^ Under the New York statute of limitations (Code Civ. Proc, § 382, subd. 5), providing that ac- tions for judgments other than for money, on the ground of fraud, must be commenced in six years from the discovery of the "facts" constituting the fraud, the limitations against a right of action to vacate a release of a general guardian procured by fraudulent representations begin to run from the moment they are made, where the party executing the release does not believe them, and is not deceived thereby, and not from the time of the discovery of evidence to establish the fraud.^^ Silence by the promoters of a corporation, acting as its agents, as to the price paid by them for land afterwards sold to the corporation at an advanced price is fraudulent concealment, and will be deemed to avoid the statute 1; Kuhlman v. Baker, 50 Tex. 630; v. Smith, 79 Fed. 709, 35 C. C. A. Stanford v. Finks (Tex. Civ. App.), 154 (C. C. A., Colo.). See also. Rose 99 S. W. 449; Clement v. Clement v. Dunklee, 12 Colo. App. 403, 56 Pao. (Tex. Civ. App.), 99 S. W. 138. 342. 85. Davis v. Hibernia Savings & 87. Coad v. Dorsey, 96 Neb. 613', Loan Society, 21 Cal. App. 444, 132 148 N. W. 155; Raymond v. Sohri- Pae. 462. And see Smith v. Martin, ever, 63 Neb. 719, 89 N. W. 308. See 135 Cal. 247, 67 Pae. 779; Archer v. also. State Bank of Pender v. Frey, Freem-n, 124 Cal. 528, 57 Pae. 474; 3 Neb. (Uuof.) 83, 91 N. W. 339. Nicholson v. Tarpey, 124 Cal. 442, 88. Stevens v. Reed, 60 N. Y. Supp. 57 Pae. 457. 726. 86. Redd v. Brun, 157 Fed. 190, 84 An action to recover money only ia C. C. A. 638 (C. C. A., Colo.); Swift not within said section, which ap- Effect of Fraud. 1405 of limitations, within Iowa Code, § 3448.^' Where a party de- frauded had the means at hand to readily discover the fraud, and such means of information would have been used by a person of ordinary care in the transaction of his own business, he will be held, as a matter of law, to have had due notice of everything which a proper use of such means would have disclosed.^* plies only to equitable causes for other than the recovery of money only. East River Sav. Inst. v. Bar- rett, 23 Misc. Eep. 423, 52 N. Y. Supp. 81. Where a grandson of the grantor learned in 1893 of defendant's fraud in procuring the deed, under Code Civ. Proc, § 382, subd. 5, his time to sue for cancellation was, despite section 896, limited to six years from that date, although he was then only 20 years old. Gabriel v. Gabriel, 160 App. Div. 901, 144 N. Y. Supp. 1117, aflf'g judg. 79 Misc. Eep. 346, 139 N. Y. Supp. 778. Under Code Civ. Proc, § 1743, subds. 4 and 5, and section 1753, an action to annul a marriage for phy- sical incapacity cannot be brought within section 382, subd. 5, relative to actions on the ground of fraud, within six years after the discovery of the fraud, by alleging fraudulent representations. Deiteh v. Deitch, 163 App. Div. 25, 146 N. Y. Supp. 1019, leave to appeal granted 147 N. y. Supp. 1106. The ten years' limitations will not commence to run against an equitable action against the pledgees for an ac- counting as to a sale of the pledged property, without foreclosure of the lien or notice, until the pledgor learns of such sale. Beugger v. Ash- ley, 161 App. Div. 576, 146 N. Y. Supp. 910. 89. Chaffee v. Berkley, 141 Iowa 344, 118 N". W. 267. See also, E. B. Piekenbrock & Sons v. Knoer, 136 Iowa 534, 114 N. W. 200, as to what ■ facts constitute discovery of fraud. 90. Boren v. Boren, 38 Tex. Civ. App. 139, 85 S. W. 48. See also, as to what constitutes discovery of fraud, within the stat- utes of the several States: Kan. — Eaton v. Elliott, 9 Kan. App. 882, 57 Pac. 343; Donaldson v. Jaco- bitz, 67 Kan. 244, 72 Pac. 846. Ky. — Johnson v. Equitable Life Assur. Society of United States, 137 Ky. 437, 125 S. W. 1074; Brown v. Spradlin, 136 Ky. 703, 125 S. W. 150; Meehan v. Peck, 28 Ky. Law Eep. 446, 89 S. W. 491. j¥d.— Shuck V. Bramble, 122 Md. 411, 89 Atl. 719. Mich. — Comfort v. Eobinson, 155 Mich. 143, 15 Detroit Leg. N. 951, 113 N. W. 943. il/o.— Callan v. Callan, 175 Mo. 346, 74 S. W. 965; Loomis v. Mis- souri Pac. Ry. Co., 165 Mo. 469, 65 S. W. 962. Pa. — Braddock Trust Co. v. Guar- antee Trust & Safe-Deposit Co., 180 Pa. 529, 37 Atl. 101. Wash. — Griffith v. Seattle Consol. St. Ry. Co., 36 Wash. 627, 79 Pac. 314; Wickham v. Sprague, 18 Wash. 466, 51 Pac. 1055; Uhlbright v. Mul- eahy, 78 Wash. 9, 138 Pac. 314. 1406 Statutes of Limitation. § 276b(13). Constructive notice of fraud. The phrase " until discovery of the fraud," as used in the Kansas and Oklahoma statutes of limitations, does not mean actual notice, as constructive notice is sufficient; and, where the means of dis- covery lie in public records required by law to be kept, they are sufficient to set the statute in motion.'^ The existence of public records of deeds, access to which is easy, and which would dis- close that a trustee's representation that he had sold trust prop- erty worth $2,200 so as to net less than $600 was fraudulent, is such notice to the cestui que trust as to start limitations.'^ The re- cording of a fraudulent deed is not of itself sufficient to charge all parties with knowledge of the fraud ; but, when accompanied with circumstances sufficient to put a person on inquiry, which if pursued would lead to the discovery of the fraud, limitations begin to run from the recording of the deed, but not otherwise.^' In Iowa, the recording of a deed alleged to be fraudulent gives such notice of its character as will bar an action to set it aside unless the action •is commenced within five years.'* But, in Kentucky, the con- 91. Black V. Black, 64 Kan. 689, 68 the creditor had knowledge of the Pac. 6ea; Board of Com'rs of Gar- transfer, although the creditor did field County v. Eenahaw, 23 Old. 56, not have such knowledge till within 99 Pac. 638. Plaintiff residing in the statutory period of limitation; New York was not charged with In re Dunavant, 96 Fed. 542 (D. C, notice of fraud practiced on her by N. C. ) , wherein the knowledge of the her attorney in Nebraska, so as to attorney was held imputable to his start the statute of limitations.be- client, and the debtor could plead the cause the records of the Nebraska statute. courts would show fraud, where the 93. Jones v. Danforth, 71 Neb. 722, attorney was acting for her in the 99 N. W. 495; Forsyth v. Easterday, matter concerning which the record 63 Neb. 887, 89 N. W. 407. See also, was made, and she had no means of State Bank of Pender v. Frey, 3 Neb. ascertaining what the records would (Unof.) 83, 91 N. W. 239; Coulson show, except from her attorney, v. G-altsman, 1 Neb. (Unof.) 502, 96 Mohr V. Sands (Okl.), 133 Pac. 238. N. W. 349. 92. Irwin v. Holbrook, 32 Wash. 94. Fuller & Johnson v. McMahon 349, 73 Pac. 360. See also, Deering (Iowa), 94 N. W. 205; Clark v. V. Holcomb, 26 Wash. 588, 67 Pac. Van Loon, 108 Iowa 250, 79 N. W. 240, applying the rule to an action 88, 75 Am. St. Rep. 219; Brooks v. to set aside a transfer made in fraud Jones, 114 Iowa 385, 82 N. W. 434, of creditors, where the attorney of modified on rehearing 86 N. W. 30O. Effect of Feattd. 1407 structive notice from the mere recording of a fraudulent deed is insuificient to set the statute of limitations, as affecting an action to set it aside, in motion f^ and in Ohio, a cause of action to set aside a fraudulent deed does not accrue when it is filed for record, unless plaintiff then received actual notice of its execution and of the circumstances which render it fraudulent.'^ In Pennsylvania, the record of a deed is not notice to the grantor of the fraudulent in- clusion therein of land which he continues to occupy, so as to set the statute of limitations running against him.'' In Michigan, the fact that conveyances of land were matters of public record did not put a creditor of the grantor on notice that there was no real consideration.'^ Under the !N^ew York recording act, a recorded deed is not con- structive notice to an owner in possession, who does not claim title through any party to the deed." Under the Colorado statute, a creditor is not chargeable with constructive notice of his debtor's < fraud in making a conveyance by the recording of the conveyance 95. Chinn v. Curtis, 24 Ky. Law 380, 20 Ky. Law Rep. 1313, 49 S. W. Eep. 1563, 71 S. W. 923. 19. But an action brought by creditors 96. Stivens v. Summers, 63 Ohio to set aside a deed as fraudulent, St. 431, 67 N. B. 884. more than five years after it was re- 97. Davis v. Monroe, 187 Pa. 312, corded, is barred by limitation, it 41 Atl. 44, 67 Am. St. Rep. 581. appearing that plaintiffs, w&o re- 98. Lant v. Stanley, 75 Fed. 627, sided in the town where the deed was 21 C. C. A. 457 (C. C. A., Mich.), recorded, and who were from time to 99. Seely v. Seely, 150 N. Y. Supp. time becoming the sureties of the 66. grantor, might, by reasonable dili- An equitable action seeking a gence, have discovered the deed at money judgment, not as damages, any time after it was recorded, but as a substitute for land upon Poynter v. Mallory, 30 Ky. Law Eep. which plaintiff might have impressed 384, 45 S. W. 1042. And see Mc- a trust, had not defendant sold it to Gehee v. Cox, 22 Ky. Law Rep. 619, a bona fide purchaser, is within Code 58 S. W. 533; Cotton V. Brown, 3 Ky. Civ. Proc, § 382, subd. 5, as aii ac- Law Eep. 679. An action to set aside tion to procure a judgment for money a deed as fraudulent cannot be on the ground of fraud, so that the brought after the lapse of 10 years statute did not begin to run until from the time the deed was made and plaintiff's discovery of the fraud. Id. recorded. Blake v. Wolfe, 105 Ky. 1408 Statutes of Limitation. ^ showing tliat it was voluntary.^ In Texas, where an insolvent debtor conveys lands to a relative for an insufficient consideration, and the deed is recorded, and the grantee takes possession there- under, such facts constitute sufficient information to the grantor's creditors to put them on inquiry as to his intent to defraud them ; and hence the statute of limitations begins to run against the creditors' action to set aside the conveyance from the date of the record of the deed.^ In Virginia, where plaintiff seeks to avoid a conveyance made by his creditor on the ground that it was volun- tary, the statute of limitations runs v as to such action from the date of recording the deed, and not from plaintiff's knowledge that it was without consideration, unless his ignorance of such fact pro- ceeded from the fraud of the grantee.' § 276c (1). Ignorance of cause of action — In general. Code Civ. Proc. JST. Y., § 410, as construed by the courts of the State, operates to shield clients from the effect of the six-years statute of limitations in actions growing out of the receipt and detention of money by attorneys, when the client does not have knowledge of the facts which entitle him to dispense with a de- mand, and to set the statute in operation only from the time ho acquires such knowledge.* Mere ignorance of the existence of a cause of action does not prevent the running of the statute of limi- 1. Rose V. Dunklee, la Colo. App. See, as to rule in other jurisdic- 403, 56 Pac. 343. tions: 2. Vodrie v. Tynan (Tex. Civ. Miss. — ^North American Trust Co. App.), 57 S. W. 680. V. Lanier, 78 Miss. 418, 28 So. 804, Where defendant sold land to 84 Am. St. Rep. 635. plaintiff, and aftenvards conveyed Mo. — Hudson v. Cahoon, 193 Mb. the same land to another, who re- 547, 91 S. W. 73. corded his deed before plaintiff, the 3. Vashon v. Barrett, 99 Va. 344, statute of limitation runs against 3 Va. Sup. Ct. Rep. 337, 38 S. E. 200. plaintiff's right to recovery, from the And see McCue's Trustees v. Harris, time he has actual notice of such sec- 86 Va. 687, 10 S. E. 981. ond conveyance, and not from the 4. Birckhead v. De Forest, 120 Fed. date it was recorded. Mitchell v. 645, 57 C. C. A. 107 (N. Y.). Simons (Tex. Civ. App.), 53 S. W. Where an undivided interest in 76. land is conveyed under an agreement Igwobance of Cause of AcTioif. 1409 tations xmless there has been fraudulent concealment on the part that the purchaser will recover the vendor's interest from persons claim- ing adversely, and th« purchaser wholly fails to perform the agree- ment, and allows the vendor's inter- est to be sacrificed, an action by the vendor against the purchaser for an accounting is within Code Civ. Proc, § 410, subd. 1. Cornwell v. Clement, 10 App. Div. 44r6, 42 N. Y. Supp. 395. Where a, grantee is in possession claiming to own the land by virtue of his deed, limitations will not run against his right to seek a reforma- tion of the deed to make his title effective, until he knows of the flaw in his title deed, or of an adverse claim to the land. Perrior v. Peck, 39 App. Div. 390, 57 N. Y. Supp. 377, judg. aff'd 167 N. Y. 582, 60 N. E. 1118. A declaration of an express trust made by a lessee in favor of the chil- dren of a former lessee who had been evicted for nonpayment of rent, and recorded in the oflBce of the register of the county, is, as affecting the running of the statute of limitations against enforcement of the trust, «onstructive notice of its own exist- ence to the cestuis que triist, and to the widow of the declarant who con- tinued to occupy the premises after her husband's death, under the term granted to her husband and renewal terms, secured by her in her own name in accordance with the provi- sion of the lease to her husband. Pinnegan v. MoGoffog, 203 N. Y. 342, 9« N. E. 1015, aff'g judg. 139 App. Div. 899, 133 N". Y. Supp. 539. The statute does not run against 89 the right of remaindermen in trust property to sue for the- recovery of part of the property converted by the life beneficiary until they have ac- tual knowledge of the facts upon which their right depends. Putnam V. Lincoln Safe Deposit Co., 191 N. Y. 166, 83 N. E. 789, rev'g judg. 118 App. Div. 463, 104 N. Y. Supp. 4, which modifies 49 Misc. Rep. 578, 100 N. Y. Supp. 101. Where the title to stock pledged to secure a disputed debt was not di- vested, and the owner's right to pos- session depended on his satisfaction of the debt, his right to sue to re- deem the stock in the hands of a transferee of the pledgee accrued on his obtaining knowledge of the transfer. Treadwell v. Clark, 190 N. Y. 51, 83 N. E. 505, aff'g judg. 114 App. Div. 493, 100 N. Y. Supp. 1. Where imported merchandise is sold by the importer " in bond, actual duty" and all refunds of duties be- longing to the purchaser, the inipor- ter becomes his agent for their col- lection; and, since the purchaser cannot recover them from his agent without demand, limitation does not begin to run till he has knowledge that they have been collected by the importer. Schmid v. Dohan, 167 Fed. 804 (C. C. A., N. Y.). Limitations (Code Civ. Proc, § 383) commence to run against an ac- tion for the conversion of corporate ■bonds from the time the bonds were converted, and not from the dis- covery of the person who converted them."" Lightfoot v. Davis, 133 App. Div. 452, 116 N. Y. Supp. 904. 1410 Statutes of Limitatioit. of those invoking the benefit of the statute.^ Under Ky. St., § 2519 (Eussel's St., § 229), it was no answer to a plea of limita- tions, in a suit by a ward for an accounting against the heirs of her deceased guardian more than ten years after the right to such accounting accrued, that she did not know, and could not by rea- sonable diligence have discovered, sooner^ than she did, that her guardian was indebted to her.® The mere ignorance of a plain- tiff of his cause of action will not prevent the running of the statute, but there must have been some concealment of the facta which ordinary diligence could not discover.'' Ignorance of right does not prevent the running of limitations.' The rule that courts of equity ordinarily apply rules of limitation which will bar remedies at law is not applicable where the person seeking relief 5. Hibben v. Malone, 85 Ark. 584, 109 S. W. 1008; Bridge v. Connecti- cut Mut. Life Ins. Co., 167 Cal. 774, 141 Pae. 375; Davis v. Boyett, 130 Ga. 649, 48 S. E. 185, 66 L. R. A. 258, 102 Am. St. Eep. 118. See also, Ijester & Haltom v. Bemis Lumber Co., 71 Ark. 379, 74 S. W. 518; Hi- 'bernia Savings & Loan Society v. Farnham, 153 Cal. 578, 96 Pac. 9. Mere vpant of knowledge of execu- tors' sale did not excuse plaintiff's delay of 20 years after reaeliing her majority to bring an action to set aside the sale, nor prevent action be- ing barred by Code Civ. Proc, §§ 1573, 1574. Bagley v. City & County of San Francisco, 19 Cal. App. 255, 125 Pae. 931; Euland v. All Persons, 10 Cal. App. 275, 125 Pac. 939. A father's cause of act' on for the seduction of his daughter arises when the act of seduction is com- plete, and not when he discovers that his .daughter has been seduced. Davis V. Boyett, supra. 6. Mouser v. Nunn, 142 Ky. 656, 134 S. W. 1148. And see Metropoli- tan Life Ins. Co. v. Trende, 21 Ky. Law Rep. 909, 53 S. W. 412; Coving- ton V. Morton, 6 Ky. Law Rep. (ab- stract) 219, 352; Willis V. Brass- field, 8 Ky. Law Rep. (abstract) 353. 7. Clapp V. Leavens, 164 Fed. 318 (C. C. A., Mo.). See McMurray v. McMurray, 180 Mo. 526, 79 S. W. 701; Dye v. Bowl- ing, 82 Mo. App. 587; Arnold v. Scott, 2 Mo. 13, 22 Am. Dec. 433. Limitations begin to run against, an action on a trust arising, by oper- ation of law, from the discovery by the cestui que trust of the facts from which it arises. Graham v. Wilson, 168 Mo. App. 185, 153 S. W. 83. 8. Garrett v. Olford, 152 Iowa 265, 132 N. W. 379. And see Mather v. Rogers, 99 Iowa 292, 68 N. W. 700, wherein it was held that the complaint did not show such diligence in discovering fraud as would relieve plaintiff from the bar of the statute; The Telegraph v. Loetscher, 127 Iowa 383, 101 N. W. 773, wherein the evidence was held sufficient to excuse plaintiff's failure to discover the cause of action. Ignoeanck of Cause of Action. 1411 has no knowledge of the necessity of taking action to protect his interest, and is not chargeable with negligence, and the rights of third parties have not been prejudiced.' In the absence of fraud, neither ignorance of the right to sue nor mere silence of a person liable prevents the running of limitations.-^" Where ignorance of facts was relied on to arrest the running of limitations, a party is chargeable with knowledge of the facts, where the circumstances were such as should have induced inquiry, and the means of ascer- taining the truth were readily available on such inquiry, but he neglects to make it.-^^ That a person entitled to an action has no knowledge of his right to sue, or of the facts out of which his right arises, does not postpone the period of limitation.-^^ Limitations begin to run on a cause of action against an abstractor from the time the abstract is furnished rather than from discovery of the errors or omissions. ■'' Where the owner of land has no knowledge that coal is being taken from under his land by a trespasser, the statute of limitations does not begin to run against him until the time of actual discovery of the trespass, or the time when dis- covery was reasonably possible.^* In a suit by an heir to set aside a deed of his ancestor, the averments as to discovery of the cause of action, in order to avail the heir as against limitations, must state a case for relief on the ground of fraud.-'^ 9. Nichoh V. Nichols, 79 Conn. G44, the boird. State v. Jackson, 52 Ind. 66 Atl. 161. App. 254, 100 N. E. 479. 10. Coe V. Sloan, 16 Idaho 49, 100 13. E. T. Arnold & Co. v. Earner, 91 Pac. 354. S-e Stoltz v. Scott, 23 Kan. 768, 139 Pae. 404. Idaho 104, 129 Pac. 340. 14. Gotshall v. J. Langdon & Co., 11. Ater V. Smith, 245 111. 57, 91 16 Pa. Super. Ct. 158; Trustees of N. E. 776. See also, Cunningham v. Proprietors of Kingston v. Lehigh Cunningham's Estate,. 220 111. 45, 77 Valley Coal Co., 241 I'a. 469, 88 Atl. N. E. 95. 763. See, as to otiicr actions: 12. Craven v. Craven, 181 Ind. Gu:irantee Trust & Safe Deposit Co. 553, 103 K E. 333. v. Farmers' & Mechanics' Nat. Bank, Whether a board of commissioners 202 Pa. 94, 51 Atl, 765; Mifflin of a county had Iinowledge of a County Nat. Bank v. Fourth St. Nat. cause of action so that limitations Bank, 199 Pa. 459, 49 Atl. 213. .would run was not affected by charge 15. Thomas v. McKay, 143 Wis. in the personnel of the members of 634, 128 N. W. 59. 14:12 Statutes of Limitation. § 276c (2). Want of diligence by person entitled to sue. The running of limitations against a suit involving title to land held adversely to complainants was not prevented by complainants' ignorance of their title to the land until after the expiration of the In construing St. 1S98, § 984, re- quiring actions on official bonds to be brought within three years after a municipality acquires knowledge of default, mere definitions of particular words used in different connections are of little value, but the intent of the particular legislation must be gathered; knowledge of a sentient person being quite different from that of a corporation; a county is not charged with knowledge of a treas- urer's defalcation where it could not be discovered by the county board in their audit of his account. Oconto County V. McAllister, 155 Wis. 2.86, 143 N. W. 702; Oconto County v. Lindgren, 155 Wis. 303, 143 N. W. 707. As to effect of ignorance of cause of action on limitations in other jur- isdictions, see: Ala.'— Bromberg v. Sands, 127 Ala. 411, 30 So. 510, action against an at- torney for money collected. Del. — Lieberman v. First Nat. Bank, 8 Del. Ch. 329, 40 Atl. 882, ac- tion upon a bond given by an officer to a corporation. La. — ^Hamilton v. Moore, 136 La. 631, 67 So. 523; Breaux v. Albert Hanson Lumber Co., 125 La. 421, 51 So. 444, action for unlawful cutting of timber; Woodward- Wight & Co. v. Engel Land & Lumber Co., 123 La. 1093, 49 So. 719, action to avoid con- tract and recover price paid; Chris- tie & Lowe V. Pennsylvania Iron Works, 128 La. '208, 54 So. 742; Cox V. Von Ahlefeldt, 105 La. 543, 30 So. 175; Boagni v. Wartelle, 50 La. Ann. 128, 23 So. 206. Mich. — .Bates v. Boyce's Estate, 135. Mich. 540, 98 N. W. 259, 10 Detroit Leg. N. 868, 106 Am. St. Rep. 402, action by stockholder for conversion of his interest in the corporation. Minn. — ^Evcrott v. O'Leary, SO Minn. 154, 95 N. W. 901, in an action for breach of contract to insure, ignorance of violation of the contract will not prevent the running of the statute. Neh. — Webster v. Bates Mach. Co., 64 Neb. 306, 89 N. W. 789. N. J. — James v. AUer, 66 N. J. Eq. 52, 57 Atl. 476, rev'd 68 N. J. Eq. 666, 62 Atl. 427, 111 Am. St. Eep. 654, action by a father to set aside an unreasonable settlement of his property on his children. N. B.~Bjowell V. Sanborn, 76 N. H. 520, 85 Atl. 665. Tenn. — Daniels v. Pickett (Ch. App.), 59 S. W. 148; Harris v. Thomas (Ch. App.), 52 S. W. 706. Tex. — ^Yeaman v. Galveston City Co. (Tex.), 167 S. W. 710; First State Bank of Seminole v. Shannon (Civ. App.), 159 S. W. 396, action for the proceeds of a draft sent for collection; Dashner v. Wallace, 29 Tex. Civ. App. 151, 68 S. W. 307, suit to enjoin a judgment; Gerfers V. Mecke, 28 Tex. Civ. App. 269, 67 S. W. 144; Meyer Bros. Drug Co. v. Fry (Civ. App.), 48 S. W. 752; Moore V. Waco Bldg. Ass'n, 19 Tex. Civ. App. 68, 45 S. W. 974; Rice v. Ward, 92 Tex. 704, 51 S. W. 844. Ignorance ob Cause of Actioit. i4ia limitation period, where complainants were, during that period, adults, and there was no concealment, deceit, or misrepresentation as to their rights by any party in possession, and none of the parties in possession occupied any fiduciary relation toward complain- ants.-^^ A party cannot defer the running of limitations by his own negligence.-^'' But, ordinarily, neglect or laches of public ofBcials is not chargeable to the public, as barring a suit by lapse of time, where no intervening right of a third person is to be affected.-^^ Under the Texas statute, an action to enjoin the execution of a judgment is barred at the expiration of four years after the ex- istence of the judgment is discovered, or by reasonable diligence might have been discovered.^^ Utah.— Snow v. Rich, 23 Utah 123, 61 Pae. 336. Va. — ^Bickle v. Chrisman's Adm'x, 76 Va. 678; Virginia Hot Springs Co. V. McCray, 10« Va. 461, 56 S. E. 1216, action for the pollution of a stream by sewage. Wash. — ^Northwestern Lumlber Co. V. City of Aberdeen, 44 Wash. 261, 87 Pac. 260, 35 Wash. 636, 77 Pae. 1063; Christiansen v. King County, 203 Fed. 894, aff'g judg. 196 Fed. 791 (C. C. A., Wash.), an action of eject- ment; Chilberg v. Siebenbaum, 41 Wash. '663, 84 Pac. 598, suit to en- force unpaid stock subscriptions; Gove V. City of Tacoma, 34 Wash. 434, 76 Pac. 73. 16. Steele v. Steele, 220 111. 318, 77 N. E. 233; Waterman Hall v. Waterman, 230 HI. 569, 77 N. E. 143, 4L. R. A. (N. S.) 776. 17. Ryan v. Woodin, 9 Idaho 535, 75 Pac. 361. Where a city ordinance, imposing a license tax only on milk venders by means of wagons and vehicles, was unconstitutional on its face, plaintiff was not excused from refusing to com- ply therewith, and from testing its validity, by the fact that he was ignorant of the law, and his legal rights, but was bound to exercise or- dinary diligence to discover the same, and hence he was barred by the iive-year statute of limitations from recovering license fees paid for a longer period, on the ordinance be- ing subsequently declared unconsti- tutional. City of Louisville v. Weikel, 137 Ky. 784, 137 S. W. 147; 138 S. W. 587. 18. Alexander v. Owen County, 135 Ky. 430, 124 S. W. 386. See Schroer V. Central Kentucky Asylum for In- sane, 113 Ky. 288, 24 Ky. Law Rep. 150, 68 S. W. 150. Ignorance of one's rights will not prevent the statute of limitations fron; running, even though such ignorant person be guilty of neither fraud nor deceit. Berryman's Adm'r v. Garnett's Ex'r, 4 Ky. Law Rep. (abstract) 358. 19. Foust v. Warren (Tex. Civ. App.), 73 S. W. 404. See also, War- ren V. Foust, 36 Tex. Civ. App. 59, 81 S. W. 323 ; Tex. Rev. St. art. 3358. The fact that a grantor in a deed 1414; Statutes of Limitation. § 276d(l). Mistake as ground for relief — In general. Where defendants, to secure the payment of notes, gave plaintiff a lien on land, which, by inadvertence, was incorrectly described, plaintiff's right to have the contract reformed accrued as soon as the mistake occurred, and he was not compelled to wait until de- fault in the payment of the notes.^" The recording of a deed is not required to charge the parties thereto with notice of its con- tents ; the recording of certain deeds containing a mutual mistake is not of itself constructive notice to the grantors of the mistake, but is only to be considered with other facts and circumstances in determining whether the grantors had notice thereof, either actual or constructive.^^ In the absence of fraud, limitations run from the date of settlement against a vendor's cause of action arising out of a mutual mistake as to the amount of purchase money, in , a settlement between vendor and purchaser.^^ Where a warranty in a deed did not cover the quantity of land, plaintiff's right to recover a portion of the consideration for a deficiency in quantity was in assumpsit for money paid under mistake and was barred in five years after the discovery of the mistake. ^^ Where a vendor sold land under a bona fide belief that he had a legal right to do so, containing a misdescription had an as to bar of limitations on an aa- opportunity to investigate and dis- signed judgment. cover the mistalce was not sufficient 20. Stark v. Zehnder, 204 Mo. 443, to charge him with notice or l (N. Y.) 146; National Bank of Dela- van V. Cotton, 53 Wis. 31, 9 N. W. 926. In Winchell v. Hicks, 18 N. Y. 558, where sureties on a joint and several note were called upon for pay- ment, and they directed the holder to call for payment upon the princi- pal, who miade a payment on the note, it was held such an acknowledgment as to arrest the running of the stat- ute against him. In Huntington v. Ballou, 2 Lans. (N. Y.) 120, where the maker paid interest on the note, reciting in the receipt that it was made by au accommodation iudorser, by the hand of the maker, and the indorser, when afterwards shown the receipt by the holder, examined it and expressed his approval of it, it was held that the payment took the case out of the statute, as to such in- dorser. See First Nat. Bank of 1484 Statutes op Limitation. assent of a surety to a part payment hj the principal may be inferred.^^ And it seems that where money is paid by a surety in the presence of the principal, and the latter does not dissent thereto, or say anything, his silence may be treated as an acqui- escence in such payment, so as to remove the statute bar as to both.** If one co-contractor procures a payment to be made by his co-debtor, it is sufficient to bind him.*^ But even though the money is paid by one co-contractor for another, with funds of the other, and as his agent, and he . so informs the creditor, at the time, he is not bound thereby; and such payment does not remove the statute bar as to him.^ But the question as to whether there has been an assent by one co-debtor to a payment made upon the joint debt by another is a mixed question of law and fact, to be determined in view of all the circumstances attending the transaction. TJtica V. Ballou, 49 N. Y. 155, ap- proving this case, and holding that the requirement of the statute, that an acknowledgment or promise to take a case out of the operation of the statute must be in writing, does not alter the effect of a payment of principal or interest. The case of Harper v. Fairley, 53 N. Y. 443, de- pended simply on the question whether the maker of the note had knowledge of and assented to the pay- ment made upon it by another. 39. If a debtor and his surety go to the creditor together, for the express purpose of making a payment, and for that alone, and both apparently co-operate in the transaction, though the debtor alone handles the money, the creditor may consider it a Joint payment binding the surety under the statute of limitations, unless the surety notifies him that it is not so. Mainzinger v. Mohr, 41 Mich. 685. The admissions of one joint debtor are not evidence against the others. Rogers v. Anderson, 40 Mich. 290. 40. Whipple v. Stevens, 22 N. H. 219. But see Quimby v. Putnam, 28 Me. 419, where it was held that a payment by one of two joint debtors, in the presence of the other, is not evidence of a new promise made by both. See also Patch v. King, 29 Mo. 448. Payments authoritatively made by the treasurer of a partnership or joint-stoek company, from the part- nership funds, and by him indorsed on a note executed by the partner- ship, take the note out of the statute. Walker v. Wait, 50 Vt. 668. 41. McConnell v. Merrill, 53 Vt. 149, 38 Am. Rep. 663. 42. Bailey v. Corliss, 51 Vt. 366. Judicial PiiocEss. 1485 CHAPTER XXX. Judicial Process. SiOTiON 289. When action is treated as commenced. 290. Statutory provisions relating to. 291. Date of writ not conclusive. 292. Filing claim before commissioners. Pleading, set-off, etc. 293. Mistaken remedy, etc. 294. Amendment of process. 295. Must be action at law. 296. Abatement of writ, Dismissal of action. Reversal of judgment, etc. § 289. When action is treated as commenced. The question as to when an action is commenced, within the meaning of the statute, is one which has been variously decided. In some of the States, the statute itself settles this question, but where the statute is silent upon this point, it may be said that an action is commenced when the writ is issued. That is, when it is filled out and completed with an intention of having it served.-"- In any event, the issue of a process and giving it to an officer for service, or depositing it in a place designated or provided by an officer for that purpose, clearly amounts to a commencement of an action.^ 1. Jackson v. Brooks, 14 Wend. (N. Propogating the Gospel v. Whitcomb, Y.) 649; Lowry v. Lawrence, 1 a id. 2Z7; Hardy v. Corliss, 21 N. H. Gaines (N. Y.) 69, Colem. & C. Cas. 356; Day v. Lamb, 7 Vt. 426; Hail 170; Ross V. Luther, 4 Cow. (N". Y.) v. Spencer, 1 R. I. 17; Johnson v. 158, 15 Am. Dec. 341; Burdick v. Farwell, 7 Me. 373, 22 Am. Dec, 203; Green, 18 Johns. (N. Y.) 14; Oheet- Updike v. Ten Broock, 32 N. J. Law ham V. Lewis, 3 id. 43; Fowler v. 105. Sharp, 15 id. 323; Cox v. Cooper, 3 2. Michigan Ins. Bank v. Eldred, Ala. 256; Schroeder v. Merchants' 130 U. S. 693, 9 Sup. Ct. 690, 33 L. Ins. Co., 104 m. 71; Feazle v. Simp- Ed. 1080. son, a HI. 30; Ford v. Phillips, 18 See Gough v. McFall, 53 N. Y. Mass. (1 Pick.) 302; Seaver v. Lin- Supp. 331, 31 App. Div. 578; McKee coin, 38 Mass. (31 Pick.) 267; Ma- v. Allen, 94 111. App. 147. The run- son V. Cheney, 47 N. H. 34; Parker ning of the statute of limitations is V. Coleord, 3 N. H. 36; Society for stopped by the filing of a creditor's 1486 Statutes of Limitation. Formerly the question as to when an action could be said to have been commenced, so as to save a debt from the operation of the statutes, was one of great importance, and over which there was some confusion and conflict of doctrine. But the general rule adopted was, and is, except where otherwise provided by statute, that the statute is suspended from the time of the suing out of the writ, and its hona fide delivery to a proper officer for service.* The writ may be sent to the sheriff for service by mail, and if it fails to reach him without any fault on the part of the plaintiff, that is, if it was seasonably deposited by him or some person for him in the post-office, and except for unusual delay or accident in the transmission of the mail it should have seasonably reached the sheriff, the plaintiff will not be prejudiced.^ bill and a decree thereon, or by a valid assignment for creditors, as to creditors wlio come in under its terms. Richmond v. Irons, 121 U. S. 27, 7 Sup. St. 788, 30 L. Ed. 864; Thompson v. German Ins. Co., 76 Fed. 892; Fidelity Ins. Co. v. Roanoke Iron Co., 81 id. 439, 453. See Mc- Donald V. Nebraska, 101 id. 171, 41 C. C. A. 278; Peabody v. Tenney, 18 R. I. 498, 30 Atl. 456; Taber v. Royal Ins. Co., 134 Ala. 681, 26 So. 253, 689; Richardson v. Whitaker, 103 K.y. 425, 45 S. W. 774, 20 Ky. Law Rep. 121. 3. Beckman v. Satterlee, 5 Cow. (N. Y.) 519; Evans v. Gallaway, 20 Ind. 479; Lowry v. Lawrence, 1 Caines (N. Y.) 69; Kinney v. Lee, 10 Tex. 155; Hail v. Spencer, 1 R. I. 17; Cheetham v. Lewis, 3 Johns. (N. Y.) 43; Burdick v. Green, 18 id. 14; Jackson v. Brooks, 14 Wend. (N. Y.) 649; Sharp v. Maguire, 19 Cal. 577; Pimental v. City of San Francisco, 21 id. 351; State v. Groome, 10 Iowa 308. See Clare v. Lockard, 123 N. Y. 263, 25 N. E. 391, 9 L. R. A. 547, un- der the New York Code. See also, McGhee v. City of Gainesville, 78 Ga. 790, 3 S. E. 670; Hampe v. Schaffer, 76 Iowa 563, 41 N. W. 315; Knowlton V. City of Watertown, 130 U. S. 337, 9 Sup. Ct. 539, 33 L. Ed. 956, 130 U. S. 334, 9 Sup. Ct. 542. 4. Jewett V. Greene, 8 Me. 447. In some of the States express provision is made for saving the rights of par- ties where the writ fails of proper (Service by accident. See next note. From the time when a claim is sub- mitted to the jurisdiction of a court, the common statute of limitations and the analogous bars and presump- tions in equity and at law cease to operate for all the purposes of the pending litigation. Smith v. Crater, 43 N. J. Eq. 636, 12 Atl. 530; For- man v. Brewer, 62 N. J. Eq. 748, 48 Atl. 1012, 90 Am. St. Rep. 475. As to sureties on a bond for costs, the statute runs only from the time when the decree "is actually entered ; and a nuno pro tunc entry, as of an earlier date, has no effect on the operation of the statute of limita- Judicial P'eocess. 1487 § 290. Statutory provisions relating to. In many of the States provision is now made in the statute as to what shall be deemed the commencement of an action. Thus, in Maine, " the time when a writ is actually made with an intention of service " is the commencement of the suit f and this is practi- cally the provision in Alabama, whether the writ is executed or not, if it is continued by an aliaSj or recommenced at the next term of the court.^* In Kentucky, the action is deemed to be commenced at the date of the first summons or process issued in good faith from the court or tribunal having jurisdiction in the action. In ISTorth Carolina, the action is deemed to be commenced as to each de- fendant when the summons is issued against him. In Ohio, at the date of the summons which is actually served on the defend- ant, and when service by publication is proper, from the date of tions. Borer v. Chapman, 119 U. S. 587, 602, 7 Sup. Ct. 343, 30 L. Ed. 532; Fewlass v. Keeshan, 88 Fed. 573, 576. A cause of action against an ab- stracter of titles for giving a, wrong certificate of title, though amounting to an implied contract for skill and care, does not rest on the contract it- self, but on tort for negligence; it ac- crues at the date of the delivery, and not when the negligence is discovered or consequential damages arise. See Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545, 29 Am. St. Rep. 115; Yore v. Murphy, 18 Mont. 342, 45 Pac. 217; Russell & Co. v' Polk County Ab- stract Co., 87 Iowa 233, 54 N. W. 212, 43 Am. St. Rep. 381; Provident Loan Trust Co. V. Walcott, 5 Kan. App. 473, 47 Pac. 8. See Shackelford v. Staton, 117 N. C. 73, 23 S. E. 101; Daniel v. Grizzard (State v. Griz- zard), id. 105, 23 S. E. 93; supra, § 179, n. In general, as to contracts, the statute begins to run when there is a breach of contract, express or im-.~ plied, though the damages resulting from the original wrong mainly de- velop later. Campbell v. Culver, 67 N. Y. S. 469, 56 App. Div. 591. As to the time for bringing suit under the conditions of insurance policies, see Rogers v. Home Ins. Co., 95 Fed. 109, 35 C. C. A. 402, 404, n.; supra, § 100 and notes. That a motion in bankruptcy may be equivalent to an action in this respect, see Re Man- sell, 66 L. T. 245. 5. In Maine, it is also provided that "when a writ fails bf a suffici- ent service or return, by unavoidable accident, or default or negligence of the officer to whom it was delivered or directed," etc., a new action may be commenced within six months thereafter. In Vermont, a similar provision exists, except that one year is given. In Connecticut a provision similar to that in Vermont exists, so also in Massachusetts, Colorado, Iowa, and some other States. 5a. Southern Ry. Co. v. Dickens, ai63 Ala. 114, 50 So. 109. i 1488 Statutes op Limitation. the first publication; so also in Wyoming. In California, when the complaint is filed. So in Arizona, Utah, Idaho, and prac- tically in New Mexico. In Oregon, when the complaint is filed and served on one or more of the defendants. In Wisconsin, when the summons is served on one of the defendants. In Nevada, when the complaint is filed in the proper court, and a summons issued and placed in the hands of the sheriff of the county or other person authorized to serve the same. In Tennes- see, the suing out of a summons, whether it is executed or not, if it is continued by the issuance of an alias process from term to term, or recommenced within one year after the failure to exe- cute. In Florida, when the summons is issued to the proper officer or filed in the proper office. In New York, South Carolina, and Dakota, when the summons is served on one or more of the defendants.^ In Connecticut, the action is deemed to be com- menced from the date of the service of the writ.'' In Vermont, the making of a writ,* or the issue of a summons and order of notice, is the commencement of an action;' and such, also, is the rule in Massachusetts;^'* and the filling up and dating of a writ before the statute has run has been held sufficient to save the statute.-^-' In Pennsylvania, the issue of a summons suspends the statute if an alias summons is issued within six years -^^ and it is not necessary to enter continuances to save the bar;^^ and if the proper persons are sued, the statute is suspended, notwithstand- ing the firm name is erroneously given, and the pr6cesS is subse- quently amended.-^* But the issue of a summons which is not served will not save the statute, unless an alias is taken out and 6. In New York, prOTision is made 9. Blain v. Blain, 45 Vt. 538. for saving the plaintiff's rights when 10. Woods v. Houghton, 67 Mass. he attempts to commence an action. (1 Gray) 580. And a provision similar to that in 11. Gardner v. Webber, 34 Mass. section 399 exists in South Carolina (17 Pick.) 407. and Dakota. 18. McClurg v. Fryer, 15 Pa. »93. 7. Sandford v. Dick, 17 Conn. 213. 13. Schlosser v. Lesher, 1 Dall. 8. Allen v. Mann, VD. Chip. (Vt.) (Pa.) 411, 1 L. Ed. 200. 94. 14. Nichols v. Fox, 2 W. N. C. 196. JtrDiciAL Peogess. 1489 served within six years.^^ In Pennsylvania, the practice is to issue the original writ before the statute has run, and to continue it by an alias, plus, and pluries, even after the intervention of more than one term;-'^^ and as the writ which commences the action states the ground thereof, it is sufficient to set it forth without the continuances." In South Carolina, however, an alias must be issued within one year from the time the original issued, and must also be regularly delivered to the sheriff, or it does not operate as a continuance of the original writ.^* In 'New York, imder the old practice, the issuing of a capias to any county would save the statute,^^ even though the plaintiff directed the sheriff to return it non estj^ but it was required to be kept on foot by continuances, which could be entered at any time.^ The fact that the ad damnum is laid at a different sum from that in the original process, or that the venue was laid in a different county, will not defeat its effect in suspending the statute, if the action is transitory, and it is averred that both actions were predi- cated on the same claim, nor even that the actions are different in form, if both are for the same cause.^^ If the action is com- menced in season, the statute is saved vsdthout any reference to the question whether the plaintiff used any diligence in its prosecu- tion.23 § 291. Date of vwit not conclusive. The date of the writ is not conclusive, but is a fact which may be contested, and the rule may be said to be that it is not enough that the writ bears date before the expiration of the statutory period, but both the bona fides of the plaintiff in taking it out and 15. Curcier's Estate, 28 Pa. 261. 20. Beckman v. Satterlee, 5 Cow. 16. Pennoek v. Hart, 8 Serg. & R. (N. Y.) 519. (Pa.) 369. 21. Baskins v. Wilson, 6 Cow. (N. 17. Schlosser v. Lesher, 1 Ball. Y.) 471. (Pa.) 411, 1 L. Ed. 200. 22. Young v. Davis, 30 Ala. 213. 18. State Bank v. Baker, 3 McCord 23. King & Houston v. State Bank, (S. C.) 281. 13 Ark. 269. But see Clark v. Kellar, 19. Jackson v. Brooks, 14 Wend. 66 Ky. (3 Bush) 223; where a dif- (N. Y.) 649. ferent doctrine was held. 94 1490 Statutes of Limitation. the exact time may be averred and shown, notwithstanding the teste}^ The date of the writ is only prima facie evidence of the time of its issue f^ and whenever the exact time of its issue, even to the hour, becomes necessary, the defendant may, if he can, show it, even though it contradicts the teste of the writ. " It would be most extraordinary and inequitable," said Lord Mansfield, ^^ " not to allow the presumption, that the plaintiff commenced his process seasonably, to be rebutted by the defendant, by showing that in real truth the time was run before he took any step." § 292. Filing claim before commissioners — Pleading, set-off, etc. Filing a claim with the commissioners of a deceased insolvent estate has been held equivalent to commencing an action.^' And inlSTew York the entry of an order to refer a claim against the estate of a decedent is held to be the commencement of an action, within the meaning of the statute.^^ The filing of a claim in set-off operates as a suspension of the statute as to it, so that, even though the plaintiff's action fails, and the set-off cannot be enforced therein, the defendant may, by a suit brought within a reasonable time thereafter, preserve his rights.^' § 293. Mistaken remedy, etc. If the plaintiff mistakes his remedy, in the absence of any statu- tory provision, saving his rights, and during the pendency of the action the statute runs upon his claim, his remedy is barred f'^ and the same rule prevails where, from any cause, the plaintiff becomes nonsuit,^^ or the action abates or is dismissed, or judgment therein 24. Oomyn'a Digest, 539; Lester v. 237; Johnson v. Farwell, 7 Me. 372, Jenkins, 8 B. & C. 339 ; Allen v. Port- 23 Am. Dec. 203. land Stage Co., 8 Me. 307; Chauncey 26. Henderson v. Baker, supra. V. Butter, 3 Neb. 313; Henderson v. 87. Guild v. Hale, 15 Mass. 455. Baker, 2 Burr, 950; Hanway v. Mer- 28. Hultslander v. Thompson, 5 rey, 1 Vent. 38; Morris v. Pugh, 3 Hun (N. Y.) 348. Burr. 1241. 29. Hunt v. Spaulding, 35 Mass. 25. Gardner v. Wehher, 34 Mass. (18 Pick.) 531. See chapter on Set- (17 Pick.) 407; Society for Propogat- oS. ing the Gospel v. Whiteomb, 3 N. H. 30. Appeal of Todd, 34 Pa. 429. Judicial Process. 1491 is reversed or set aside, the statute bars another action brought for the same claim, unless as is the case in several of the States, provision is made to save the remedy.^^ § 294. Amendment of process. An amendment of the process which does not change the remedy does not affect the statutory suspension ; but where a party obtains leave to amend his summons and complaint after the statute has fully run, and does so by bringing in new parties defendant, the parties so brought in may set up the statute in bar of the action as to them f^ and it would seem that the bringing in of such new par- ties would be so far equivalent to bringing a new action,^* that such new defendants may rely upon the statute as a def ense,^^ especially where the new complaint does not advert to the former proceed- ings so as to conuect the former with, the latter.^^ Of course, 31. Harris v. Dennis, 1 Serg. & R. (Pa.) 236. 32. Williamson v. Wardlaw, 46 Ga. 126; Memphis & C. E. Co. v. Orr, 53 Miss. 541. 33. Newman v. Marvin, 12 Hun (N. Y.) 236. 34. McMahon v. Allen, 3 Abb. (N. Y.) 89, 1 Hilt. 103. See also, Ma- gaw V. Clark, 6 Watts (Pa.) 528; Brown v. Goolsby, 34 Miss. 437. In Bradford v. Andrews, 20 Ohio St. 208, 5 Am. Rep. 645, it was held that a new defendant brought in was in as of the date of the original process, al- though the statute had run in his favor before he was brought in. 35. See Shaw v. Cock, 12 Hun (N. Y.) 173, aflf'd 78 N. Y. 194. 36. Sands v. Burt, 1 Abb. L. J. 124. Where new plaintiffs were substituted who claimed to be entitled to be sub- rogated to the rights of the original plaintiff, the court held that by such substitution a new action was virtu- ally commenced, and that the statute was a bar thereto, although the ori- ginal action was seasonably com- menced. Sweet V. Jeffries, 67 ■ Mo. 420. See Bennington v. Dinsmore, 2 Gill (M'd.) 348; Gray v. Trapnall, 23 Ark 510. As to amendments of the declara- tion or complaint, the general rule is that, if such amendments do not pre- sent a new or different cause of ac- tion, and the original pleading al- leged a good cause of action, the stat- ute of limitations does not bar the amendment. See supra, § 7, n.; Chi- cago City Ey. Co. v. Haekendahl, 188 111. 300, 5S N. E. 930; Chicago Gen. Ey. Co.-v. Carroll, 189 111. 273, 59 N. E. 551; BeMen v. Barker, 124 Mich. 667, 83 N. W. 616; City of De- troit V. Hosmer, 125 Mich. 634, 7 De- troit Leg. N. 655, 85 N. W. 1; Bank of Stockham v. Alter, 61 Neb. 359, 85 N. W. 300; Cincinnati, etc., Ey. Co. V. Gray, 101 Fed. 623, 41 C. C. A. 535, 50 L. E. A. 47; Frishmuth v. Farmers' Losta & T. Co., 107 id. 169, 1492 Statutes op Limitation. an amendment of a complaint or declaration so as to present a new cause of action which was' barred at the time of the amend- ment, but which was not barred when the action was brought, will not defeat the operation of the statute as to such new matter. 46 C. C. A. 22Z; Molea v. Crozier, 31 Pitts. L. J. (N. S.) 316; In re Ibert, 62 N. Y. S. 1051, 48 App. Div. 510; Woodcock V. Bostic, 128 N. C. 243, 38 S. E. 881; Cicero & P. St. Ry. Co. V. Brown, 89 111. App. 318, aflf'd 193 111. 374, 61 N. E. 1093; Chicago North Shore St. Ry. Co. v. Payne, 94 id. 466, aflf'd 192 111. 239, 61 N. E. 467; City of Elgi^ v. Anderson, 111. App. 527; Kent v. San Francisco Savings Union, 130 Cal. 401, 62 Pac. 620; Alabama Gt. Southern R. Co. v. Thomas, 89 Ala. 294, 7 So. 762, 18 Am. St. Rep. 119; Chambers v. Tal- ladega Real-Estate, etc., Assoc:, 126 Ala. 296, 28 So. 636; Galveston, etc., Ry. Co. V. English (Tex. Civ. App.), 59 S. W. 626; Beaty v. Atlantic & W. P. R. Co., 100 Ga. 123, 28 S. E. 32; Service v. Farmington Sav. Bank, V. Cobb, 88 Maine 488, 34 Atl. 277, 62 Kan. 857, 63 Pac. 670; Flanders V. Cobb, 88 Maine 488, 34 Atl. 277, 51 Am. St. Rep. 410, 431, n.; 57 Al- bany L. J. App., p. 16. As to the effect of amendments in actions for conversion, see supra, § 183, n. 49. In some States, as,, e. g., in Ohio and West Virginia, it is provided by statute that an attempt to commence an action shall be deemed equivalent to the commencement thereof, enabl- ing a plaintiff who becomes nonsuit to bring a new action within a speci- fied time, as one year, without be- coming amenable to the statute of limitations. See Pittsburg C. C. & St. L. Ry. Co. V, Bemis, 64 Ohio St. ae, 59 N. E. 745; Wiggins Ferry Co. V. Gardner, 91 111. App. 20; Hamil- ton V. Royal Ins. Co., 156 N. Y. 327, 50 N. E. 863, 42 L. R. A. 485; Gough V. MoFall, 31 App. Div. 578, 52 N. Y. Supp. 221; Hooper v. Atlanta, K. & N. Ry. Co., 106 Tenn. 28, 60 S. W. 607, 53 L. R. A. 931; Manuel v. Nor- folk & W. Ry. Co., 99 Va. 188, 3 Va. Sup. Ct. Rep. ll'O, 37 S. E. 957; Ket- terman v. Dry Fork R. Co., 48 W. Va. 606, 37 S. E. 683 ; Smith v. Herd, 110 Ky. 56, 22 Ky. Law Rep. 1596, 60 S. W. 841, 1121; Irwin v. Lloyd, 20 Ohio Cir. Ct. R. 339, 11 0. C. D. 312. The Iowa statute (§ 3537), allows this when, after commencing an ac- tion, " the plaintiff for any cause, ex- cept negligence in its prosecution, fails therein." This exception of negligence has been held to apply where a plaintiff, having ground for a continuance, did not apply there- for, but voluntarily dismissed the ac- tion. Pardey v. Town of Mechanics- ville, 112 Iowa 68, 83 N. W. 838. And see Boyce v. Snow, 187 111. 181. If when actions at law were origi- nally brought the cause of action sued on was not barred by limita- tion, but was barred when a motion to consolidate, the actions and to con- vert them into a bill in equity was made, the plaintiff's claim against the defendants in the original actions at law is not barred, but as against those defendants, who were first made parties by the filing of the bill in equity, it is barred. Smith v. But- ler, 176 Mass. 38, 57 N. E. 323. Judicial Pbocess. I'iSS because as to it the statute was not suspended until the amend- ment was made.^' But as to all amendments of the complaint which do not change the remedy or the original ground of action as stated therein, they are treated as relating, back to the time of the commencement of the action.^^ § 295. Must be action at law. The commencement of a bill in chancery does not suspend the statute, and if pending such bill the statute runs upon the claim, it is barred so that an action at law cannot be maintained thereon, although the bill is dismissed, even where the statute makes pro- vision for the bringing of a fresh action, when the original action was brought in season, and was abated or dismissed, etc.^^ An action in the nature of a creditor's bill to recover property of a judgment debtor, and to have the same applied in payment of the judgment, does not operate to extend the lien beyond the statutory period. Such an action is not, in any proper sense, an action brought upon the judgment as a cause of action, in order to obtain a new judgment, but simply an action ancillary to and for the pur- pose of obtaining satisfaction of an existing judgment. It has been repeatedly held that a pending levy of an execution made dur- ing the life of a judgment will not operate to continue the life or lien of a judgment beyond the statutory period; that a judgment creditor must sell the property levied on within the statutory period of the life of the lien of the judgment ; that a levy during that period neither creates a new lien nor extends the judgment lien; that nothing but a renewal within the life of the judgment will continue the lien of the judgment; that if an execution is issued at so late a day that a sale cannot be made within the life of the judgment, it should be accompanied by a scire facias or renewal.^" 37. Lagow V. Neilson, 10 Ind. 183. Gray v. Berryman, 4 Mimf. (Va.) 38. Agee v. Williams, 30 Ala. 636. 181. See Wing v. De la Rionda, 125 N. Y. 40. Tenney v. Hemenway, 53 HI. 678, 25 N. E. 1064. 97; Gridley v. Watson, id. 186; Isaac 39. Roland v. Logan, 18 Ala. 307; v. Swift, 10 Cal. 71, 70 Am. Dec. 698; 1494 Statutes of Limitation. § 296. Abatement of writ, dismissal of action, reversal of judg- ment, etc. Except where the statute expressly makes a saving of the rights of a plaintiff, on the failure of the original suit, for any cause, whether by reason of the plaintiff becoming nonsuit, the abatement or' dismissal of the action, or the reversal of the judgment, a new action cannot be brought for the same cause against which the statute will not be a bar.**- In many of the States, the statute pro- vides that when a writ fails of a sufficient service or return by unavoidable accident, or default, or negligence of the officer to whom it was delivered or directed, or is abated, or the action other- wise defeated for any matter of form, or by the death of either party, or if a judgment for the plaintiff is reversed on a writ of error, the plaintiff may commence a new action on the same de- mand within six months after the abatement or determination of the original suit, or reversal of the judgment; and if he dies, and the cause of action survives, his executor or administrator may Bagley v. Ward, 37 Cal. 121, 99 Am. Deo. 356; Rogers v. Druflfel, 46 Cal. 654; Dickinson v. Cbllins, 1 Swan 516; Davis v. Ehrman, 20 Pa. 256; Rupert v. Dantzler, 20 Miss. (12 S. & M.) 697; Bierne v. Mower, 21 Miss. (13 S. & M'.) 437; Graff v. Kip, 1 Ed. Ch. (N. Y.) 619; Tufts' Adm'r v. Tufts, 18 Wend. (N. Y.) 621; Little V. Harvey, 9 id. 157; Roe v. Swart, 5 Cow. 294; Newall v. Dart, 28 Minn. 248, 9 N. W. 732. As to the effect of renewing writs under the present English practice, see Hewett v. Barr (1891), 1 Q. B. 98; Magee v. Hastings, 28 L. E. Ir. 288. 41. Dennistoun v. Eist, 9 La. Ann. 464; Walker v. Peay, 22 Ark. 103; Mahon v. The Justices, Ga. Dec. 201; Gray v. Trapnall, 23 Ark. 510; Rob- inson V. Robinson, 5 Harr. (Del.) 8. An action voluntarily abandoned can- not be made available to save a sub- sequent suit for the same cause, from the operation of the statute. Eai parte Hanks, 1 Cheves (S. C.) Eq. 209; Null V. White Water Valley Canal Co., 4 Ind. 431. It is no bar to the statute that the plaintiff com- menced an action seasonably, which failed for informality. Callis v. Waddy, 2 Munf. (Va.) 511. In Ver- mont, where the statute saves the rights of a plaintiff when his action fails for any matter of form, for one year thereafter, it was held that this did not extend to a case where the first suit was terminated by a non- suit occasioned by the inability of the plaintiff, through poverty, to comply seasonably with an order, made by the court, that he furnish additional security by way of recognizance for the defendant's costs. Hayes v. Stew- art, 23 Vt. 622. JtTDICIAL PeOCESS. 14:93' commence such new action within said six months. Under such statutes, the rights of a party are saved where his original action is defeated for any of the reasons stated, or within the spirit of the saving clause, as a nonsuit,*^ or a failure of the action by rea- son of the absence of the justice before whom it was brought/^ So, where the summons is set aside for defective service,** or is dismissed by reason of an accidental omission of the clerk to enter it seasonably on the docket.*^ But a voluntary dismissal of the action does not save the remedy,*^ nor indeed, in any case where there was a voluntary abandonment of the action, can it be relied upon to check the operation of the statute.*'' 42. Freshwater v. Baker, 52 N. C. would not be a bar thereto unless it (7 Jones L.) 225; Spear v. Newell, had run before the commencement of 13 Vt. 288 ; Skillingtou v. Allison, 9 the first suit. Phelps v. Wood, 9 Vt. N. C. (2 Hawks) 347. 399; Spear v. Curtis, 40 Vt. 59. 43. Where a plaintiff brought a 44. Meisse v. MoCoy, 17 Ohio St. suit before a justice of the peace who 225. See Bullock v. Dean, 53 Mass. onee continued the cause, but at the (12 Mete.) 15. second time appointed he was ab- 45. Allen v. Sawtelle, 73 Mass. (7 sent, whereby the plaintiff was neces- Gray) 165. sarily driven to a nonsuit, it was held 46. Walker v. Peay, 23 Ark. 103. that, under a similar statute, he 47. Null v. White Water Valley might bring a new action within the Canal Co., 4 Ind. 431. time named therein, and the statute 14&6 Statutes of Limitation. CHAPTEE XXXI. Commencement op Action oe Othee Peoceeding. Section 297. Mode of computation of time limited. 298 ( 1 ) . Proceedings constituting commeneement of action in general. 298 (2). Filing pleadings. 299 (1). Issuance and service of process. Issuance of process. 299 (2). Delivery of process to ofBcer. 299 (3). Service of process. 299 (4). Service on part of defendants. 299 (5). Substituted service. 1 299 (6). Subsecpient, alias, or pluries process. 300. Want of jurisdiction. 301 (1). Defects as to parties in general. 301 (2). Amendment of defects. 302. Defects or irregularities in process or service. 303. Defects or irregularities in pleadings or other proceedings. 304. Intervention or bringing in new parties. 305. Substitution of parties. 306. Effect as to persons not parties. 307 (1). Amendment of pleadings in general. 307 ( 2 ) . Amendment restating original cause of action. 307 (3). Amendment introducing new cause of action. 308 ( 1 ) . New action after dismissal or nonsuit or failure of former action in general. 308 (2). Nature or form or identity of actions or proceedings. 308 ( 3 ) . Abatement or abandonment of former action. 308 (4). Dismissal or nonsuit in general. 308 (5). New action in different forum. 308 (6). Failure of action for want of jurisdiction. 308 ( 7 ) . Failure for defects as to parties. 308 (8). Failure of action for want of, or defects in, process or ser- vice thereof. 308 (9). Failure of action for defects in pleading. 308 (10). Identity of, or change in parties. 308 (11). Decisions on review. 308 (12). Action on set-off or counterclaim or cause of action al- leged as defense. 309. Civil proceedings other than actions in general. 310. Presentation of claim against estate of decedent. 311. Presentation of claim against estate of insolvent or bankrupt. 312. Proceedings in other court or tribunal. 313. Excuses for delay. Commencement of Action^ Etc. 1497 § 297. Mode of computation of time limited. The time of the statute is computed from the accruing of the action to the commencement of the suit.-"- Where, in trespass to try title, limitations are relied on as a defense, the running of the statute should be reckoned from the date of the deeds under which the parties in possession claim title until the beginning of the suit against them to recover possession.^ In Arkansas, in comput- ing the time of the running of the statute, the day on which the right of action accrues should be included, and the day when the summons was issued excluded.^ In California, a note drawn pay- able " one day after " the happening of a particular event is not due until the day after the event happens. The maker has all of that day in which to pay the money, and an action commenced during that day would be premature ; hence an action on it is not barred until the lapse of the term allowed by the statute, after such day, and not including it.* In the District of Columbia, under a statute providing that suits shall be brought " within three years ensuing the cause of such action, and not after," the day on which the cause of action accrues is to be excluded.^ In Illinois, the statute of five years begins to run as to trespass from the time it was committed.® In Kansas, in an action on an account, the period of limitation should be computed by excluding the day on which the last item was furnished and including the last day of the period 1. Withers v. Richardson, 21 Ky. ity; and, in calculating the time (5 T. B. Mon.) 94, 17 Am. Dee. 44; within which he may thereafter sue Stewart v. Durrett, 19 Ky. (3 T. B. for an interest in- land, the latter day Mon.) 113. See also Computation of is to be considered the first day of Time, Ch. V, supra. the five years allowed. Ganahl v. 2. Wade v. Goza, 78 Ark. 7, 96 S. Soher (Cal.), 5 Pac. 80. W. 388. 5. Baker v. Ramsburg, 4 Mackey 3. Shinn v. Tucker, 33 Ark. 421. (D. C.) 1. 4. Hathaway v. Patterson, 45 Cal. 6. Krug v. Outhouse, 8 111. App. 294. 304, and hence, where a trespass was The time of one's minority is cal- committed on June 31, 1873, and suit eulated from the first minute of the begun therefor on June 31, 1878, the day on which he was born to the first cause of action was barred, the five minute of the day corresponding years having elapsed before the ac- which completes the period of minor- tion was brought. 1498 Statutes of Limitation. of limitation^ Under the Kentucky statute providing for setting aside certain mortgages and transfers of property made in fraud of creditors where the action therefor is brought " within six months after " the instrument is placed on record, in computing the time for bringing the action, the day on which the instrument is placed on record should be included.^ In Louisiana, under the Code provision requiring that prescription shall only be acquired after the last day allowed by law has elapsed, the one-year pre- scription for an action for tort is computed from and after the day of the commission of the tortious act.® In New Jersey, when, on the issue of limitation, the time is to be computed from a date, the day is excluded ; and, when it is to be computed from an event or an act, the day is included ; and the day on which the cause of action accrued is not to be counted.-^* In Minnesota, in determining whether a cause of action is barred by limitations, the day on which it occurred is excluded.-'^ Under ]S"orth Carolina Code, § 152, declaring that actions on judgments shall be commenced " within ten years after the date of the rendition of said judgment," action begun October 20, 1883, on a judgment rendered October 20, 1873, was begun too late.^^ Under Tennessee Code, § 2281, pro- viding that a married woman may bring suit within one year after her discoverture, where plaintiff's husband died November 9, 1869, and her bill was filed Novmeber 9, 1870, the suit was brought in time, as the law does not take account of fractions of a day.-'^ In Texas, in computing the time by which an action is barred by Rev. 7. Hook V. Bixby, 13 Kan. 164, un- against an action to set aside a deed der Code provision that an action on elapses at the last hour of the last contract must be brought "within day of the tenth year. Breaux v. three years after the cause of action Broussard, 116 La. 215, 40 So. 639. shall have accrued" and statutory 10. McChilloch v. Hopper, 47 N. J. provision that "the time within Law (18 Vroom) 189, 54 Am. Kep. which an act is to be done shall be 146, 7 N. J. Law J. 336. computed by excluding the first day 11. Nebola v. Minnesota Iron Co., and including the last." 103 Minn. 89, 112 N. W. 880. 8. Lebus V. Wayne Ratterman Co. 12. Cook v. Moore, 95 N. C. 1. (Ky.), 21 S. W. 653. 13. Rogers v. Etter, 67 Tenn. (8 9. Wartelle v. King, 10 La. Ann. Baxt.) 13. See Elder v. Bradley, 34 655. The 10 years prescription Tenn. (2 Sneed) 247. COMMEJTCEMENT OF AcTION^ EtC. 1499 St., art. 3203, which provides that certain actions shall be brought " within two years after the cause of action shall have accrued," the day on which a cause of action accrues is not coutited.^* Under the Vermont statute, providing that, when time is to be reckoned from a day or date, such day or date shall not be included in the computation, the day on which payment was made on a promissory note is excluded in determining whether the statute of limitations is a bar.^^ § 298(1). Proceedings constituting commencement of action in general. A suit to establish a personal judgment as an equitable lien, being on a separate and distinct cause of action, does not relate back to the commencement of the original action, and is subject to the defense of limitation.-^'' Where certain defendants seek to enforce demands against a codefendant, the action will be deemed commenced as to such demands at the time the answers setting them up are filed." An action prematurely brought prevents the running of limitations.^* § 298(2). Filing pleadings. In the District of Columbia, when a declaration is filed with directions, either express or implied, by the plaintiff or his attor- ney to the clerk to issue process thereon, and nothing remains to be done but that the clerk should proceed, and plaintiff has other- vdse complied with all the requirements of the law, such as the 14. Smith V. Dickey, 74 Tex. 61, 11 Ross v. Morrow, 85 Tex. 172, 19 S. S. W. 1049. See also, Texas & P. Ry. W. 1090, 16 L. R. A. 543. Co. V. Goodson, 3 Willson, Civ. Cas. 15. Hicks' Estate v. Blanchard, 60 Ct. App. § 27. Vt. 673, 15 Atl. 401. In estimating a period of limita- 16. Lang v. Choctaw, O. & G. R, tion running against a person from Co., 198 Fed. 38, 117 C. C. A. 146. the date of his majority, the day on 17. German Fire Ins. Co. v. Bul- which he attained it must be com- lene, 51 Kan. 764, 33 Pac. 467. puted, and, in ascertaining the date 18. St. Louis So S. F. Ry. Co. v. of his majority, his age is computed Kinman, 9 Kan. App. 633, 58 Pao. by including the date of his birth. 1037. 1500 Statutes of Limitation. payment of necessary fees and the like, the suit must be deemed to be then commenced so far as to arrest the running of the statute of limitations.-^' In California, an answer in partition setting up a mortgage, and asking that it be declared a lien on the land, and its payment provided for, is equivalent to an action to fore- close, and the question of the bar of limitations or of laches de- cided as if the action was begun when the answer was filed.^ In Colorado, the filing of a complaint within two years after the ac- crual of the cause of action, and the issuance of a summons against defendant, is the commeneement of an action tolling limitations.^^ In Georgia, the filing of the petition is treated as the commence- ment of the suit only when followed by due and legal service. If there is no process and no service, and the plaintiff is guilty of laches, the writ becomes abortive, and the court loses jurisdiction to issue process or to have service perfected.^^ In Delaware, the commencement of an action in a justice's court, that will arrest the running of limitations, is not the order for summons or attach- ment, the two kinds of process provided for in such court, but the issuance thereof, so that filing a praecipe before the justice, com- manding the issuance of summons or attachment, is not a " com- mencement of action " with such effeet.^^ In Illinois, the mere appearance of a subcontractor to a bill to enforce a mechanic's 19. Huysman v. Evening Star poration not complying with the atat- Newspaper Co., 13 App. D. C. 586. utes cannot institute suit in thia 20. Sanford v. Bergin, 156 Cal. 43, State. Western Electrical Oo. v. 103 Pac. 333. Pickett, 51 Colo. 415, 118 Pac. 988. 21. Kingsley v. Clark, 57 Colo. 352, 22. Cox v. Strickland, 120 Ga. 104, 141 Pac. 464, under Mills' Ann. Code, 47 S. E. 912. See also, Jordan v. § 33, even though defendant was not Bosworth, 123 Ga. 879, 51 S. E. 755; served within the six-year period pre- Nicholas v. British American Assur. scribed by Rev. St. 1908, § 4061, as Co., 109 Ga. 621, 34 S. E. 1004; the time within which such actions Bentley v. Reid, 133 Fed. 698, 66 C. should be begun. C. A. 528 (Ga.). An attempted suit by a foreign cor- 23. McMullin v. Beck, 3 Boyce's. poration doing business within the (26 Del.) Rep. 116, 80 Atl. 524. But State without having paid the fee re- see Gatta v. Philadelphia, B. & W. quired by law would not suspend the E. Co., 1 Boyce's (24 Del.) Rep. 293, running of limitations, since a cor- 76 Atl. 56. Commencement of Action, Etc. 1501 lien, pursuant to an allegation made by complaint tliat he had been informed that the subcontractor appearing claimed some in- terest, is not the equivalent of " filing a petition " or " commenc- ing a suit " or filing an answer, intervening petition, or cross-bill, arresting the running of the statute limiting the time within which a subcontractor can enforce a lien.^* In Indiana, the filing of a declaration is not the commencement of a suit.^^ In Iowa, the record alone must be looked to, to determine when notice of the beginning of an action was delivered to the sheriff, or when the action was instituted, as affecting limitations.^^ In Michigan, the statute includes in the things constituting commencement of suit by declaration the service of a copy personally on defendant.^'' In Minnesota, the filing of complaints in an action by creditors against an insolvent corporation, exhibiting their claims against it, tolls the statute of limitations both as to it and its stockholders.^* In Missouri, the filing of the petition with the clerk of the court before limitations have run is the bringing of a suit within the Code, though summons be not issued until after that time.^ TJn- 24. Galloy v. Sparrow, 166 111. Downer v. Union Land O)., 103 Minn. App. 197. And see Miller v. Rich, 392, 115 N. W. 207. The filing of an 204 111. 444, 68 N. E. 488. answer in proceedings under the 25. State v. Clark, 7 Ind. 468. Torrens Act by defendant, setting up 26. Cooley v. Maine, 163 Iowa, 117, » mechanic's lien, is not equivalent 143 N. W. 431. And see Klingman to an action to foreclose, and does v. Madison County, 161 Iowa 422, 143 not continue the lieu in force beyond N. W. 426. the period fixed by the statute of In Louisiana, a plea of prescription limitations. Reed v. Siddall, 94 filed in the Supreme Court will be Minn. 216, 102 N. W. 453. overruled where it appears from the 29. State ex rel. Brown v. Wilson, record that plaintiff's suit was in- 216 Mo. 215, 115 S. W. 549; MoCor- stituted and defendant excepted to mick v. Clopton, 150 Mo. App. 129, the demand and answered within the 130 S. W. 122, unless plaintiflf di- preseription period. Sharp v. Me- reeted the clerk not to issue until Bride, 134 La. 249, 63 So. 892. further orders; in which latter case 27. Wilton V. City of Detroit, 138 the suit is to be treated as not corn- Mich. 67, 11 Detroit Leg. N. 467, 100 menced till a purpose to proceed with N. W. 1020. it is manifested by causing the sum- 28. London & N. W. American mons to actually issue. Mortg. Co. V. St. Paul Park Imp. Co., A suit in equity is commenced by 84 Minn. 144, 86 N. W. 872. See also, the filing of the bill with intent to 1502 Statutes of Limitation. der the Montana Code Civ. Proc., § 66, providing that civil actions are commenced by filing a complaint, a complaint to revive a judg- ment filed within six years confers jurisdiction, though the sum- mons is not served v^ithin that time.^'' In Oregon, by statute, an action is commenced when the complaint is filed and summons served, and suit is commenced so as to stop limitations when defend- ant voluntarily appears in the action by demurring to the com- plaint.^^ Under the Texas statute the filing of the petition is the commencement of the suit if there is a hona fide intention of the plaintiff to prosecute the suit, and he uses reasonable diligence to have process issued and served.^^ In Washington, the date of the filing of a complaint marks the commencement of the action in so far as the limitations are concerned.^* To constitute the prosecute the same, if there is no un- reasonable delay in the issue or ser- vice of the subpoena. Armstrong Cork Co. V. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93, modifying judg. 171 Fed. 778 (C. C. A., Mo.). Whether an action has been com- menced within the statute is deter- mined by whether plaintiflF complied with Rev. St. 1909, § 1756, providing that the filing of a petition and suing out process shall be deemed the com- mencement of the action. Hinshaw v. Warren's Estate, 167 Mo. App. 365, 151 S. W. 497. 30. Haupt V. Burton, 21 Mont. 572, 55 Pac. 110, 69 Am. St. Rep. 698. Pleading a lien on land by a judg- ment creditor, in an action by the executor to sell the land for the pay- ment of debts, is not the commence- ment of an action, within Ohio Rev. St., § 6113. Ambrose v. Byrne, 61 Ohio St. 146, 55 N. E. 408. In South Dakota, a reply, when filed, relates back to the commence- ment of the action, and may be filed after the expiration of the limita- tion period, where the action is com- menced within that period. State v. Coughran, 19 S. D. 271, 103 N. W. 31. 31. Hawkins v. Donnerberg, 40 Or. 97, 66 Pac. 908. See also. Smith v. Day, 39 Or. 531, 64 Pac. 812, judg. aflf'd 39 Or. 531, 65 Pac. 1055. 3.2. Wigg V. Dooley, 28 Tex. Civ. App. 61, 66 S. W. 306; City of Bel- ton V. Sterling (Tex. Civ. App.), 50 S. W. 1037; Wood v. Mistretta, 20 Tex. Civ. App. 236, 49 S. W. 236; Wood V. Gulf, etc., Ry. Co., 15 Tex. Civ. App. 323, 40 S. W. 24; Gulf, etc., Ry. Co. V. Flatt (Tex. Civ. App.), 36 S. W. 1039; Hutcheson v. Chandler (Tex. Civ. App.), 104 S. W. 434. The statute of limitations is sus- pended by the institution of a suit, service on defendant, and its appear- ance and answer. Forbes Bros. Teas & Spice Co. v. McDougle, Cameron & Webster (Tex. Civ. App.), 150 S. W. 745. 33, Lara v. Sandell, 53 Wash. 53, lOO' Pac. 166; Blalock v. Condon, 51 Commencement or Action, Etc. 1503 " commencement of a suit " in equity in a federal court, whicli will stop the running of the statute of limitations, there must be the filing of a bill and the due issuance of a writ of subpoena, which must come to the hands of the serving officer with intent that it be served, and there must be a hona fide attempt to serve it, fol- lowed, if unsuccessful, by reasonable diligence to procure service through further or additional process.^* § 299(1). Issuance and service of process — Issuance of process. A suit in equity in a Federal court is commenced, so as to stop the running of limitations, by the suing out of the appropriate process and a iona fide attempt to serve it. Bona fides requires an effort to proceed according to law, and to employ the means which the law prescribes.^^ In Arkansas, where, in a suit to foreclose a mortgage, plaintiff suffered a nonsuit, but thereafter he caused a summons to be issued and served on the defendants, such issu- ance and service was equivalent to the commencement of a new Wash. 604, 99 Pac. 733; Petree v. Lumber Co., 85 Fed. 827, 29 C. C. Washington Water Power Co., 64 A. 431, aff'g decree 80 Fed. 309 (C. Wash. 636, 117 Pac. 475; Service v. C. A., Cal. ). The issuance of a sub- M'cMahon, 42 Wash. 452, 85 Pac. 33; poena to be served outside the ter- Hayton v. Season, 31 Wash. 317, 71 ritorial jurisdiction of a federal Pac. 1018; Cresswell v. Spokane court, and the service thereof, is a County, 30 Wash. 620, 71 Pac. 195. mere nullity, and not a commence- In Utah, an action is commenced ment of the suit, vfhich will stop the by the filing of the complaint. Key- running of limitations. Id. ser V. Pollock, 20 Utah 371, 59 Pac. The issuance of a writ of scire 87. facias to revive a judgment suspends In West Virginia, where a judg- the running of limitations against it ment claim against a fraudulent for the purposes of the proceeding, grantor is impleaded in a suit attack- and the fact that the judgment would ing the fraudulent conveyance, limi- have become ineffective for any pur- tations ceased to run against the pose, by limitation, before the hear- judgment, though no answer has been ing, had the proceeding not been filed asserting it. Davis v. Halstead, commenced, is no defense to a revival. 70 W. Va. 572, 74 S. E. 725. Lafayette County v. Wonderly, 93 34. United States v. Miller, 164 Fed. 313, 34 C. C. A. 360, aff'g judg. Fed. 444 (C. C, Or.). Wonderly v. Lafayette County, 77 35. United States v. American Fed. 665 (C. C. A., Mo.). 1504 Statutes of Limitation. suit within the statute.'^® Under the Kentucky statute, providing that an action shall be deemed to have been commenced at the date of the first summons issued in good faith, the filing of peti- tion and issuing of summons against defendant stopped the rim- ning of the statute, though defendant vras a nonresident, plaintiff city and its attorney being ignorant of that fact.^^ In Louisiana, prescription against an action to annul a judgment for fraud be- gins to run from the date of the service of the citation, and not from that of the filing of the suit.^^ Under the express provision of the ISTebraska statute, an action was deemed commenced at the date of the summons which was served; under the Oklahoma statute, adopted from Indiana, a civil action was deemed com- menced from the time of issuing summons.^' In Texas, the issu- ance of a citation is the commencement of a suit in justices' courts.^" In West Virginia, a suit begins with the issuance of the summons to answer the bill or declaration, and therefore the stat- ute of limitations ceases to run at the date of the issue of the summons. ^^ In Worth Carolina, under a rule that, when a sum- mons issues, limitations are suspended, though the service is not made till later, a direction by the court that the owner of a judg- 36. Livingston v. New England ter's Adm'r, 83 Ky. 149, 7 Ky. Law Mortgage Security Co., 77 Ark. 379, Eep. 81. 91 S. W. 752, under Kirby's Dig., § 38. Duplessis v. Siewerd, 36 La. 5083. Ann. 779. 37. Walston v. City of Louisville, 39. Schnell v. Jay, 4 Okl. 157, 46 23 Ky. Law Eep. 1853, 66 S. W. 385, Pac. 598. And see Greenamayer v. under Ky. St., § 3534. See also, as Coate, 13 Okl. 453, 72 Pae. 377. to the eflfeot of the issuance of pro- 40. Brown v. Been (Tex. Civ. cess: Lucas v. Commonwealth, 121 App.), 54 S. W. 779; Moore v. Gulf, Ky. 423, 28 Ky. Law Rep. 372, 89 etc.. By. Co. (Tex. Civ. App.), 46 S. S. W. 393; Louisville & N. R. Co. v. W. 388. And see August Kern Bar- Bowen, 18 Ky. Law Rep. 1099, 39 S. her Supply Co. v. Freeze, 96 Tex. 513, W. 31; Schwab v. Gutman, 9 Ky. 74 S. W. 303. Law Rep. (abstract) 765; Louisville 41. Lawrence v. Winifrede Coal &N. R. Co. V. Smith, 9 Ky. Law Rep. Co., 48 W. Va. 139, 35 S. E. 925; (abstract) 404; Ballou v. Wilmot, 9 United States Blowpipe Co. v. Spen- Ky. Law Rep. (abstract) 774; Sav- cer, 46 W. Va. 590, 33 S. E. 343; ings Bank of Louisville v. McAUis- Lambert v. Ensign Mfg. Co., 43 W; Va. 813, 26 S. E. 431. OOMMENOEMENT OF ACTION^ EtC. 1505 ment against decedent be made a party to a suit to compel a sale of the judgment debtor's homestead to pay liens and that notice be issued to such judgment creditor effectually suspended limitations as against his judgment to the same extent as if a summons had been issued.*^ § 299(2). Delivery of process to officer. The statute of limitations does not cease to run in favor of the holder of the legal title to land as against a suit by the United States to set aside the patent until he is made a party to the suit and process issued and placed in the hands of the marshal with a bona fide intent that it be served.^^ In Illinois, the issuance of a summons, at law, is deemed the commencement of the action, and is sufficient to prevent the running of the statute of limitations, notwithstanding it was never delivered to the sheriff for service.^* An action is not commenced, within the meaning of the Iowa stat- ute, by delivering the original notice for service to one who was not a sheriff or officer, and who did not serve it on any person on whom service was authorized, or by the delivery of it to the sheriff for service where, after it had been placed in the sheriff's 42. Town of Tarboro v. Pender, 153 sufficient to avoid the bar of limita- N. C. 437, 69 S. E. 425. tions under Eev. St. Wis. 1898, § Where summons is issued, but not 4240. Johnson v. Turnell, 113 Wis. given to an officer for service, and 468, 89 N. W. 515. the suit is dismissed by plaintiflF for Where plaintiff made three succes- want of service, with judgment sive attempts to serve defendant vsrith against plaintiff for costs, no suit is summons in an action on a note com- commenced, within Shannon's Code menced within the four years pre- Tenn., §§ 4445, 4446. East Tennessee scribed by Civ. Code Ariz. 1901, par. Coal Co. V. Daniel, 100 Tenn. 65, 43 2954, that it was over two years be- S. W. 1062. fore defendant was found and served Where an attorney received from a did not affect the suspension of the justice signed summons blanks, and statute, caused by bringing the ae- filled one in with the proper entries tion. Bennett v. Ellison, 16 Ariz, for an action on a certain note, and 196, 141 Pac. 738. delivered it to an officer on the last 43. United States v. Smith, 181 day of the period of limitations, and Fed. 545 (C. C, Or.), the officer served the paper two days 44. Rich v. Scalio, 115 111. App, thereafter, such proceedings were not 166. 95 1506 Statutes or Limitation. hands for service, lie is unable to make service.*^ In Kentucky, the filing of a petition in the clerk's office, and the issuing of sum- mons thereon, suspends the running of the statute of limitations, though the clerk may fail in his duty to see to the delivery of the summons to the sheriff.*® In Michigan, the commencement of a. suit consists of suing out the summons, and delivering or trans- mitting it to an officer, with the bona fid& intention of having it served.*'' In Missouri, in a suit before a justice, the delivery of the writ to the constable to be served is the commencement of the action.*' In 'New Jersey, an action is commenced when process, duly tested and issued, is put in the hands of the sheriff to b© served.*^ In New York, where, in an action to recover money paid in excess of the legal interest under General Business Law, § 372, the summons, though delivered to the sheriff within a year after the cause of action accrued, was not served until after the year, the action must fail for failure to bring the action within the time limited.^** Delivery in good faith of a summons from a justice court for service to a person incapable of making a valid 45. Lesure Lumber Co. v. Mutual 49. County v. Pacific Coast Borax Fire Ins. Co., 101 Iowa 514, 70 N. W. Co., 67 N. J. Law, 48, 50 Atl. 906. 761; Richardson v. Turner, 110 Iowa An action is "commenced and 318, 81 N. W. 593. And see Hawley sued" within the statute of limita- V. Griffin, lai Iowa 667, 93 N. W. tions (3 Cfemp. St. 1910, p. 3163), § 113. 1, when the summons is signed and 46. Blackburn v. City of Louisville, sealed in good faith for immediate 31 Ky. Law Rep. 1716, 55 S; W. service, where that purpose is not. 1075. But see MuUins v. Fidelity & afterwards abandoned. Wilson v. Deposit Co. of Baltimore, Md., 30 Clear, 85 N. J. Law 474, 89 Atl. 1031. Ky. Law Rep. 1077, 100 S. W. 256. 50. Landeker v. Property Security Where plaintiflt has filed his peti- Co., 79 Misc. Rep. 157, 140 N. Y. tion, and caused summons to issue, Supp. 745, judg. aff'd 156 App. Div. be could not be prejudiced by a mis- 938, 141 N. Y. Supp. 1128. See Lit- take of the clerk. Casey c. Newport tlejohn v. LefSngwell, 34 App. Div. Rolling Mill Co., 156 Ky. 633, 161 185, 54 N. Y. Supp. 536, holding that S. W. 528. mailing a summons on December 30th 47. Dedenbaoh v. City of Detroit, to an outgoing sheriff, who received 146 Mich. 7101, 13 Detroit Leg. N. it on January 1st, after has succes- 923, 110 N. W. 60. sor was entitled to the office, but be- 48. Heman v. Larkin (Mo. App.), fore he had taken possession or 70 S. W. 907. served the certificate of his quallfica- OoMMEOSrCEMENT OF AcTION, EtC. 1 507 service is not an attempt to commence an action, within the Wiscon- sin statute, suspending limitations where an unsuccessful attempt to commence an action is made.^ § 299(3). Service of process. In Iowa, an action to subject property of a nonresident to the payment of a foreign judgment is commenced, within the statute of limitations, when the property is levied on under a writ of at- tachment, if not before, and the statute then ceases to run.^^ In Missouri, service of process in a suit against an executor on a demand against testator, made within two years after letters testa- mentary, stops the running of limitations, provided the service of process was within the time prescribed by the general statute of limitations.^^ In Nebraska, an action is not commenced within the meaning of the statute of limitations at the date of the issuance of the summons, unless such summons is served on the defendant; where a summons is issued but not served, and the defendant enters a voluntary appearance, the commencement of the action dates from the entry of the appearance.^* Under the express tion, is an attempt to commence an plies to cases in which service may be action, within section 399 of the Code made by publication of the summons. Civ. Proc. 52. Slater v. Roche, 148 Iowa 413, The owner of the premises and a 326 N. W. 925, an action against a contractor for work thereon are not nonresident is not commenced until joint contractors as to a subcontrac- the completion of the process of ser- tor, or " otherwise united in inter- vice by publication, and, where the est," within Code Civ. Proc, § 399, publication was not completed until providing that an attempt to com- after the running of the statute, a mence an action is the commence- personal judgment could not be ren- ment thereof against each defendant, dered, though the nonresident per- when the summons is delivered to be sonally appeared after the claim was served to officers of the county in barred. which one of two codefendants, who 53. Knisely v. Leathe, 256 Mo. 341, are joint contractors or otherwise 166 S. W. 257, under Eev. St. 1909, imited in interest, resides. Martens §§ 190-195. V. O'Neill, 131 App. Div. 123, 115 N. 54. Reliance Trust Co. v. Atherton, Y. Supp. 260. 67 Neb. 305, 96 N. W. 218, 93 N. W. 51. Moulton V. Williams, 101 Wis. 150; Hotchkiss v. Aukermann, 65 236, 77 N. W. 918, under Eev. St. Neb. 177, 90 N. W. 949. 1898, § 4240, since that section ap- 1508 Statutes of LiMiTATioif. provisions of ISTew York Code Civ. Proc, § 398, an action is com- menced, for the purposes of the statute of limitations, when the summons is served.^^ Under Ohio Gen. Code, §§ 11230, 11231, providing that the date of the summons shall be deemed the com- naencement of an action, and an attempt to commence shall be equivalent to a commencement, where plaintiff diligently endea- vors to procure service, there must have been a summons issued prior to the expiration of the period fixed by statute.^^ In Oregon, where in an action on an account, the complaint was filed and the summons delivered to the sheriff for service two days before the expiration of the statutory period, but no service was had or pub- lication begun until ten months thereafter, the action was barred.^'' The Wisconsin statute fixes the service of the summons as a com- mencement of an action.^^ In Texas, in order to stop the running of the statute by the institution of a suit, not only must the peti- tion be filed, but there must be shown a hona fide intention that the process shall at once be served upon the defendant.^' § 299(4). Service on part of defendants. The ISTew York Code Civ. Proc, 398, providing that an action is commenced, within the statute of limitations, when the summons is served on defendant, " or on a codefendant who is a joint con- tractor or otherwise united in interest with him," applies to an action to determine the validity of a will imder section 2653a, Where all the parties are nonresi- & O. R. Co. v. Collins, 11 0. C. D. dents, the issuance of an attachment 334. and levy on real estate within four 57. Dutro v. Ladd, 50 Or. 120, 91 years aifter a fraudulent transfer will Pac. 469. See Smith v. Day, 39 Or. prevent the running of limitations, if 531, 64 Pac. 813, 65 Pac. 1055. the attachment proceedings are fol- 58. Gager v. Paul, 111 Wis. 638, 87 lowed up with a creditors' bill. N. W. 875, under Rev. St. 1898, § Coulson V. Galtsman, 1 Neb. (Unof.) 4239. 502. 59. Faires v. Loessin (Tex. Civ. 55. Metz V. Metz, 45 Misc. Rep. App.), 102 S^ W. 924. A suit is not 338, 90 N. Y. Supp. 340. commenced in justice's court, so as 56. McLarren v. Myers, 87 Ohio St. to toll limitations, until the citation 88, 100 N. E. 121. And see Baltimore is issued. Hooks v. Gulf, etc., Ry. Co. (Tex. Civ. App.), 97 S. W. 516. Commencement of Action^ Etc. 1509 requiring such action to be commenced within two years after probate.^** The service of a summons on one spouse in an action to enforce a mechanic's lien against community property is not the commencement of the action as to the other spouse, unless personal service is had on the latter within two years.^^ Under the South Carolina statute, an action is commenced on the day of issuing the summons, where the same was issued in good faith, and after- wards regularly returned as served on all the defendants, though one of the defendants was not actually served.®^ § 299(5). Substituted service. The JSTew York Code Civ. Proc, § 399, provides that " an at- tempt to commence an action in a court of record is equivalent to the commencement thereof, * * * within the meaning of each provision of this act which limits the time for commencing an action when the summons is delivered with the intent that it shall be actually served to the sheriff * * * followed within sixty days after the expiration of the time limited for the actual com- mencement of the action by personal service," or by the first pub- lication. Substituted service, under sections 435, 437, being of equal force with the other methods in the support given to pro- 60. Croker v. Williamson, 208 N. close a mechanic's lien on a building Y. 480, lOS N. E. 588, aff'g order erected by the purchaser will be Oroker v. Taylor, 154 App. Div. 530, deemed to have been commenced 139 N. Y. Supp. 842. Eeargument against the purchaser by service of denied Croker v. Williamson, 209 N. the summons on his codefendant. Y. 591, 103 N. E. 1123. Moore v. McLaughlin, 11 App. Div. Code Civ. Proc, § 398, also ap- 477, 42 N. Y. Supp. 256. plies to an action on a partnership 61. Powell v. Nolan, 27 Wash. 318, demand against the individual mem- 68 Pac. 389, or by notice by publica- ibers. Bennett v. Watson, 21 App. tion within nine months after the fil- Div. 409, 47 N. Y. Supp. 569. Part- ing of the complaint within two ners are, as to a firm note, "joint years; the action in the latter case contractors," Howell v. Dimock, 15 being deemed to have been commenced App. Div. 102, 44 N. Y. Supp. 271. on the filing of the complaint. Vendor and purchaser in an execu- 62. Montague v. Stelts, 37 S. C. tory contract for the sale of a lot are 200, 15 S. E. 968, 34 Am. St. Rep. not "united in interest," so that an 736. action brought against both to fore- 1510 Statutes op Limitation. ceedings based thereon, is equivalent tkereto, and, if liad within the sixty days specified, will take the case out of the statute of limi- tations.^^ Acceptance of citation by a curator ad hoc of an absent defendant will not interrupt prescription as to the latter. The waiver allowed by Louisiana Code Prac, art. 177, can only be made by defendant personally, or an attorney whom he has employed.^* § 299(6). Subsequent, alias, or pluries process. Under the Kansas statute, where a petition is filed and sum- mons issued thereon, though service is not obtained, but an alias summons is issued and properly served within sixty days, the action will be deemed to have been commenced when the petition was filed.^^ In Pennsylvania, where in an action on a note, a summons was issued within six years from maturity of the note and returned " ISTot found," and vsdthin six years from such return an alias summons was issued, and also returned " IN'ot found," and a pluries summons was also returned served after six years from the return day of the original process, but within six years from the return of the alias summons, the action was not barred by limita- tions.''^ In Illinois, where a suit was begun and summons taken out, within the period of limitations, but was not put into the hands of the sheriff, nor was the declaration filed, and an alias summons, which was the one served on defendant, was not issued, nor was the declaration filed, imtil after the bar of the statute of 63. Clare v. Lockard, 123 N. Y. Under Code Civ. Proc, § 19 (Gen. 363, 25 N. E. 391, 9 L. R. A. 547, 3 St. 1909, § 5612), where an alias N. Y. Supp. 646, 16 N. Y. St. Rep. summons was issued and served more 739; Cla/rk v. Lockard, 13 Civ. Proc. than 60 days after confession of a mo- R. 278, 21 Abb. N. C. 173. tion to set aside a summons, the ac- 64. Hill V. Barlow, 6 Rob. (La.) tion was not begun until the date of 142. Service by handing citation to the alias summons. Brock v. Fran- a person in charge of defendant's cis, 89 Kan. 463, 131 Pac. 1179. plantation held sufScient to interrupt 66. Bovaird & Seyfang Mfg. Oo. v. prescription. Sharp v. MoBride, 134 Ferguson, 315 Pa. 235, 64 Atl. 513. La. 349, 63 So. 893. And see Rees v. Clark, 213 Pa. 617, 65. German Ins. Co. v. Wright, 6 63 Atl. 364; In re O'Neill's Estate, Kan. App. 611, 49 Pac. 704, under 29 Pa. Super. Ct. 415; Magaw v. Gen. St. 1889, § 4097. ' Clark, 6 Watts (Pa.) 528. COMMEtNCEMENT OF ACTION, E.TC. 15111 limitations had arisen, the suit was begun by the issuing of the first summons, and was not barred.^^ In Michigan, the failure to take out the second summons for more than two months after the return of the first summons was held to interrupt the continuity of the action. «« Under the New York Code Civ. Proc, § 2883, providing that, where it appears by the return of the constable to whom a summons was issued for service that it was not served, a second summons may be issued, and, on a like return thereof, a third summons may be issued, and that the second or third sum- mons, as the case may be, relates back to the time when the first summons was issued, a third summons does not relate back un- less the first and second were not served on defendant.^^ In Vir- ginia, the suing out of the writ being the commencement of the action, where a writ issued contrary to the statute is quashed, and a new writ ordered, and served, the commencement of the action, so far as relates to the statute of limitations, dates from the issu- ance of the new writ.™ In the federal courts it has been held that, where there was a bona fide attempt by the marshal to make the service of a subpoena, and reasonable diligence was used in that behalf and in the issuance and service of the alias subpoena, for the purpose of arresting the running of limitations, the suit was commenced on the date of the filing of the bill.''^ 67. McKee o. Allen, S4 III. App. -• In Louisiana, it has been held that, 147. See also Schroeder v. Merch- though the first citation was defec- ants' & Mechanics' Ins. Co., 104 111. tive, the original service of papers 71. upon the mayor of a town in an ac- 68. Colling V. McG-regor, 144 Mich. tion against the town, interrupted 651, 15 Detroit Leg. N. 310, 108 N. prescription on the claim. Gueble v. W. 87. And see Johnson v. Mead, 58 Town of Lafayette, 118 La. 494, 43 Mich. 67, 24 N. W. 665. So. 63; 69. Finan v. O'Dowd, 6 App. Diiv. 71. United States v. Miller, 164 268, 40 N. y. Supp. 9'69, 75 St. Rep. Fed. 444 (C. C, Or.). See Armstrong 371. Cork Co. v. Merchants' Refrigerating And see Quick v. Leigh, 59 Hun Co., 171 Fed. 778 (0. -C, Mo.), 616, 12 N. Y. Supp. 616, 20 Civ. Proc. wherein proceedings were held insuf- E. 147. fioient to constitute commencement of 70. Noel V. Noel, 93 Va. 433, 25 S. suit to foreclose a mechanics' lien, E. 243. within the required time. 1512 Statutes of Limitation. § 300. Want of jurisdiction. The running of the limitation of actions against JSTew York City by Greater New York Charter, § 261, is not suspended under Code of Civil Procedure, § 405, by the commencement of an action in the City Court, of -which it had no jurisdiction.''^ In Georgia, a suit brought in a court having jurisdiction of the subject matter though not of the person is not void, and, when the petition therein is seasonably served, tolls the statute.'* A receiver appointed and residing in another State cannot sue in Texas; and hence, where a suit was brought by such a receiver in Texas, solely by virtue of the foreign appointment, "and the insolvent filed an amended complaint on the termination of the receivership, limitation ran against the cause of action until the amended complaint was filed.''* In Louisiana, the fact that the court in which a suit was brought had not jurisdiction does not defeat the effect of bringing suit as an interruption of prescription;''^ but a citation judicially held to be absolutely null, because defendant, a mai'ried woman, was not previously authorized to stand in judgment in the absence of her husband, is not sufficient to interrupt prescription running in favor of defendant.''^ In Texas, where the trial court has absolutely no jurisdcition under the pleadings, the filing of the petition cannot interrupt the running of limitations on the cause of action.'''' § 301(1). Defects as to parties in general. The commencement of an action against one person or corpora- tion upon a cause of action against another person or corporation 72. Gaines v. City of New York, See Ealer v. Lodge, 36 La. Ann. 115. 215 N. Y. 533, 109 N. E. 594, aff'g 76. Bertrand v. Knox, 39 La. Ann. judg. 142 N. Y. Supp. 401, 156 App. 431, 2 So. 63. Div. 789, aff'g judg. 137 N. Y. Supp. 77. Pecos & N. T. Ey. Co. v. Eay- 964, 78 Misc. Rep. 126. zor (Tex.), 173 S. W. 1103. 73. Atlanta, K. & N. Ey. Co. v. Where a petition is susceptible of Wilson, 119 Ga. 781, 47 S. E. 366. two constructions, it is to be con- 74. Kellogg v. Lewis, 16 Tex. Civ. strued so as to give tlie court jurisdic- App. 668, 40 S. W. 323. tion of the suit, so that filing the pe- 75. Sorrell v. Laurent, 27 La. Ann. tition would interrupt the running of 70; Levy v. Calhoun, 34 La. Ann. 413. limitations. Id. OoMMElSrCEMENT O]? ACTION^ E.TC. 1513 does not arrest the running of the statute of limitations against the latter.™ The institution of an action against a concern alleged to be a corporation, but which was in fact a partnership, was not the commencement of an action against the individual owners and operators of such concern, so as to suspend the running of limita- tions as to them.''^ Where a corporation, knowing itself to be the wrongdoer which plaintiff intended to sue, answers ostensibly for a corporation mistakenly sued, the statute of limitations will cease to run from the time the real defendant appears and answers in the name of the nominal defendant.^" Under the Tennessee stat- ute, permitting ejectment against one in actual possession or against one claiming or exercising acts of ownership, the action is maintainable against one in possession as servant by a claimant having no knowledge of the relationship, and stops the running of limitations, and complainant may make the owner a party .^^ Where an action was brought against a corporation, but individuals forming a partnership having the name of the corporation ap- peared, stating the partnership and its members and answered by demurrer and general denial within two years from the time of the accrual of the cause of action, the action was pending from the time of the answer, within the statute of limitations.^^ 78. Proctor v. Wells Bros. Co. of the statute. Boughner v. Sharp, 144 New York, 263 111. 77, 104 N. E. 186, Ky. 330, 138, S. W. 375. The running afF'g judg. 181 111. App. 46i8. of the statute of a year for an action A mere change in parties, plaintiflF for death is not stopped by the com- er defendant, does not of itself change mencement of an action by the public the cause of action, so as to make administrator, under a reference to the defense of the statute of limita- him of the estate, premature under tions available. Chesapeake & O. Ry. Ky. St., § 3905. Fentzka's Adm'r v. Co. V. Fish, 170 111. App. 359 ; Hough" Warwick Const. Co., 163 Ky. 580, 173 land V. Avery Coal & Mining Co.,sl53 S. W. 1060. 111. App. 573, 246 111. 609, 93 N. E. 80. Boehmke v. Northern Ohio 40; Stephens v. Collison, 249 111. 235, Traction Co., «8 Ohio St. 156, 103 N. 94 N. E. 664. E. 700. 79. Geneva Cooperage Co. v. Brown, 81. De Garmo v. Prater, 125 Tenn. 30 Ky. Law Rep. 372, 98 S. W. 379. 497, 146 S. W. 144. The bringing of action on a cause 82. Law Reporting Co. v. Texas of action belonging to none of the Grain & Elevator Co. (Tex. Civ. parties does not stop the running of App.), 168 S. W. 1001. 1514 Statutes op LiMiTATioif. § 301(2). Amendment of defects. Where a person was sued by the name of John Doe, and his real name was thereafter substituted in the complanit, but not before the statute of limitations had run against the claim, recovery could nevertheless be had, since tbe defendant was a party to the action from its commencement.** A mere change in a party to a suit does not of itself change the cause of action, or ground of recovery, and, unless the cause of action is a new one, an amended declara- tion is not subject to the statute of limitations.** An amendment of a petition in an action for damages, by adding the name of a party plaintiff, made more than two years after the cause of ac- tion accrued, relates back to the date of the commencement of the action, and the cause of action is not for that reason barred by Where a, suit was brought against a corporation, which filed an answer in the corporate name, and subse- quently an individual appearei and answered, alleging that she did busi- ness in the name ot the corporation, and that there was no corporation, the commencement of the action stop- ped the running of limitations. Pick- ering Mfg. Co. V. Gordon (Tex. Civ. App.), 168 S. W. 14. See also, as to defects of parties: Southern Contract Co.'s Assignee v. Newhouse, 119 Ky. 704, 23 Ky. Law Rep. 2141, 66 S. W. 730; Prichard v. MoCord-ColIins Co., 30 Tex. Civ. App. 582, 71 S. W. 303; MoCord-CoUins Co. V. Pritohard,, 37 Tex. Civ. App. 418, 84 S. W. 388. 83. Hofifman v. Keeton, 132 Cal. 195, 64 Pac. 264. See also Pox v. Hale & iN^orcross Silver Min. Co. (Cal.), 53 Pac. 32. 84. Wilcke v. Henrotin, 241 111. 169, 89 N. E. 329, the amendment to the declaration by inserting the word "as" after the name of the defendant and before the word " receiver" did not set up a new cause of action, and was not subject to the statute of lim- itations. Where an action is brought against several defendants as joint tort feas- ors, and, after the running of limita- tions, plaintiflf amends his declaration by eliminating the names of two of the defendants, the amended declara- tion does not present such a new cause of action as to be subject to the bar of the statute. Eoss v. Shanley, 185 111. 390, 56 N. E. 1105, aff'g judg. 86 111. App. 144. Service of summons upon" the proper party defendant, though under the wrong name, is suflBcient to toll the statute. The power of amendment, however, does not extend to the length of substituting another defend- ant in lieu of the defendant answer- ing and before the court, since sucli other defenda.nt can be brought in only by summons, and the suit is not begun as to him until summons for him is issued. Proctor v. Wells Bros. Co. of ISTew York, 262 111. 77, 104 N. E. 186, aff'g judg. 181 111. App. 468. OoMMEIirOEMENT OP ACTION^ EtC. 1515 limitations.^^ In an action against the American Fire Insurance Company, tlie omission of the word " fire " in the petition and summons does not render the action ineffectual to stop the running of limitations, though the omission is not cured by amendment until after the expiration of the statutory period.*^ Where limi- tations have run, amendments introducing a new cause of action, or bringing in a new party or changing the capacity in which he is sued, will not be allowed.*^ Where plaintiff, doing business under the name " Kansas City View Company," a nonexistent corporation, brought suit in that name, it was proper for the court, after the running of limitations, to permit an amendment of the title substituting plaintiff's individual name, followed by the words " doing business as Kansas City View Company.'"^ A 85. HucklebrLdge v. Atchison, etc., Ey. Ck)., 66 Kan. 443, 71 Pac. 814. 86. American Fire Ins. Oo. v. Bland, 19 Ky. Law Eep. 287, 40 S. W. 670. An amendment striking out a mid- dle initial in the name of defendant sued on a guardian's bond does not change the character of the action so as to render limitations available that were not so at the commencement of the action. State v. Eeilly, 89 Md. 163, 43 Atl. 58. Where a corporation, sued by the wrong name, has answered to the mer- its, that an amendment inserting its correct name was granted after the cause of action sued on would be bar- red by limitations was immaterial. Sentell v. Southern Ey. Co., 67 S. C. 229, 45 S. E. 155. 87. Mumma T. Mum ma, 246 Pa. 407, 93 Atl. 504; Girardi v. Laquin Lumber Co., 233 Pa. 1, 81 Atl. 63, and where suit wag brought against the " Laquin Lumber Company, a corpor- ation," the record cannot be amended, after limitations had run, to name as defendant a partnership composed of six persons trading as the Laquin Lumber Company. Where a corporation known as the copper " works " was sued by the wrong name, copper " company," an amendment to the record by striking out the word " company " and insert- ing the word " works," should have been allowed. Wright v. Eureka Tem- pered Copper Co., 206 Pa. 274, 55 Atl. 978. 88. Bowen v. Buckner, 171 Mo. App. 3«4, 157 S. W. 829. An amendment by which one of sev- eral codefendants sued as partners, was dropped from the case, but leav- ing the case to stand against the re- maining defendants as partners, does not change the cause of action, so as to permit the, intervention of the stat- ute of limitations. St. Charles Sav- ings Bank v. Edwards, 243 Mo. 553, 147 S. W. 978. Where a complaint against the M. Mill Company, a corporation, was amended by substituting as defendant V. J. H., doing business under the 1516 StATTTTES of LlMITATIOIf. petition against one defendant alone, iiled on appeal more than two years after the filing of the original suit, and stating that this defendant was an equal joint owner of the lot sold and liable for one-half of the commission sued for, did not set up a new cause of action, and hence was not defeated by a plea of limitations.*' § 302. Defects or irregularities in process or service. Where, on a praecipe in trespass, the prothonotary by mistake issued a summons in assumpsit, the court may allow the record to be amended to show an action in trespass after the statutory period within which to bring such action had expired.'" Where the city clerk was the proper officer on whom to serve the declaration in name of the M. Mill Company, the statute of limitations was no defense where V. J. H. and the mill company were the same person. Manistee Mill Company v. Hohdy, 165 Ala. 411, 51 So. 871. 89. Grayson v. Hollingsworth (Tex. Civ. App.), 148 S. W. 1135. Where defendant corporation, sued in the wrong name, voluntarily an- swered to the merits, it could not plead limitations after plaintifiF had corrected the misnomer. Forbes Bros. Teas & Spice Co. v. McDougle, Cam- eron & Webster (Tex. Civ. App.), 150 S. W. 745. See also, as to amendments of de- fects as to parties: Iowa. — Padden v. Clark, 134 Iowa, 04, 99 N. W. 152, wherein an amend- ment was held not so materially dif- ferent from the original cause of ac- tion as to render limitations a de- fense. Nel). — Haas v. Mutual Life Ins. Co. of New York, 90 Neb. 808, 134 N. W. 937, wherein the amendment of a, pe- tition, summons, and return after the expiration of the period of limitation. in an action commenced within the period, was held proper and to relate back to the service of the summ'ous. Tex. — Martinez v. Dragna (Tex. Civ. App.), 73 S. W. 435; Texas Mid- land K. E. V. Cardwell (Tex. Civ. App.), 67 S. W. 157; Grand Lodge A. 0. U. W. of Texas v. Bollman, 2S Tex. Civ. App. 106, 53 S. W. 839; Bickford v. Refugio Land & Irriga- tion Co. (Tex. Civ. App.), 143 S. W. 1188. 90. Wilkinson v. Northeast Bor- ough, 315 Pa. 486, 64 Atl. 734. Where, in an action on a, municipal lien, a scire facias, issued within the time prescribed by law, proved inef- fective because not served a.ccording to law, and the statutory period closed with the return of the writ, the lien was wholly lost, and defendant's gen- eral appearance to an alias scire facias, issued after the expiration of the statutory period, could not supply the existence of a legal claim to sup- port such a scire facias, without which any action of the court would be a mere nullity. City of Scranton V. Genet, 333 Pa. 373, 81 Atl. 335. Commencement of Action, Etc. 1517 an action against the city for personal injuries, service on a clerk in the office of the corporation counsel was a nullity, and did not stay the running of the statute of limitations.^^ Where a judicial demand has been served on the right person and conveys full in- formation, a slight error in the description of the person intended to be sued which could mislead no one will not prevent its interrupt- ing the prescription of the claim demanded.'^ Where, in an action for money only, the praecipe omitted to direct the clerk of the court to indorse on the summons the amount for which judgment would be taken on default, and the summons served bore no such indorsement, an amendment, by leave of court, allowing such in- dorsement and the service of an alias summons, will not relate back to the time of the original summons so as to stop the running of limitations.^^ A rendition of a judgment in favor of the receiver of an insolvent national bank against a guardian for the amount of an assessment on shareholders to pay debts, on which execution was directed to issue against the estate of the ward, even if con- strued as a personal judgment, if obtained by fraud or rendered without service of process, was equivalent to no judgment, and the statute of limitations would apply .^* A summons issued in the name of an agent not an attorney, and requiring service of an answer on him, was allowed to be amended, where the statute of limitations would defeat the claim if the amendment were de- nied.''^ 91. Boyle v. City of Detroit, 152 bear the impress of the seal of the Mich. 248, 15 Detroit Leg. N. 136, 115 court. King v. Guynes, 118 La. 344, N. W. 1056. 43 So. 959 ; Adams v. Guynes, 118 La. 92. Babin v. Lyons Lumber Co., 133 348, 42 So. 960. La. 873, 61 So. 855. Prescription is not interrupted Prescription is not interrupted by where the citation is not signed by the service of citation on Satui-day the clerk, as provided by Code Prae., afternoon, a day of public rest, under art. 179. Schwartz v. Lake, 109 La. Acts 1904, No. 3. Eady v. Fire Ins. 1081, 34 So. 96. Patrol of New Orleans, 126 La. 273, 93. Elmen v. Chicago, B. & Q. R. 53 So. 491. Co., 75 Neb. 37, 105 N. W. 987. The service of citation with a copy 94. Qark v. Ogilvie, 111 Ky. 181, of the petition interrupts prescrip- 33 Ky. Law. Rep. 553, 63 S. W. 429. tion, though the citation does not 95. Weir v. Slocum, 3 How. Prac. 1518! Statutes ob Limitation, § 303. Defects or irregularities in pleadings or other proceedings. The filing of a complaint defective only in that it is neither signed by the plaintiff nor his attorney tolls the running of the statute.^^ A petition, in a widow's action for the negligent kill- ing of her husband by a train, was sufficient to constitute a com- mencement of the action within the statute of limitations, though it failed to allege that deceased was a nonresident and that by the laws of the State of his residence the widow was the only person entitled to bring the action.^' The fact that when plaintiff cor- poration sued on notes it was not legally entitled to sue under the statute, because it had not paid its franchise tax, would not cause the action to be barred by the four-year limitation, though before an amended petition was filed showing compliance with the statute more than four years had elapsed since maturity of the last note.'* An action was commenced when the petition was filed and the summons issued, although the petition was not vertified until subsequently.'^ Where an original petition, while it would have been open to attack by a special demurrer, was good on general demurrer, it stopped the running of limitations.-'- (N. Y.) 397. See also, as to defects filed. Houston & T. 0. K. Co. v. Fife or irregularities in process or service: (Tex. Civ. App.), 147 S. W. 1181. Bruen v. Bokee, 4 Denio (N. Y.) 56, 98. Clegg v. Roscoe Lumber Co. 47 Am. Dec. 339; Vandenburgh v. (Tex. Civ. App.), 161 S. W. 944, uu- 3 B.OW. Prac. (N. Y.) 316. der Rev. St. 1911, art. 7399. 96. Canadian Bank of Commerce v. 99. City of Dayton v. Hirth, 131 Leale, 14 Cal. App. 307, 111 Pac. 759. Ky. 43, 27 Ky. Law Rep. 1309, 87 S. 97. Robinson v. Chicago, R. I. & W. 1136. P. Ky. Co., 90 Kan. 436, 133 Pao. 1. Schmidt v. Brittain (Tex. Civ. 537. App.), 84 S. W. 677. Where a passenger on a train -was And see generally as to defects or injured, the filing of a petition pray- irregularities in pleadings or other ing a recovery of damages for such proceedings; Chambers v. Talladega injuries stopped the running of lim- Real Estate & Loan Ass'n, 12i6 Ala. itations, even though the petition -was 396, 28 So. 636; Missouri Pac. Ry. defective in failing to allege that the Co. v. McCarthy, 97 Mo. 314, 11 S. W. action was maintainable only under 52; Howard v. Windom, 86 Tex. 560, a foreign statute, and that fact was 26 S. W. 483; Smith v. Farmers' Loan supplied by an answer filed long after & Trust Co., 31 Tex. Civ. App. 170, the period of limitation would have 51 S. W. 515. expired had not the 'petition been Commencement ob Action, Etc. 1519 § 304. Intervention or bringing in new parties. The addition of a coplaintiff does not change the cause of action.^ As to persons becoming parties to a pending suit by intervention, the suit is to be regarded as having been commenced at the time of their intervention.^ Where an action in tort for injury to per- sonalty is barred, it is thereafter too late for one sued on a con- tract to vouch another into court liable to him in tort.* A proceed- ing to contest a will commenced within two years after probate inures to the benefit of a party who intervenes after the statutory period, and the statute of limitations is not available as a defense to the intervening petition.^ Where a mortgagee was not made a party to a suit to foreclose a mechanic's lien until after the expria- tion of the year for filing the complaint, the statutory bar was com- plete, and it was not avoided by the filing of an amended com- plaint making the mortgagee a party.® Where a father sues to recover for the death of his son, and it appears that the son died within a few hours after the accident and was unmarried, the rec- ord may be amended, after one year from the death of the son, by adding the name of his mother as a party plaintiff.'' Under the Civil Code of Lower Canada, giving in case of wrongful death a right to decedent's consort and his ascendant and descendant rela- tions, but only for a year after his death, to recover therefor, but providing that no more than one action can be brought in behalf of those entitled to indemnity, and that the judgment shall de- termine the proportion of such indemnity which each is to re- ceive, the right given such persons being individual and personal, and the action being several, and not joint, the action being brought 2. Price v. Goodrich, 141 111. App. 4. Raleigh & G. E. Co. v. Western 568 ; Cousar v. Heath, 80 S. C. 466, & A. R. Co., 6 Ga. App. 616, 65 S. E. 61 S. E. 973. Nor the substitution 586. of a third party for the original 5. Maurer v. Miller, 77 Kan. 92, 93 plaintiff. State Bank of Gothenburg Pac. 596; Lyons v. Berlau, 67 Kan. V. OarroU, 81 Neb. 484, 116 N. W. 42.6, 73 Pac. 62. 276. e. Ward v. Yarnelle, 173 Ind. 535, 3. Mason v. City of Chicago, 163 91 N. E. 7. 111. 351, 45 N. E. 567. 7. Sontum v. Mahoning & S. Ry. & Light Co., 226 Pa. 230, 75 Atl. 189. 1520 Statutes of Limitation. by the consort only, the others may not be made plaintiffs after the end of the year.* New parties cannot be brought in after the stat- ute of limitations has become a bar.^ Where parties are brought in by amendment, the suit as to them is begim when the amend- ment is filed.^" 8. Johnson t. Phoenix Bridge Co., 197 N. Y. 316, 90 N. E. 953, modify- ing order 118 N. Y. Supp. 88. 9. Bender v. Penfield, 235 Pa. 58, 83 Atl. 585; Wright v. Eureka Tem- pered Copper Co., 206 Pa. 274, 55 Atl. 978. 10. Hiller v. Schulte, 184 Mo. App. 43, 167 S. W. 461, in a suit to en- force a mechanic's lien, new parties defendant cannot be brought in by amendment so as affect their rights after the expiration of 90 days from the filing of the lien. 6ee also, as to intervention or bringing in new parties: Arh. — Less v. English, 75 Ark. 288, 67 S. W. 447. Gal. — John Bollman Co. v. S. Bach- man & Co., 16 Cal. App. 589, 117 Pac. 690; Harrison v. McCormick, 122 Cal. 651, 55 Pac. 592. Ga. — Taylor v. James, 109 Ga. 327, 34 S. E. 674. III. — Houghland v. Avery Coal & Mining Co., 246 111. 609, 93 N. E. 40, aff'g judg. Stevenson v. Same, 152 111. App. 565; Hougland v. Same, Id. 573; Knickerbocker v. Benes, 195 111. 434, 63 N. E. 174, aff'g judg. 93 111. App. 305; Hosier v. Flanner-Miller Lumber Co., 66 111. App. 630. Kan. — ^Anderson v. Atchison, etc., R. Co., 71 Kan. 453, 80 Pac. 946; Western Sash & Door Co. v. Heiman, 65 Kan. 5, 68 Pac. 1080; Toby v. Al- len, 3 Kan. 399. Ky. — Nunn v. City of Louisville, 31 Ky. Law Rep. 1293, 105 S. W. 119; Walker's Ex'r v. Luxon's Adm'r, 138 Ky. 14, 127 e. W. 489; City of Lou- isville V. Jacob, 27 Ky. Law Eep. 175, 84 S. W. 722; City of Louisville v. Kohnhorst's Adm'x, 25 Ky. Law Eep. 532, 76 S. W. 43. La. — Geisenberger v. Cotton, 116 La. 651, 40 So. 929. Mich. — iCasserly v. Waite, 124 Mich. 157, 7 Detroit Leg. N. 143, 83 N. W. 841, 83 Am. St. Rep. 320. Miss. — State v. Woodruff, 81 Miss. 456, 33 So. 78. Mo. — iRumsey & Sikimeier Co. v. Pieffer, 108 Mo. App. 486, 83 S. W. 1037; City of St. Joseph ex rel. For- see V. Baker, 86 Mo. App. 310; Jaicks V. Sullivan, 128 Mo. 177, 30 S. W. 890. • N. Y. — Brinkerhoof v. Bostwick, 34 Hun 352. R. I. — ^Taylor v. Superior Court, 30 R. I. 560, 76 Atl. 644. rea!.— Trinity &. V. Ry. Co. v. Doke (Tex. Civ. App.), 152 S. W. 1174; El Paso & S. W. R. Co. V. Harris & Liebman (Tex. Civ. App.), 110 S. W. 145; Bean v. Dove, 33 Tex. Civ. App. 377, 77 S. W. 242; Cable v. Jackson, 16 Tex. Civ. App. 579, 42 S. W. 136. Wash. — Northwest Bridge Co. v. Tacoma Shipbuilding Co., 36 Wash. 333, 78 Pac. 996. W. Va. — Jackson's Adm'r v. Hull, 31 W. Va. 601. Wis. — Webster v. Pierce, 108 Wis. 407, 83 N. W. 938; Levy v. Wilcox, 96 Wis. 127, 70 N. W. 1109. COMMEITCEMENT OF AcTION^ EtO. 1521 § 305. Substitution of parties. The amendment of the petition in an action by the sole sur- viving parent in her individual capacity to recover for the death of her unmarried son, without stating new facts, setting up the Employer's Liability Act April 22, 1908, is not the commencement of a new action within the two-year limitation prescribed by that statute. -^^ _ Where an action to enforce pledged securities was prop- erly brought by the pledgor before limitations had run, and pending suit, the securities were absolutely assigned to the pledgee, who was thereupon substituted as plaintiff by an amendment of the complaint after the limitation period had expired, the amendment 11. Missouri, K. & T. Ey. Co. v. Wulf, 236 U. S. 570, 33 Sup. Ct. 135, 57 L. Ed. 355, afif'g judg. 193 Fed. 919, 113 C. C. A. 665. A recovery under the Employer's Liability Act April 23, 1908, and sup- plements, for the death of an em- ployee of a railroad company, is for the benefit of the surviving spouse and children, and, if none, for the par- ents, and the personal representative is only a nominal party; and where decedent left no widovy or children, but parents, the parents, under the act and Purdou's Dig. Pa. (13th Ed.), p. 3338, were the sole beneficiaries, and where they brought in their in- dividual names an action within the statutory time they could be substi- tuted as plaintiffs in their represent- ative capacity. Bixler v. Pennsyl- vania R. Co., 201 Fed. 553 (U. S. D. C). Change of the capacity in which plaintiff sued for the wrongful killing of his son from that of an individual to that of his son's administrator, as required by Civ. Code Cal., § 1970, IS not the commencement of a new suit, and was properly allowed by 96 amendment, under Rev. St., § 954 (U. S. Comp. St. 1901, p. 696), though the time within which a new action could have been brought had expired. Rear- don V. Balaklala Consol. Copper Co., 193 Fed. 189 (U. S. C. C). Under the Tennessee statute relat- ing to actions for wrongful death (Mill. & V. Code, §§ 3130-3134), a suit in behalf of one beneficiary is a different suit from one in behalf of another, and an amendment of a dec- laration changing the beneficiary is in effect the beginning of a new suit, and is subject to a plea of limita- tions as such. Atlanta, K. & N. Ry. Co. V. Hooper, 90 Fed. 820, 35 C. C. A. 24. But see, to the contrary, Hooper v. Atlanta, K. & N. Ry. Co., 107 Tenn. 713, 65 S. W. 405. Where the court allowed the peti- tion to be amended by substitution of the name of the State, such amend- ment made no change in the cause of action, or, in fact, in the real parties; it related back to the commencement of the action for the purposes of the sta,tute of limitations. McDonald v. State of Nebraska, 101 Fed. 171, 41 C. C. A. 278. 152.2 Statutes of Limitation. did not constitute a new action, and tlie action was therefore not barred.^^ A mere change in a party to a suit does not of itself change the cause of action, unless the cause of action is a new one, and the amended declaration is not subject to the statute of limi- tations/^ An amendment of a petition substituting one party for another as plaintiff relates to the institution of the action and suspends limitations as to the substituted plaintiff from the time the action was begun and not from the date of the amend- ment.^* Where plaintiff sued for injuries, and pending the suit the defendant corporation leased its property to another corpora- tion, which assumed all obligations and liabilities of defendant, and plaintiff was allowed to amend her writ by substituting the lessee corporation, the fact that at the time of the amendment the action would have been barred by limitations, if no suit had been brought, did not prevent the allowance of the amendment.^^ Under New York Code Civ. Proc, §! 723, authorizing the court at any stage of the action, in furtherance of justice, to amend any process or pleading, by adding or striking out the name of a person as a party, or by correcting a mistake in any respect, or where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proven, the cause of action for wrongful death being given decedent's 12. Merced Bank v. Price, 9 Cal. Ry. C5o., 186 Mass. 150, 71 N. E. 317. App. 177, 9'8 Pac. 383. Under the Massachusetts statute. 13. Beresh v. Supreme Lodge where, pending an action ag Knights of Honor, 255 111. 123, 99 partners on a contract, one of them N. E. 349, aflf'g judg. 166 111. App. dies, and the administrators of his 511; Haldeman v. Schuh, 109 111. App. estate appear to defend, the court may 259. permit the plaintiff to amend by dis- 14. Harlan v. Loomis, 92 Kan. 398, continuing as to the other defendant, 140 Pac. 845; Service v. Farmington and then allowing the action to pro- Sav. Bank, 63 Kan. 857, 63 Pac. 670. ceed against the administrators, A mere order of revivor is sufficient to though at the time of such discon- prevent the running of limitations. tiuuance the special statute of limi- McLean v. Parker, 88 Kan. 717, 139 tations would have run against such Pac. 1140; Kansas City, etc., R. Co. administrators, but for their appear- V. Menager, 59 Kan. 687, 54 Pac. ance. Philadelphia & R. Coal & Iron 1043. Co. V. Butler, 181 Mass. 468, 63 N. E. 15. McLaughlin v. West End St. 049. Commencement of Action^ Etc. 1523 spouse individually and personally, and she having sued as his administratrix, amendment may be allowed before trial, though after expiration of the year for bringing the action, by striking from the summons and complaint the vrords indicating the bring- ing of the action in a representative capacity.^^ An amendment will not be allowed after a cause of action against an executor for decedent's negligence has been barred, making the executor a de- fendant individually as the sole devisee under decedent's will." 16. Johnson v. Phoenix Bridge Co., 197 N. Y. 316, 90 N. E. 953, modify- ing order 133 App. Div. 807, 118 N. Y. Supp. 88. See Bowen v. Phoenix Bridge Co., 134 App. Div. 22, 118 N. Y. Supp. 93; Smith v. Phoenix Bridge Co., 134 App. Div. 909, 118 N. Y. Supp. 95. Under the rule that the court may permit an amendment changing the capacity in which defendants are sued even if an action is barred by limita- tions, plaintiflF, in a suit against de- fendants as executors, may, after the running of limitations, convert the action into an action against defend- ants individually as to those defend- ants personally served with process, but not as to a defendant not served. Helling v. Boss, 121 N. Y. Supp. 1013. Where one was sued as trustee of the estate of a decedent for injuries sustained by plaintiff while examin- ing a building being erected by de- fendant as trustee of the estate, an amendment of the complaint, whereby the action proceeded as against the defendant individually, did not amount to the bringing in of a new party, and hence limitations ceased to run against the action when the suit was first commenced and not when the amendment was made. Boyd V. United States Mortgage & Trust Co., 187 N. Y. sea, 79 N. E. 999, aff'g judg. 95 N. Y. Supp. 1115, 88 N. Y. Supp. 2189, 94 App. Div. 418. And see Kerrigan v. Peters, l'0i8 App. Div. 292, 95 N. Y. Supp. 723. 17. Bender v. Penfield, 235 Pa. 58, 83 Atl. 585. Where a widow sued a railroad company in her own right to recover for the death of her husband, killed' in New Jersey while in the employ of defendant company, it was too late to amend by adding the name of the widow as executrix of the deceased, as required by the New Jersey stat- ute, after limitations had become a 'bar. La Bar v. New York, ,S. &. W. R. Co., ai8 Pa. 261, 67 Atl. 413. In an action to recover damages for personal injuries against an electric railway company, a motion to amend by striking out the name of defend- ant and substituting the name of an- other as its lessee will be denied, where limitations have become a bar. Coyne v. Lakeside Electric Ey. Co., 227 Pa. 496, 76 Atl. 224. See also, as to substitution of par- ties. Ariz. — ^Motes v. Gila Val., G. & N. Ey. Ck)., 8 Ariz. 50, 68 Pac. 532. Ark. — ^Buck v. Diajvis, 64 Ark. 345, 42 S. W. 534. Colo. — ^Cochrane v. Parke]^, 12 Colo. App. 169, 54 Pac. 1027. Fla.—ToM V. Louisville & N. R. 1524s Statutes of Limitation. § 306. Effect as to persons not parties. The bringing of a suit for the cancellation of a patent to land does not suspend the running of limitations in favor of a grantee, who purchased prior to the suit, until he is made a party.^^ An action by a tenant of an abutting owner against an elevated railroad for injuries to easements, brought within twenty years after the commencement of the operation of the railroad, does not interrupt the running of limitations against the owner, and he cannot after the expiration of more than twenty years from the commencement of the operation of the railroad maintain an action for injury to easements.^^ Where, in a suit to foreclose a mortgage, one who had purchased the property was not made a party, the suit having been commenced against the mortgagors within the period of limi- tations, the purchaser could not avail himself of limitations as against the foreclosure.^* Where a second mortgagee was not made Co. (Fla.), 67 So. 41, in an agent's action in tort for injury to his principal's shipment, a refusal to permit the principal to be substituted as plaintiff after limitations bad run was not error. Mo. — Gewe v. Hanszen, 85 Mo. App. 136; McFaul v. Haley, 166 Mo. 56, 65 S. W. 995. NeJ). — Tecumseb Nat. Bank v. Me- Gee, 61 Neb. 709, 85 N. W. 949. Pa. — ^Comrey v. East Union Tp., 203 Pa. 442, 51 Atl. 1025. 18. United States v. Cooper, 217 Fed. 846. Where suit is brought by a mail contractor, who has sublet a portion of his contract, to recover extra pay for services " dispensed with " before termination of the contract, the stat- ute of limitations ceases to run as to all the parties interested at the time of the bringing of the suit. Garman V. United States, 34 Ct. CI. (U. S.) 237. 19. Goldstrom v. Interborough Rapid Transit Co., 115 App. Div. 323, 100 N. Y. Supp. 911. Under Code Civ. Proc, § 1937, pro- viding that, after judgment against joint debtors, an action may be main- tained against one or more of the de- fendants, who were not summoned in the original action, to procure a judg- ment charging his property with the sum remaining unpaid on the original judgment, in an action under the statute, a defense that the action was not brought within six years after the original cause of action had accrued was not available, where it did not exist when the former action was brought. Hofferberth v. Nash, 50 Misc. Rep. 328, 93 N. Y. Supp. 684, rev'd 117 App. Div. 284, 103 N. Y. Supp. 317. And see Kramer v. Schatz- kin, 27 Misc. Rep. 206, 57 N. Y. Supp. 803, 29 Civ. Proc. R. 86. 20. Livingston v. New England Mortgage Security Co., 77 Ark. 379, 91 S. W. 753. OOMMEN-CEMENT 01' ACTlON^ EtC. 152'9 a party to a suit to foreclose tlie first mortgage, and, at the time suit was brought to foreclose the second mortgage, the time limited by law for suing on the first mortgage had fully elapsed, the sec- ond mortgagee was entitled to plead the statute of limitations as a complete defense to any rights acquired under the first mort- gage.^^ An action for personal injuri^es, brought within the period of limitations, does not save the right to sue another company for the same injury, by a new writ, after limitations have run, even though the liabilities of defendants in both suits are indentical.^^ An action by a landlord to foreclose a lien on his tenant's property does not interrupt the running of limitations in favor of a pur- chaser of the property who was not made a party. ^^ The fact that a note has been reduced to judgment has no effect on the defense of limitations, as against one not a party to the action therein.^* § 307(1). Amendment of pleadings in general. The original declaration, by fiction of law, relates back to the beginning of the suit. The amended declaration, if it presents a restatement of the cause of action set out in the original declara- An action by a ward against lier v. Hoplcina, 144 Cal. 19, 77 Pac. 712. former guard'an and u. surety on liis 22. Peterson v. Delaware Eiver bond to falsify and surcharge the Ferry Co., 190 Pa. 364, 30 Pittsb. guardian's account was insufficient to Leg. J. (N. S. ) 26, 42 Atl. 955. toll the statute of limitations as 23. Meyer Bros. Drug Co. v. Fry against the heirs and administrator (Tex. Civ. App.), 48 S. W. 752. of a deceased surety not a party to 24. Damon v. Leque, 17 Wash. 573, the suit. Wallace v. Swepston, 74 50 Pac. 485, 61 Am. St. Rep. 937. Ark. 520, 86 S. W. 398, 109 Am. St. See also, as to effect as to persons Rep. 94. not parties: 21. Frates v. Sears, 144 Cal. 246, Iowa. — Clark v. Staber (Iowa), 77 Pac. 905. 98 K W. 560, following Polly Under the California statutes, the v. Walker, 60 Iowa 86, 14 N. W. 137. action of the original pla'ntiff in par- Kan. — Demple v. Hofman, 9 Kan. tition is for the benefit of all persons App. 881, 57 Pac. 234, rev'g judg. 55 interested in the property included Pac. 558. in the complaint, and all such par- La. — ^E. J. Gay & Co. v. Suthon, ties are actors from the commence- Man. Unrep. Cas. 442; Segura v. La- ment of the suit, so tlat the running bit, Man. Unrep. Cas. 296. of limitations as to them is stopped Tex. — Houston & T. C. Ry. Co. v. by the filing of the complaint. Adams McFadden, 91 Tex. 194, 40 S. W. 216. 1526 . Statutes of Limitation. tion, also relates back to the beginning of the suit. If the cause of action set out in the amended declaration is a new cause of action and not a mere restatement of the cause of action set out in the original declaration, the amended declaration does not relate back to the beginning of the suit so as to stop the running of the statute, but is the equivalent of a new suit on such cause of action, and the statute continues to run until the amended declaration is filed. ^^ The statute of amendments does not cause an amendment to a plead' ing to relate back to the commencement of a suit, so as to defeat the bar of the statute of limitations against the cause stated in the amendment, but whether such amendment relates back is to be determined by the common-law rule against departures in plead- ing.^® Within the statute of limitations, an amended complaint sets up a new cause of action composed of the right of plaintiff and the obligation, duty, or wrong of defendant, where the new allegation deprives defendant of any defense he had to the original action, where the evidence that would have proved the original complaint will not prove the new, where the new allegations, if in reply, would have amounted to a departure, where the amended complaint sets up a title not before asserted, or where a judgment on the first complaint would be no bar to a judgment on the amended complaint.^' Under the settled law of Pennsylvania, a new cause of action cannot be introduced into a pending suit by amendment after the statute of limitations has run against it.^^ 85. III. — Klugman v. Sanitary iLaun- trie Light Cb., 45 Ind. App. 649, 90 dry'Oo., 141 111. App. 42'a; Walters v. N. E. 7i83, rehearing denied, 91 N. E. City of Ottawa, 340 111. 259, 88 N. E. 571. In general, an amendment to a 651, roiv'g judg. 144 111. App. 379; compdaint will not be permitted when Lee V. Republic Iron & Steel Co., 241 it will operate to defeat a plea of 111. 373, 89 N". E. 655. limitations. Indiana Union Traction yea;.— Texas & N. O. K. Co. v. Mc- Co. v. Pring, 50 Ind. App. 566, 96 Donald (Tex. Civ. App.), 120 S. W. N. E. 180. 494; Newsom & Johnson v. Sharman 28. Mitchell Coal & Coke Co. v. (Tex. Civ. App.), 119 S. W. 913. Pennsylvania E. Co., 181 Fed. 403, 26. Nelson v. First Nat. Bank, 139 dismissed for want of jurisdiction, Ala. 578, 36 So. 707, 101 Am. St. Rep. 183 Fed. 9'0i8 (U. S. C. C., Pa.). 53. Where, in an action for the death 27. Raley v. Evansville Gas & Elec- of plaintiff's husband, the negligence CoMMEiNCEMENT OF AcTIONj E.TG. 152i7 Under a special statute limiting the filing of claims for damages from the discontinuance of streets to six years, claims filed in time cannot, after the period of limitations has expired be increased.^' § 307(2). Amendment restating original cause of action. As a general rule, where an amendment to a petition, declara- tion, or complaint sets up no new matter or- claim, but merely am- plifies and restates with more certaiaty or in a different form the cause of action set out in the original pleading, it relates back to the commencement of the suit, and the statute of limitations is arrested at that point.^" One of the tests for determining whether charged is shown to be unfounded, plaintiflf cannot amend by setting up a different theory charging different negligence after limitations h'ave be- come a bar. Miartin v. Pittsburg Eys. Co., 337 Pa. 18, 75 Atl. 837, 36 L. R. A. (N. a.) 1221. 29. In re Spuyten Duyvil Road, 116 N. Y. Supp. 857. ■See also, as to amendment of plead- ings in general: Ark. — St. Louis, etc., Ey. Co. v. LoTO, 74 Ark. 538, 86 S. W. 395. F2a.— Todd v. Louiarville & N. R. Co. (Fla.), 67 So. 84. 6a.— .Roberts v. Leak, 108 Ga. 806, 33 S. E. 995; .Southern Ry Co. v. Horine, 131 6a. 386, 49 S. B. 385. III. — 'Heffron v. Rochester German Ins. Co., ,320 111. 514, 77 N. E. 363, aff'g judg. 119 111. App. 566, aff'g judg. Rochester German Ins. Co. v. Heffron, 89 111. App. 659. Iowa. — Jones v. Clark, 34 Iowa 590. Kan. — Anthony Inv. Co. v. Arnett, 63 Kan. 879, 64 Pac. 1024. Ky. — ^City of Louisville v. Robin- son's Ex'r, 119 Ky. 908, 27 Ky. Law Rep. 375, 85 S. W. 172; Norman v. Central Kentucky Asylum, 26 Ky. Law Rep. 71, 80 S. W. 781, denying rehearing 25 Ky. Law Rep. 1846, 79 S. W. 189; Stengel v. Preston, 89 Ky. 616, 11 Ky. Law Rep. 976, 13 S. W. 839. Uo. — Long V. Long, 141 Mo. 353, 44 S. W. 341. Term. — Crofford v. Cothran, 34 Tenu. ('2 Sneed) 492. Tex. — Priehard v. Foster (Tex. Civ. App.), 170 S. W. 1077; Cotton v. Barnes (Tex. Civ. App.), 167 S. W. 756; Schmidt v. Brittain (Tex. Civ. App.), 84 S. W. 677; Southern Gold Storage & Produce Co. v. A. F. Dech- man & Co. (Tex. Civ. App.), 73 S. W. 545; Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 899; Hanriok V. Gurley, 93 Tex. 458,, 54 S. W. 347, judg. modified 93 Tex. 458, 56 S. W. 330, modifying judg. (Tex. Civ. App.) 48 S. W. 994. ~yo. — Morrison's Ex'r v. Household- er's Adm'r, 79 Va. 627. W. To,. — ^Kuhn v. Brownfleld, 34 W. Va. 252, 12 S. E. 519, 11 L. E. A. 700. 30. V. S.— Bankers' Surety Co. v. Town of Holly, 219 Fed. 96; Illinois Surety Co. v. United States, 315 Fed. 334; Patillo v. Allen- West Commis- sion Co., 131 Fed. 680, 65 C. C. A. 1528 Statutes of Limitation. an additional count states a different cause of action from the ori- 508; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70; Marshalltown Stone Co. V. Louis Drach Const. Co., 133 Fed. 746; Crotty v. Chicago Great Western Ry. Co., 169 Fed. 593, 95 C. C. A. 91 (C. C. A., Iowa). Ala. — Alabama Consol. Coal & Iron Co. V. Heald, 168 Ala. 626, 53 So. 162; Byrd v. Hickman, 167 Ala. 351, 53 So. 436, where the amendment referred to the same transaction, property, title, and parties as the original; Gaines v. Birmingham Ry., etc., Co., 164 Ala. 6, 51 So. 338, where the amendment referred to the same in- jury; St. Louis & S. F. R. Co. v. Hooker, 161 Ala. 313, 50 So. 56; Dal- las Mfg. Co. V. Townes, 162 Ala. 630, 50 So. 157; Central of Georgia Ry. Co. V. Williams, 163 Ala. 119, 50 So. 338; Central of Georgia Ry. Co. v. Styrgis, 159 Ala. 223, 48 So. 810; Illinois Car & Equipment Co. v. Walch, 133 Ala. 490, 31 So. 470. Ark. — Western Coal & Mining Co. V. Corkille, 96 Ark. 387, 131 S. W. 963; Smith v. Scott, 93 Ark. 143, 133 S. W. 501; Price v. Greer, 89 Ark. 300, 116 S. W. 676, judg. modi- fied on rehearing, 118 S. W. 1009. Ariz. — Kain v. Arizona Copper Co., 14 Ariz. 566, 133 Pao. 413; Arizona Eastern R. Co. v. Old Dominion Cop- per Mining & Smelting Co., 14 Ariz. 309, 137 Pac. 713; Hagenauer v. De- troit Copper Mining Co., 14 Ariz. 74, 124 Pac. 803; Bourdreaux v. Tocson Gas, etc., Co., 13 Ariz. 361, 114 Pac. 547. Cal. — Ruiz V. Santa Barbara Gas. & Electric Co., 164 Cal. 188, 138 Pac. 330, where the amended complaint merely added matters essential to make the original cause of action complete; Union Lumber Co. v. J. W. Schouten .& Co., 25 Cal. App. 80, 143 Pac. 910, where the amended count was on a different theory from the original complaint. Z)eJ.— Gatta v. Philadelphia, B. & W. R. Co., 1 Boyoe (34 Del.) 293, 76 Atl. 56, limitations cannot be invoked in bar of an action as based on an amended declaration, if deemed rea- sonable and allowed by the court. /«.— iMaier v. Chicago City Ry., 166 111. App. 500; Beresh v. Supreme Lodge Knights of Honor, 355 111. 133, 99 N. E. 349, aff'g judg. 166 111. App. 511 ; Johnson T. Perkins, 167 111. App. 611; Lyons v. Sampsell, 168 111. App. 543; Christensen v. Oscar Daniels Co., 170 111. App. 59; Gassman v. Hetzel, 175 111. App. 404; Neroni v. Inland Steel Co., 178 111. App. 346, where the gist of the action was the same in the original and the amended declara- tion; Mclnerney v. Western Packing & Provision Co., 154 111. App. 559, judg. aff'd 349 111. 240, 94 N. E. 519 ; Asplund V. Conklin Const. Co., 154 111. App.- 164; Jacobson v. Duffy, 154 111. App. 505; Bober v. City of Chi- cago, 155 111. App. 561; Joerg v. Atchison, etc., Ry. Co., 152 111. App. 229, a change in the form of the ac- tion from tort to contract does not constitute the setting up of a new cause of action where the claim is the same, governed and controlled by the same facts; Wilcke v. Henrotin, 146 111. App. 481, judg. aff'd 241 111. 169, 89 N. E. 329; Lee v. Republic Iron & Steel Co., 148 111. App. 585, judg. aff'd 89 N. E. 655; Monahan v. Fidelity Mut. Life Ins. Co., 242 111. 488, 90 N. E. 213, a change from covenant to assumpsit does not Commencement of Action^ Etc. 1529 ginal count, and is therefore barred ty the statute of limitations, amount to the commencement of a new suit; Maegerlein v. City of Chi- cago, 141 111. App. 414, judg. aff'd 237 111. 159, 86 N. E. 670; Byrne v. Marshall Field & Co., 142 111. App. 72, judg. aff'd 237 111. 384, 86 N. E. 748. Ind. — ^Chicago & E. R. Co. v. Din- iiis, 180 Ind. 596, 103 N. E. 652; United States Health & Accident Ins. Co. V. Emerick, 55 Ind. App. 591, 103 N. E. 435; Harrod v. Bisson, 48 Ind. App. 549, 93 N. E. 1093; Ft. Wayne Iron & Steel Co. v. Parsell, 49 Ind. App. 565, 94 N. E. 770; Terre Haute & I. R. Co. V. Zehner, 166 Ind. 149, 76 N. E. 169; Springfield Engine & Thresher Co. v. Michener, 23 Ind. App. 130, 55 N. E. 32; Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. E. 475. /owa.— Blake v. City of Bradford (Iowa), 151 N. W. 74; Knight v. Moline, etc., Ry. Co., 160 Iowa 160, 140 N. W. 839; Gordon v. Chicago, etc., Ry. Co., 129 Iowa 747, 106 N. W. 177. Ky. — Cincinnati, etc., Ry. Co. T. Goode, 163 Ky. 60, 173 S. W. 329; Jones V. Scott, 5 Ky. Law Rep. (ab- stract) 858. Md. — State v. Chesapeake Beach Ry. Co., 98 Md. 35, 56 Atl. 385. Moss. — Regan v. Keyes, 204 Mass. 894, 90 N. E. 847. Mich. — Pratt v. Montcalm Circuit Judge, i05 Mich. 499, 63 N. W. 506. J/imre.— Gilbert v. Gilbert, 120 Minn. 45, 138 N. W. 943. Mo. — Bowen v. Buckner, 171 Mo. App. 384, 157 S. W. 829, amendments are liberally allowed to save a cause from the statute when the cause of action is not totally changed; Cytron V. St. Louis Transit Co., 205 Mo. 692, 104 S. W. 109 ; Brickeu v. Cross, 163 Mo. 449, 64 S. W. 99. Mont. — McAuley v. Casualty Co. of America, 39 Mont. 185, 102 Pac. 586; Clark V. Oregon Short Line R. Co., 38 Mont. 177, 99 Pac. 298. ffe6.— Witt V. Old Line Bankers' Life Ins. Co., 92 Neb. 763, 139 N. W. 639; Duffy V. Scheerger, 91 Neb. 511, 136 N. W. 724; First Nat. Bank v. Cooper, 91 Neb. 624, 136 N. W. 1023; McCague Savings Bank v. Croft, 87 Neb. 770, 128 N. W. 504, where the original petition contained two causes of action, which were improperly joined, and one of them was elimi- nated by an amended petition; Bush v. Teeumseh Bank, 64 Neb. 451, 90 N. W. 236; Chicago, etc., R. Co. v. Young, 67 Neb. 568, 93 N. W. 922; Tomson v. Iowa State Traveling Men's Ass'n, 88 Neb. 399, 129 N. W. 529. Tfl. /.—Duffy V. McKenna, 82 N. J. Law 62, .81 Atl. 1101. Ohl. — Z. J. Fort Produce Co. v. Southwestern Grain & Produce Co., 06 Okl. 13, 108 Pac. 386. Pa. — Puritan Coal Mining Co. v. Pennsylvania R. Co., 237 Pa. 420, 85 Atl. 426. And see Barnett v. Cain, 51 Pa. Super. Ct. 642; Collins v. Philadelphia & R. Ry. Co., 244 Pa. 210, 90 Atl. 575. 2'ea!.— Maple v. Smith (Tex. Civ. App.), 166 S. W. 1196; Collin County Nat. Bank v. Turner (Tex. Civ.' App.), 167 S. W. 165; Texar- kana, etc., Ry. Co. v. Casey (Tex. Civ. App.), 172 S. W. 729; Lilly v. Ycary (Tex. Civ. App.), 152 S. W. 823; Eastern Ry. Co. of New Mexico v. Ellis (Tex. Civ. App.), 153S.W. 701; Ft. Worth & D. C. Ry. Co. v. Mata- 1530 Statutes of Limitation. is whether the same evidence will support the different counts.^* In determining whether an amendment states a different or a new cause of action from that set forth in the original pleading the nature of the action in general must be considered.^^ The general rule above set forth has been applied by the courts in aotions on contract/^ actions for injuries to the person,^* actions for causing dor Land & Cattle Co. (Tex. Civ. App.), 150 S. W. 461; Texas & P. Ky. Co. V. Myers (Tex. Civ. App.), 151 S. W. 337; Western Union Tel. Co. V. Smith (Tex. Civ. App.), 146 S. W. 333'; Galveston, etc., Ry. Co. v. Affleck (Tex. Civ. App.), 147 S. W. 2'88. W. Va. — Shires v. Boggess, 7a W. Va. 109, 77 S. E. 542. Wis. — ^Dittgen v. Bacine Paper Cfoods Co., 164 Fed. 85 (€. C, Wis.). 31. Lakin v. South Side Elevated E. Co., 178 111. App. 76; Wasson v. Boland, 136 Mo. App. 603, 118 S. W. 663. 32. Ala. — Townes v. Dallas Mfg. Co., 154 Ala. 612, 45 So. 696. Ark. — Gannon v. Moore, 83 Ark. 196, 104 S. W. 139. Co?.— Nellis V. Pacific Bank, 127 Cal. 166, 59 Pac. 830. D. C. — ^CoMmbia Height's Realty Co. v. MaoParland, 31 App. D. C. 113, coDidemnation proceedings; Beas- ley V. Baltimore & P. R. Co., 27 App. D. C. 595. /!?.— Connell v. Crosby, 210 111. 380, 71 K E. 350; Liebold v. Green, 69 111. App. 507; Bennett v. Baird, 67 111. App. 422. Me.—Ooe v. Littlefield, 99 Me. 317, 59 Atl. 438. Mass. — Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461. N. G. — Woodcock v. Bostic, 126 N". C. 243, 38 S. E. 881. Tecc. — Ferguson v. Morrison (Tex. Civ. App.), 81 S. W. 1240; Cox v. Patten (Tex. Civ. App.), 66 S. W. 64; St. Louis Type Foundry v. Tay- lor, 27 Tex. €iv. App. 349, 65 S. W. 677 ; Orange Mill Supply Co. v. Good- man (Tex. Civ. App.), 56 S. W. 70O. 33. U. S.— Patillo V. Allen-West Commission Co., 131 Fed. 680, 65 C. C. A. 508 (C. C. A., Ark.). Gal. — Calloway v. Oro Min. Co., 5 Cal. App. 191, 89 Pac. 1070; Ball V. Lowe, 1 Cal. App. 3,38, 81 Pac. 1113; Prosit V. Witter, 132 Cal. 421, 64 Pae. 705, 84 Am. St. Rep. 53; Stockton Combined Harvester & Agricultural Works V. American Fire Ins. Co., 131 Cal. 182, 53 Pac. 573. (?a.— -Sanders v. Allen, 135 Ga. 173, 68 S. E. 1102. , Ind. — Mitchelltree School Tp. of Martin County v. Carnahan, 48 Ind. App. 473, 84 N. E. 530. Iowa. — ^Taylor v. Taylorj 110 Iowa 207, 81 N. W. 472. Kan. — Bradley v. Pinney, 77 Kan. 763, 93 Pac. 585. JV. H. — Seely V. Manhattan Life Ins. Co., 73 N. H. 49, 55 Atl. 435. Tex. — Green v. Lioftus (Tex. Civ. App.), 133 S. W. 5013; Booth v. Houston Packing Co. (Tex. Civ. App.), 105 S. W. 46; Texas & N. O. R. Co. V. Clippenger (Tex. Civ. App.), 106 S. W. 155; Borden v. Le Tulle Mercantile Co. (Tex. Civ. App.), 99 S. W. 1B8; Taylor v. Silliman (Tex. OoMMElSrCEMENT OF ACTION^ EtC. 1531 ^death,'^ actions for slander or libel,^® actions for injuries to or Civ. App.), 108 S. W. 1011; El Paso & S. W. R. Oo. V. Harris & Liebman (Tex. Civ. App.), 110 S. W. 145; Burton-Lingo Co. v. Beyer, 34 Tex. Civ. App. 236, 76 S. W. 248 ; Goodwin V. Simpson (Tex. Civ. App.), 136 S. W. 1190; Gilliland v. Ellison (Tex. Civ. App.), 137 S. W. 168; Schau°r V. Schauer (Tex. Civ. App.), 138 S. W. 145; Jones v. Thompson (Tex. Civ. App.), 138 S. W. 623. Wis. — Meinahausen v. A. Gettelman Brewing Co., 133 Wis. 95, 113 N. W. 408, 13 L. R. A. (N. iS.) 250. • V. 8. — Smith v. Atlantic Coast Line R. Co., 210 Fed. 761. 34. Ala. — Freeman v. Central of Georgia Ry. Co., 154 Ala. 619, 45 So. 896; Atlanta & B. Air Line Ry. v. Wheeler, 154 Ala. 530, 46 So. 263; Mobile Light &. R. Co. v. Bell, 153 Ala. '90, 45 So. 56; Southern Ry. Co. V. Cunningham, 152' Ala. 147, 44 So. 658. D. C. — District of Columbia v. Frazei', 21 App. D. C. 154. /ii.— 'Carlin v. City of Chicago, 263 111. 564, 104 N. E. 905, rev'g judg. 177 111. App. 89 ; Horstman v. Staver Carriage Co., 153 111. App. 130; Rat- ner v. Chicago City Ry. Co., 233 111. 169, 84 N. E. 201; Lake iShore & M. S. Ry. Co. v. Enright, 207 111. 403, 81 N. E. 374, aflf'g judg. 129 111. App. 223; McAndrews v. Chicago, etc., Ry. Co., 222 111. 1232, 76 N. E. 603, aff'g judg. Chicago, etc., Ry. Co. v. Mc- Andrewa, 124 111. App. 166; Gilmore V. City of Chicago, 224 111. 490, 79 N. E. 59i6, rev'g judg. City of Chi- cago V. Gilmore, 125 111. App. 13; North Chicago St. Ry. Co. v. Auf- mann, 821 111. 614, 77 N. E. 1120, 112 Am. St. Rep. 207 ; Town of Cicero V. Bartelme, 114 111. App. 9, judg. afi'd 212 111. 256, 72. N. E. 437; Chi- cago City Ry. Co. v. McMeen, 206 111. 108, 68 N. E. 1093, aff'g Judg. 103 111. 316; Chicago City Ry. Co. v. Leach, 183 111. 359, 53 N. E. 334, rev'g judg. 80 111. App. 354; Illinois Cent. R. Co. v. Weiland, 179 111. 609, 54 N. E. 300, aff'g judg. 67 111. App. 333; Griffin Wheel Co. v. Markus, 180 111. 391, 54 N. E. 1306., aff'g judg. 79 111. App. 83; Illinois Cent. R. Co. v. Souders, 178 111. 585, 53 N. E. 408, 79 111. App. 41; Swift & Co. v. Fos- ter, 163 111. 50, 44 N. E. 837, aff'g judg. 55 111. App. 280; Waters v. City of Ottawa, 175 111. App. 130. Ind. — Indianapolis St. Ry. Co. v. Fearnaught, 40 Ind. App. 333, 83 N. E. 102; Cleveland, etc., Ry. Oo. v. Bergsehieker, 163 Ind. 108, 69 N. E. lOOO. Iowa. — Benson v. City of Ottumwa, 143 Iowa 349, 131 N. W. 1065; Rus- sell V. Chicago, R. I. & P. Ry. Co., 160 Iowa 503, 141 N. W. 1077; Bacon V. Iowa Cent. Ry. Co., 157 Iowa 493, 137 N. W. 1011. Kan. — Taylor v. Atchison, etc., Ry. Cb., 64 Kan. 888, 66 Pac. 691; Mis- souri Pac. Ry. Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, 72 Am. St. Rep. 343. Ey. — ^Williamson's Adm'r v. Nor- folk & W. R. Co., 160 Ky. 158, 169 S. W. 613; Louisville & N. R. Co. v. Pointer's Adm'r, 113 Ky. 953, 34 Ky. Law Rep. 772, 69 S. W. 1108. Mioh. — Brown v. Detroit United Ry., 179 Mich. 404, 146 N. W. 378. Neh. — Johnson v. American Smelt- ing & Refining Co., 60 Neb. 350, 114 N. W. 144, j'udg. vacated on rehearing 116 N. W. 517. 1532 Statutes of Limitation. ■wrongful dealings with property,^'' actions to enforce liens,^^ actions B. I. — Chobanian v. Washburn Wire Co., 33 R. I. 289, 80 Atl. 394. Tex. — Houston Chronicle Pub. Co. V. MeDavid (Tex. Civ. App.), 173 S. W. 467; Ft. Worth & K. G. Ry. Co. V. Robertson (Tex. Civ. App.), 121 S. W. 202; Texas & N. 0. R. Co. v. Clip- penger (Tex. Civ. App.), 106 S. W. 155; Johnson v. Texas Cent. R. Co., 42 Tex. Civ. App. 604, 93 S. W. 433; Gulf, etc., Ry. Co. v. O'Neill, 32 Tex. Civ. App. 411, 74 S. W. 960; Caswell V. Hopson (Tex. Civ. App.), 47 S. W. 54; The Oriental v. Barclay, 16 Tex. Civ. App. 193, 41 iS. W. 117. Va. — Wise Terminal Co. v. McCor- mick, 107 Va. 376, 58 S. E. 684. 35. U. S. — Cincinnati, etc., Ry. Co. V. Gray, 101 Fed. 623, 41 C. C. A. 535, 50 L. R. A. 47. Ala. — Alabama Consol. Coal & Iron Co. V. Heald, 154 Ala. 580, 45 So. 686; Woodstock Iron Works v. Kline, 149 Ala. 391, 43 So. 363; Nashville, etc., Ry. V. Hill, 146 Ala. 240, 40 So. 613. Gal. — Barr v. Southern California Edison Co., 34 Cal. App. 32, 140 Pac. 47. De!.— Philadelphia, B. & W. R. Co. V. Gatta (Del.), 85 Atl. 721. Ga.— Atlanta, K. & N. Ry. Co. v. Smith, 1 Ga. App. 162, 58 S. E. 106. III. — Byrne v. Marshall Field & Co., 143 111. App. 73, judg. aff'd 237 111. 364, 86 N. E. 748; Devine v. Chicago City Ry. Co., 262 111. 484, 104 N. E. 826; aff'g judg. 171 111. App. 349; South Cliicigo City Ry. Co. v. Kin- nare, 216 111. 451, 75 N. E. 179, afl''g judg. 117 111. App. 1; Wolf V. Col- lins, 196 111. 281, 63 N. E. 638, afl'g judg. 94 111. App. 518. Kan. — Robinson v. Chicago, R. I. & P. Ry. Co., 90 Kan. 436, 133 Pac. 537; Mott V. Long, 90 Kan. 110, 133 Pac. 998; Cunningham v. Patterson, 89 Kan. 684, 133 Pac. 198. Ky. — Louisville & N. R. Co. v. Greenwell's Adm'r, 155 Ky. 799, 160 S. W. 479. Md. — State v. Chesapeake Beach Ry. Co., 98 Md. 35, 56 Atl. 385. Mich. — City of Detroit v. Hosmer, 135 Mich. 634, 7 Detroit Leg. N. 655, 85 N. W. 1. Mo. — Walker v. Wabash R. Co., 193 Mo. 453, 92 S. W. 83. N. r.— Miller v. Erie R. Co., 109 App. Div. 613, 96 N. Y. Supp. 244. N. C— Lassiter v. Norfolk & C. E. Co., 136 N. C. 89, 48 S. E. 643.' Pa. — McArdle v. Pittsburg Rys. Co., 41 Pa. Super. Ct. 163; Herbstritt V. Lackawanna Lumber Co., 313 Pa. 495, 61 Atl. 101. Tenn. — Love v. Southern Ry. Co., 108 Tenn. 104, 65 S. W. 475," 55 L. R. A. 471. Tex. — St. Louis, etc., Ry. ' Co. v. Smith (Tex. Civ. App.), 171 S. W. 512; Texas & P. Ry. Co. v. Eberhart (Tex. Civ. App.), 40 S. W. 1060. 36. Ky. — Vest v. Norman, 1 Ky. Law Rep. (abstract) 317, action for slander. Miss.— -Yazoo & M. V. R. Co. v. Rivers, 93 Miss. 557, 46 So. 705, slander. Mo. — Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668, action for slander. S. 0.— Bell V. Floyd, 64 S. C. 246, 42 S. E. 104, action for slander. 2'ex. — -Dickson v. Lights (Tex. Civ. App.), 170 S. W. 834, action for libel. 37. Ala. — Nashville, etc., Ry. v. Commencement or Action, Etc. 1533 to contest the probate of wills,^' and to amendments affecting the form of action or relief.^ § 307(3). Amendment introducing new cause of action. Where an amendment sets forth a new cause of action, limita- tion may be pleaded to the new matter.*^ Where an amended de- Garth, 155 Ala. 311, 46 So. 583; Floyd V. Wilson, 171 Ala. 139, 54 So. 528. Ga. — ^McGregor v. Witham, 136 Ga. 702, 56 S. E. 55. /«!.— Chicago North Shore St. Ry. Co. V. Payne, 192 111. 339, 61 IST. E. 467. Iowa. — Anderson v. Atcheson, 132 Iowa 744, 110 N. W. 335. Kan. — Fox v. Turner, 85 Kan. 146,' 116 Pac. 233; Green v. Turner, 85 Kan. 877, 116 Pae. 234; Higman v. Quindaro Tp., 91 Kan. 673, 139 Pae. 403; Emporia Nat. Bank v. Layfeth, 63 Kan. 17, 64 Pao. 973. ISleb. — Gourley v. Prokop, 71 Neb. 607, 100 N. W. 949; rehearing 99 N. W. 243, denied. Teai. — ^Kingsbury v. Phillips (Tex. Civ. App.), 142 S. W. 73; Eotan ■Grocery Co. v. Missouri, K. & T. Ey. Co. of Texas (Tex. Civ. App.), 142 S. W. 623; Hitson v. Hurt (Tex. Civ. App.), 101 S. W. 292; Parlin & Or- endorflf Co. v. Glover (Tex. Civ. App.), 99 S. W. 592; Worsham v. Vignal, 14 Tex. Civ. App. 324, 37 S. W. 17. 38. Gal. — ^Lemon v. Hubbard, 10 Cal. App. 471, 102 Pac. 554. III. — Joseph N. Eisendrath Co. v. Gebhardt, 222 111. 113, 78 N. E. 22, aff'g decree 124 III. App. 325. Ky. — City of Louisville v. Selvage, 26 Ky. Law Eep. 479, 66 S. W. 376. Mo. — ^Mann v. Schroer, 50 Mo. 306; Woodson V. Schroer, 50 Mo. 308. Jleb. — ^Merrill v. Wright, 54 Neb. 517, 74 N. W. 955. Tex. — Sexton Rice & Irrigation Co. V. Sexton (Tex. Civ. App.), 106 S. W. 738. 39. Hoffman v. Stetfey, 10 Kan. App. 574, 61 Pac. 823; In re Sulli- van's Estate, 40 Wash. 202, 82 Pac. 297, 111 Am. St. Rep. 895. 40. If an amendment to a com- plaint is not a departure from the original complaint, the fact that the former was based on a statute and the latter framed under the common law would not prevent the amend- ment from relating back to the com- plaint. Alabama Consol. Coal & Iron Co. V. Heald, 154 Ala. 580, 45 So. 686. Where a petition in a broker's ac- tion for commissions alleged express contract, exceptions are properly sus- tained to paragraphs in an amended petition filed after limitations had run alleging conduct inducing plain- tiff to believe that defendant was em- ploying him. Prichard v. Foster (Tex. Civ. App.), 170 S. W. 1077. 41. U. S.— Hills & Co. V. Hoover, 211 Fed. 241; Alessandrelli v. Ar- bogast, 309 Fed. 136; United States v. Dwight Mfg. Co., 210 Fed. 79, 85; Weighel v. United States, 47 Ct. CI. (U. S.) 528; De Valle Da Costa v. Southern Pac. Co., 167 Fed. 654 (C. C, Mass. ) . Ala. — Age-Herald Pub. Co. v. Wat- erman (Ala.), 66 So. 16; Hess ▼. 1534 Statutes of Limitatiott. claration, alleging for the first time an essential element of plain- Birmingham Uy., etc., Co., 149 Ala. 499, 4a So. 595; Freeman v. Central of Georgia Ry. Co., 154 Ala. 619, 45 So. «98. Ark. — Cottonwood Lumber Co. v. Walker, 106 Ark. 100, 153 S. W. 1005 ; Warmack v. Askew, 97 Ark. 19, 133 S.~W. 1013. And see Martin v. H. T. Simon, Gregory & Co., 86 Ark. 280, 110 S. W. 1046. Gal. — Hauer Law & Collection Co. V. LeflBngwell, 11 Cal. App. 494, 105 Pae. 437. Fla. — La Floridienne, J. Buttgen- bach & Co., .Societe Anonyme v. At- lantic Coast Line R. Co., 63 Fla. 208, 58 iSo. 186. III. — ^Vogrin v. American Steel & Wire Co., 179 111. App. 245; Carlin V. City of Chicago, 177 111. App. 89; Gassman v. Hetzel, 175 111. App. 404; Kolber v. Frankenthal, 159 111. App. 383; Henderson v. Moweaqua Coal Mining & Mfg. Co., 145 111. App. 637; Heffron v. Concordia Fire Ins. Co., 138 111. App. 483; Chicago- Virdeu Coal Co. V. Bradley, 134 111. App. 234, judg. aff'd Bradley v. Chicago-Virden Cbal Co., 231 111. 633, 83 N. E. 424; Bahr v. National Safe Deposit Co., 234 111. 101, 84 N. E. 717, afF'g judg. 137 111. App. 397; Riohter v. Michi- gan Mut. Life Ins. Co., 66 111. App. 606. Ind. — ^Williams v. Lowe, 49 Ind. App. 606, 97 N. E. 809; Fleming v. City of Anderson, 39 Ind. App. 343, 76 N. E. 366; Shroyer v. Pittenger, 31 Ind. App. 158, 67 N. E. 475; Blake V. Minkner, 136 Ind. 418, 36 N. E. 346. ^a».— Elrod v. St. Louis & S. F. R. Co., 84 Kan. 444, 113 Pae. 1046; Union Pae. R. Co. v. Sweet, 78 Kan. 243, 96 Pae. 657; Thompson v. Beeler, 69 Kan. 462, 77 Pae. 100; Powers v. Badger Lumber Co., 75 Kan. 687, 90 Pae. 254. Md. — ^Catanzaro Di Giorgio Co. v., F. W. Stock & Sons, 116 Md. 301, 81 Atl. 385. Mich.—'V&n Cleve v. Radford, 149 Mich. 106, 112 N. W. 754. Miss. — 'Cbx V. American EYeehold & Land Mortgage Co., 88 Miss. 88, 40 So. 739. Mo. — ^Wasson v. Boland, 136 Mo. App; 633, 118 S. W. 663; Bricken v. Cross, 163 Mo. 449, 64 S. W. 99. And see Linn County Bank v. Clifton, 363 Mo. 200, 173 S. W. 388. ffeS. — Davis v. Manning, 97 Neb. 658, 150 N. W. 1019 ; Melvin v. Haga- dorn, 87 Neb. 398, 127 N. W. 139; Buerstetta v. Tecumseh Nat. Bank, 57 Neb. 504, 77 N. W. 1094. m. Y. — Serrell v. Forbes, 106 App. Div. 482, 94 N. Y. Supp. 805, judg. afif'd' 185 N. Y. 573, 78 N. E. 1112; Nathan v. Woolverton, 149 App. Div. 791, 134 N. Y. Supp. 469; Dobbs v. Pearl, 118 N. Y. Supp. 485. Pa. — Mitchell Coal & Coke Co. v. Pennsylvania R. Co., i241 Pa. 536, 88 Atl. 743; Bender v. Penfleld, 335 Pa. 58, 83 Atl. 585, a new cause of ac- tion cannot be introduced, or new subject-matter presented, or material defects in pleadings corrected, after the statute of limitations has become a bar; Lane v. Sayre Water Co., 330 Pa. 599, 69 Atl. 1136, or new parties brought in; Lane v. Cayuta Wheel & Foundry Co., 230 Pa. 603, 69 Atl. 1127; Mahoney v. Park iSteel Co., 317 Pa. 30, 66 Atl. 90. OfeJ.— Butt V. Carson, 5 Okl. 160, 48 Pae. 183. CoMMEISrCEMENT OB AcTION, EtC. 1535 tiff's cause of action, is not filed until limitations would have bar- red a new action, if then brought, a plea of limitations is available to the declaration as amended.*^ The general rule, that an amend- ment to the complaint relates to the time of the filing of the ori- ginal complaint, does not apply where the amendment sets up a title not previously asserted, and where the amended complaint sets up a new cause of action and is not presented until after the run- ning of limitations the action therein is barred.*^ Amendments introducing a new cause of action, bringing in a new party, or changing the capacity in which a party is sued, cannot be allowed after limitations have run.^ In the application of the above stated general rule, the nature of the action in general is given considera- tion in the cases.^ It has been applied in actions on contract,^ Term. — Macklin v. Dunn, 130 Tenn. 342, 170 S. W. 588. Tex. — ^Texas Co. v. Alamo Cement Co. (Tex. Civ. App.), 168 S. W. 63; Eagle Pass Lumber Co. v. Galveston, etc., Ry. Co. (Tex. Civ. App.), 164 S. W. 402; Quanah, A. & P. Ry. Co. V. Galloway (Tex. Civ. App.), 165 S. W. 546; Paris & G. N. Ry. Co. v. Rob- inson (Tex. Civ. App.), 127 S. W. 294; Kirby v. Hayden (Tex. Civ. App.), 125 S. W. 993. 42. Prouty v. City of Chicago, 250 111. 322, 95 N. E. 147. When a cause of action is stated for the first time in an amended or additional count, the suit, so far as limitations as to such cause of action are concerned, is regarded as having been commenced at the time the amendment was filed. Devaney v. Otis Elevator Co., a51 111. 28, 95 N. E. 99i0. The plea of the statute of limita- tions is a good defense to a declara- tion in an action against a city for negligence, amended after the statu- tory period had run, by reciting that the statutory i^otice was duly given. Penkala v. City of Chicago, 153 111. App. 337. 43. Ealey v. Evansville Gas & Elec- tric Light Co., 45 Ind. App. 649, 90 N. E. 783, rehearing denied 91 N. E. 571. In determining whether a new cause of action is presented so as to render it subject to the defense of limitations, the court must look to the substantial nature of the claim introduced by the amendment, and not to the formal manner in which it is declared upon. Oolitic Stone Co. of Indiana v. Ridge, 174 Ind. 558, 91 ISr. E. 944. 44. Tonge v. Item Pub. Co., 244 Pa. 417, 91 Atl. 229 ; Mumma v. Mumma, 246 Pa. 407, 92 Atl. 504. 45. U. S. — ^Despeaiix v. Pennsyl- vania R. Co., 133 Fed. 1009 (C. C, Pa. ) , an action for unlawful discrimi- nation in the transportation of freight. Gal. — Campbell v. Campbell 133 Cal. 33, 65 Pac. l'S4; Lambert v. Mc- Kenzie, 135 Cal. 100, 67 Pac. 6. 1536 Statutes op Limitation. actions for injuries to the person/'' actions for causing death,** Oa. — Bentley v. Crummey & Hamil- ton, 119 Ga. 911, 47 S. E. 309; 'Bur- ibage V. Fitzgerald, 98 Ga. 582, 25 S. E. 554. lovya. — O'Banion v. De Garmo, 121 Iowa 139, 96 N. W. 739. Kan. — ^Walker v. Hester, 9 Kan. App. 201, 59 Pac. 663. Ky. — Roush v. Vanceburg, etc.. Turnpike Co., 120 Ky. 165, 27 Ky. iLaw Rep. 542, 85 S. W. 735 ; Norman V. Central Kentucky Asylum, 25 Ky. Law Rep. 1846, 79 S. W. 189, rehear- ing denied 26 Ky. Law Rep. 71, 80, S. W. 781; Fisher v. Mucick's Ex'r, 84 Ky. Law Rep. 1913, 72 S. W. 787. Miss. — Cox V. American Freehold & Land Mortgage Co., 88 Miss. 88, 40 So. 739. Mo. — Bricken v. Cross, 163 Mo. 449, 64 S. W. 99. 2fe6.— Wigton v. Smith, 57 Neb. 299, 77 N. W. 772. Jfev. — Schwartz v. Stock, 26 Nev. 128, 65 Pac. 351. Or. — ^Montgomery v. Shaver, 40 Or. 244, 66 Pac. 923. Pa. — City of Philadelphia v. Hes- tonville, etc., Ey. Co., 203 Pa. 38, 52 Atl. 184. Tex. — Stewart v. Robbins, 27 Tex. Civ. App. 188, 65 S. W. 899; Mis- souri, K. & T. Ry. Co. of Texas v. Levy, 23 Tex. Civ. App. 686, 57 S. W. 866; Estey v. Fisher (Tex. Civ. App.), 44 S. W. 555. 46. V. >S.— United States v. Norton, 107 Fed. 413, 46 0. C. A. 387 (C. C. A., Tex.) ; Whalen v. Gordon, 95 Fed. 305, 37 C. C. A. 70 (C. C. A., Iowa). Ala. — Nelson v. First Nat. Bank, 139 Ala. 578, 36 So. 707, 101 Am. St. Hep. 52. Gal. — ^Merchants' Collection Agency V. Gopcevic, 23 Cal. App. 216, 137 Pac. 609; Rogers v. Byers, 1 Cal. App. 284, 81 Pac. 1123; Merchants' Nat. Bank of Santa Monica v. Bentel, 166 Cal. 473, 137 Pac. 35. Ga. — Mcintosh v. Thomasville Real Estate & Improvement Co., 141 Ga. 105, 80 S. E. 639. III. — Pullman v. Secord-Hopkins Co., 73 111. App. 30, aff'd Secord-Hop- kins Co. V. Lincoln, 173 111. 357, 50 N. E. 1074. Ky. — Montague v. Bell, 14 Ky. La,w Rep. 890; Clark v. Logan County, 138 Ky. 676, 138 S. W. 1079. Md. — Hamilton v. Thirston, 94 Md. 253, 51 Atl. 42. Pa. — Mumma v. Mumma, 246 Pa. 407, 92 Atl. 504. Tex. — Phoenix Lumber Co. v. Hous- ton Water Co. (Tex. Civ. App.), 59 S. W. 552, judg. aff'd 94 Tex. 456, 61 S. W. 707;' Cotton v. Rand, 93 Tex. 7, 51 S. W. 838, rev'g judg. (Tex. Civ. App.) 51 S. W. 55; Modified on re- hearing 93 Tex. 7, 53 S. W. 343 ; Nel- son V. Brenham Compress Oil Mfg. Co. (Tex. Civ. App.), 51 S. W. 514; Fidelity & Casualty Co. of New York v. Allibone, 15 Tex. Civ. App. 178, 39 S. W. 632; Cotulla v. Urbahn, 104 Tex. 208, 135 S. W. 1159, rev'g judg. (Tex. av. App.) 126 S. W. 13. 47. V. yS.— Tiller v. St. Louis & S. F. R. Co., 189 Fed. 994 (C. C, Old.). Ga. — Gainesville Midland Ry. v. Vandiver, 141 Ga. 350, 80 S. E. 997. III. — Carlin v. City of Chicago, 177 III. App. 89 ; Sturonois v. Morris, 177 111. App. 514; Long v. City of Chi- cago, 178 111. App. 577 ; Chicago City Ry. Co. V. Leach, 80 111. App. 354, judg. rev'd 182 111. 359, 55 N. E. 334; Chicago City Ry. Co. v. Cooney, 95 Commencement of Action, Etc. 1537 actions for malicious prosecution or slander/® actions for injuries to or wrongful dealings with property,™ and to amendments af- fecting the form of action or relief .^^ 111. App. 471, judg. afi'd 196 111. 466, 63 N. E. 1029; Wabashi R. Co. v. Bhymer, 113 111. App. 22l5, judg. rev'd ai4 111. 579, 73 N. E. 879 ; Jones V. Klawlter, 110 111. App. 31, judg. aflf'd Klawiter v. Jones, 219 111; 626, 76 N. E. 673 ; Harper v. Illinois Cent. E. Co., 74 ni. App. 74; Chicago & A. R. Co. V. Reilly, 75 111. App. 125; Chicago & A. R. Co. v. Scanlan, 67 111. App. 621, judg. aflf'd 170 111. 106, 48 N. E. 826. Ind. — Fleming v. City of Anderson, 39 Ind. App. 343, 76 N. E. 266. Iowa. — ^Sachra v. Town of Manilla, 120 Iowa 562, 95 N. W. 198. Nei. — Westover v. Hoover, 94, !Neb. 596, 143 N. W. 946. N. r.— Hughes V. New York, O. & W. Ey. Co., 158 App. Div. 443, 143 N. Y. Supp. 603. Pa. — ^Allen v. Tuscarora Valley R. Co., 329 Pa. 97, 78 Atl. 34. Where the original declaration failed to allege any cause of action whatever, a subsequent amended declaration, setting up negligence of defendant, states a new cause of ac- tion, for the purpose of the statute of limitations. Eylenfeldt v. Illinois Steel iCo., 165 111. 18.5, 46 N. E. 266, aff'g 63 111. App. 552; Illinois Cent. R. Co. V. Campbell, 170 111. 163, 49 N. E. 314, rev'g judg. 58 111. App. 275; Strojyn v. Griffin Wheel Co., 116 111. App. 550. When an additional count filed to a declaration in an action for per- sonal injuries sets up a new or dif- ferent cause of action and is not filed ■within the time limited by the stat- 87 ute for commencing the action, such amended count is amenable to a plea of the statute of limitations. Dal- ton V. Chicago City Ry. Co., 93 111. App. 7; South Chicago City Ry. Co. V. Kinnare, 117 111. App. 1, judg. aflt'd 216 111. 451, 75 N. E. 179. 48. U. /S.— Boston & M. R. R. v. Hurd, 108 Fed. 116, 313 (C. C. A., Mass.), 47 C. C. A. 615, 56 L. R. A. 193 (C. C. A., N. H.) ; Hall v. Louis- ville & N. R. Co., 157 Fed. 464 (C. C, Fla.); De Valle Da Costa v. Southern Pac. Co., 160 Fed. 216, judg. rev'd Viscount De Valle Da Costa v. Southern Pac. Co., 176 Fed. 843, 100 C. C. A. III. — ^Bahr v. National Safe Deposit Co., 137 111. App. 397, judg. aff'd 234 III. 101, 84 N. E. 717; Byrne v. Mar- shall Field & Co, 237 111. 384, 86 N. E. 748; St. Luke's Hospital v. Fos- ter, 86 111. App. 282, judg. aff'd 191 111. 94, 60 N. E. 803. Eon. — City of Kansas City v. Hart, 60 Kan. 684, 57 Pac. 938. Neb. — Zitnik v. Union Pac. R. Co., 95 Neb. 152, 145 N. W. 344. 49. Brooks v. Seevers, 112 Iowa 480, 84 N. W. 517. 50. U. /S.— United States v. Mar- tinez, 195 U. "S. 469, 35 Sup. Ct. 80, 49 L. Ed. 382. III. — iDoyle V. City of Sycamore, 81 111. App. 589, judg. aff'd 193 111. 501, 61 N. E. 1117. Ey. — Kentucky Cent. R. Co. v. Campbell, 7 Ky. Law Rep. (abstract) 535. Md. — Schuck v. Bramble, 122 Md. 411, 89 Atl. 719. 1538 Statutes of Limitation. § 308(1). New action after dismissal or nonsuit or failure of former action in general. Under a statute of limitations, which permits the beginning of a new suit within a certain time after the failure of a former suit brought in due time on the same cause of action otherwise than on the merits, a second suit by an employe against a railroad company for a personal injury is for the same cause of action as a prior suit, where the parties and injury are the same, the facts pleaded are the same, and the negligence charged against the company is. the same in legal effect, although it may be attributed to a dif- ferent agent.^^ The Georgia statute, relating to the renewal of actions within six months, is a remedial statute, and should be so construed as to preserve the right to renew, when the previous suit has been disposed of on any ground other than one affecting- the merits.^' The Missouri statute, allowing another action on the same grounds to be brought within a year after a nonsuit, does not curtail, but extends, the time allowed bv other sections of the limitation law.^* Under the Vermont statute, providing JfeiJ.— 'Schwartz v. Stock, 2& Nev. (Tex. Civ. App.) 86 S. W. 930; In- 155, 65 Pac. 357. ternational & G. N. R. Co. v. Dalwigh Tea;.— Worsham v. Vignal, 14 Tex. (Tex. Civ. App.), 56 S. W. 136; Ball Civ. App. 334, 37 S. W. 17; Griffin v. v. Hagy (Tex. Civ. App.), 54 S. W. Allison (Tex. Civ. App*.), 138 S. W. 915; Santleben v. Froboese, 17 Tex. 623. Civ. App. 626, 43 S. W. 571. 51. Cal. — Kent v. San Francisco 52. Brown v. Erie R. Co., 176 Fed. Sav. Union, 130 Cal. 401, 63 Pac. 620. 544, lOO C. C. A. 133. D. C— Howard v. Chesapeake & O. 53. Atlanta, K. & N. Ry. Co. v. Wil- Ry. Co., 11 App. D. C. 300. son, 119 Ga. 781, 47 S. E. 366, under III.— Walker v. Warner, 179 111. 16, Civ. Code 1895, § 3786. The institu-^ 53 N. E. 594, 70 Am. St. Rep. 85. tion of an action against a different -Easter v. Riley, 79 Miss. defendant on the same cause of ac- 625, 31 So. 310. tion as that involved in a suit dis- N. 7. — Truman v. Lester, 71 App. missed was not a " renewal " of tho Div. 612, 75 N. Y. Supp. 548, 10 N. action within Civ. Code 1910, § 4381; Y. Ann. Cas. 478. Floyd & Lee v. Boyd (Ga. App.), 84 Te»m.— Crofford v. Cothran, 34 S. E. 494. Tenn. (3 Sneed) 49'2. 54. Karnes v. American Fire Ins. Tew.— McLaury v. Watelsky, 39 Co. of Philadelphia, 144 Mo. 413, 4& Tex. Civ. App. 394, 87 R. W. 1045; S. W. 166, under Rev. St. 1889, & Scanlon v. Galveston, etc., Ry. Co. Commencement of Action, Etc. 1539 that if, after verdict for plaintiff, the judgment is arrested, plain- tiff may commence a new action for the same cause within a year, an arrest of judgment in favor of plaintiff does not bar a subse- quent action for the same cause.^^ An unsuccessful action of ejectment which led to no change in the possession of the land did not stop the running of the statute of limitations.^^ § 308(2). Nature or form or identity of actions or proceedings. The California statute, which provides that, if a judgment for plaintiff be reversed on appeal, the plaintiff may commence a new action within one year after the reversal, permits a new action of any kind, having for result the same relief as was obtained in the original action, to be brought within the year.^' Under the 6784. And see Billion v. Walsh, 46 Mo. 493. 55. Baker v. Sherman, 77 Vt. 167, 59 Atl. 167, under V. S. 1214. 56. Nelson v. Triplett, 99 Va. 421, 3 Va. Sup. Ct. Rep. 293, 39 S. E. 150. Where verdict had been rendered for defendant, and a new trial de- nied, the case has, without entry of judgment, which is only a ministerial act, been " decided " against plain- tiflf, within Pa. Act April 13, 1859 (P. L. 603), providing that no entry or action, without a recovery therein, shall " arrest the running of said statute in respect to another eject- ment, unless it be brought within a year after the first shall have been nonsuited, arrested, or decided against the plaintiff therein.'' Crum- ley V. Lutz, 196 Pa. 559, 46 Atl. 901. Actions within exception of statute. See III. — ^Wiggins Ferry Co. v. Gard- ner, 91 III. App. 20; Lalce Shore & M. S. Ry. Co. V. Dylinski, 67 111. App. 114. Ind. T. — Turner v. Gonzales, 3 Ind. T. 649, 64 S. W. 565. Kan. — ^McGlinchy v. Bowles, 68 Kan. 190, 75 Pae. 123; Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620; Knox V. Henry, 8 Kan. App. 313, 75 Pac. 123. Mass. — Tyndale v. Stanwood, 190 Mass. 513, 77 N. E. 481. N. Y. — In re May's Estate, 24 Misc. Rep. 456, 53 N. Y. Supp. 710, 2 Gib- bons 547, rev'd In re Sehlessinger's Estate, 36 App. Div. 77, 55 N. Y. Supp. 514, a Gibbons 547. ff. C— Meekins v. Norfolk & S. R. Co., 131 N. C. 1, 42 S. E. 333. Tenn. — Stuber v. Louisville & N. R. Co., 113 Tenn. 305, 87 S. W. 411. Va. — ^Manuel v. Norfolk & W. Ry. Co., 99 Va. 188, 3 Va. Sup. Ct. Rep. 110, 37 S. E. 957; Dawes v. New York, P. & N. R. Co., 96 Va. 733, 33 S. E. 778. W. Fo.— Hevener v. Hannah, 59 W. Va. 476, 53 S. E. 635. Severance of action. — See Garman v. United States, 34 Ct. CI. (U. S.) 237. 57. Kenney v. Parks, 137 Oal. 527, 70 Pae. 556, under Code Civ. Proc, § 355. 1540 Statutes of Limitation. Georgia statute, granting the right to bring a new action within six months after discontinuance,- dismissal, or nonsuit, the second suit does not have to be a literal copy of that dismissed, although it must be for substantially the same cause of action, by the same plaintiff or his legal representatives, and against all the defend- ants who were necessary parties to the first suit, or their legal representatives.^^ The Iowa statute, which provides that, where a plaintiff fails in any action for any cause except negligence in its prosecution, a new action commenced within six months, shall be deemed a continuance of the first, for the purpose of the statute of limitations, does not apply where the cause of action stated in the second action is different from that alleged in the first, though based on the same transaction.^^ The word " action " in the Illi- nois statute is not limited to actions at law, but includes suits in equity, and hence, where plaintiff was nonsuited in a chancery- suit, and limitations ran against hia^ claim during the pendency of such suit, he was entitled to commence an action at law on the claim within a year after the entry of the nonsuit.^" § 308(3). Abatement or abandonment of former action. The death of the defendant in ejectment abates the suit, but the statute of limitations does not run during the pendency of the suit ; and under the Michigan statute, plaintiff may bring an action 58. Cox V. iStriekland, 130 Ga. 104, See also, as to the rule in other 47 S. E. 913, under Civ. Code 1895, jurisdictions: § 3786. And see Atlanta, K. & N. Arh. — Covington v. Berry, 76 Ark. Ry. Co. V. Wilson, 119 Ga. 781, 47 S. 460, 88 S. W. 1005. E. 366. Ky. — ^Commonwealth v. Elkins, 116 59. Whalen v. Gordon, 95 Fed. 305, Ky. 303, 35 Ky. Law Rep. 485, 76 S. 37 C. C. A. 70, 1 under Code Iowa W. 25 ; Smith v. Herd, 110 Ky. 56, 1897, § 3455. 33 Ky. Law Rep. 1596, 60 S. W. 841, 60. Lamson v. Hutchings, 118 Fed. 1131. 331, 55 0. 0. A. 845, under 3 Starr OfcJ.^Hatchell v. Hebeisen, 16 Okl. & 0. Ann. St. 111., p. 2642, c. 83, par. 333, 82 Pac. 626; Myers v. First 25. See also, Gibbs v. Orane Elevator Presbyterian Church of Perry, 11 Okl. Co., 180 111. 191, 54 N. E. 300, aff'g 544, 69 Pax:. 874. judg. Gibbs v. Chicago Title & Trust Co., 79 111. App. 23. Commencement oe Action, Etc. 1541 for the same cause at any time within one year after the suit is thus abated.^^ The Maine statute, relative to the commencement of action within six months after abatement of the writ in a former action on the same demand, has no application to a case where the writ, contrary to law, was not made returnable at the first term after its issuance. ^^ Where a county board sued its auditor to recover for illegal allowances received by him, and afterwards the action was compromised, and an action was then commenced by interested citizens to invalidate the settlement, the statute of limitations stopped running in favor of the auditor at the com- mencement of the first suit and remained so throughout both ac- tions, under the Indiana statute.®^ Under the Kentucky statute, the' institution by appellant of another action, which was dismissed on his own motion, cannot be regarded as an abandonment of the original action, so as to make the plea of limitations available.^* § 308(4). Dismissal or nonsuit in general. A voluntary dismissal without prejudice to a future action is a failure other than upon the merits within the Kansas Civ. Code, § 23, providing that if an action fails otherwise than on the merits, plaintiff may commence a new action within one year.^^ Under 61. McKenzie v. A. P. Cook Co., action abate, a new action may be 113 Mich. 453, 4 Detroit Leg. N. 396, commenced within five years after 71 N. W. 868, under How. Ann. St., such determination, and be deemed § 8707. a " continuation of the first " in or- Where a resident of Iowa died der to prevent the running of the stat- pending suit against him in Illinois, ute of limitations, action on a claim filed against the 64. Johnson v. Barnes, 8 Ky. Law estate in Iowa was a new suit, within Rep. (abstract) 956, 4 S. W. 176. the statute of limitations. Malone See also, as to abandonment of V. Averill, 166 Iowa 78, 147 N. W. suit: Raymond v. Oonery, 50 La. 135. Ann. 155, 23 So. 208; Mechanics' & 62. Densmore v. Hall, 109 Me. 438, Traders' Bank v. Theall, 8 La. Ann. 84 Atl. 983, under Rev. St. c. 83, § 94. 469. 63. Zuelly v. Casper, 46 Ind. App. 65. Harrison v. Remington Paper 430, 92 N. E. 785, under Burns' Ann. Co., 140 Fed. 385, 72 C. C. A. 405, 3 St. 1908, § 301, providing that if the L. R. A. (N. S.) 954; Draper v. Mil- plaintiff fail in the prosecution for ler, 92 Kan. 275, 140 Pao. 890; Den- any reason except negligence, or the ton v. City of Atchison, 76 Kan. 89, 154a Statutes of Limitation. Georgia Civ. Code 1895, § 3786, providing that, if a plaintiff shall be nonsuited or shall discontinue or dismiss his case and shall recommence within six months, the second case shall stand upon the same footing as to limitations with the original case, the mere dismissal in general terms of a suit will not after the expiration of six months from such dismissal operate as a bar to the bringing of the second suit by the same plaintiff against the same defendant on the same cause of action when the cause of action is not barred by the statute of limitations applicable thereto at the time the second suit is brought.*^ Where the plaintiff in an action suffers an involuntary nonsuit, he is given by the Illinois statute of limitations one year from the date of suffering such nonsuit to begin his action anew ; the section does not apply where a voluntary nonsuit has been taken.®' In Iowa, where the plaintiff 90 Pac. 764, but where the new action is dismissed more than one year after the first .dismissal, there is no au- thority for the bringing of another new action; Parker v. Dobson, 78 Kan. 63, 96 Pac. 472; Swift & Co. v. Hoblawetz, 10 Kan. App. 48, 61 Pac. 969; Hiatt v. Auld, 11 Kan. 176; Mc- Whirt V. McKee, 6 Kan. 412. Where in an action it was deter- mined that plaintiff could not main- tain the same, because of an oral agreement not to sue until other liti- gation was terminated, in an action after the termination of such other litigation defendants could not plead that limitations had barred the ac- tion; the decision in the first case suspending limitations until the ac- tion was determined. Dendy v. Rus- sell, 84 Kan. 377, 114 Pac. 239. 66. Hackney v. J. R. Asbury & Co., 134 Ga. 678, 52 S. E. 886. Civ. Code, § 3786, does not author- ize the renewal of a writ of certiorari dismissed for want of proper affidavit. Hill V. State, 115 Ga. 833, 43, S. E. 286. Where a suit is dismissed and a writ of error is sued out, the statu- tory period of six months within which a, suit which has been dis- missed may be renewed so as to pre- vent the running of limitations does not run while such writ of error is pending. Seaboard Air-Line Ry. v. Randolph, 126 Ga. 2.38, 55 S. E. 47. Where a railroad created a, nui- sance, and a suit therefor resulted in a nonsuit, and the company was merged with another, a renewal of the suit against the new company within six months after the nonsuit was a renewal against the original company, within Civ. Code 1910, § 4381. At- lantic Coast Line R. Co. v. Knapp, 139 Ga. 422, 77 S. E. 568. See also, as to dismissal or nonsuit under § 4386, Piedmont Hotel Co. v. Hender- son, 9 Ga. App. 672, 72 S. E. 51, and under § 3786, Southern Express Co. v. Sinclair, 135 Ga. 155, 68 S. E. 1113. 67. Koch V. Sheppard, 223 HI. 172, 79 ISr. E. 52, aff'g judg. 134 111. App. 266; Wiehe v. Atkins, 126 111. App. OOMMBSTCEMENT OF ACTION^ EtO. 1543 relies on Code, § 3455, providing that, if the plaintiff fails in a suit for any cause except negligence in its prosecution, a new suit brought within six months shall be deemed a continuation of the first, before such a suit can be held a continuation, the burden is on the plaintiff to allege in his petition in the second action facts shoeing that the dismissal of the first was not caused by any negli- gence on his part.^' In Missouri, where plaintiffs, the owners of land, instituted an action before the running of the period of limi- tations, they could thereafter suffer a voluntary nonsuit, and within a year institute a new action, which would not be barred by limitations even though the period had then run, provided it in- volved the same issues as the first.^^ The Michigan statute, pro- viding that if an action commenced within the time allowed there- 1; Boyee v. Snow, 187 111. 181, 58 N. E. 4013, aff'g judg. 88 111. App. 402. If, when a case is regularly called upon the docket, and the plaintiff not appearing, the court dismisses his ac- tion, he suffers an involuntary non- suit, within the meaning of section 35 of the statute of limitations. Sehnert v. Schipper & Block, 168 111. App. 345. The distinction between voluntary and involuntary nonsuits, as affect- ing the period of limitations within which an action for death may be brought, is material only when the nonsuit occurs after the period al- lowed by the statute for bringing suit, as the law does not limit the number of successive suits that may be brought within the year allowed by the injuries act. Heimberger v. Elliot Frog & Switch Co., 245 111. 448, 92 N. E. 297. And se6 Adams v. Hol- den. 111 Iowa 54, 82 N. W. 468, as to the application of Eev. St. 111. c. 83, § 25. 68. Ceprley v. Incorporated Town of Paton, Greene County, 120 Iowa 559, 95 N. W. 179; Pardee v. Incor- porated Town of Mechanicsville, 101 Iowa 266, 70 N. W. 189. 69. Norton v. iReed, 253 Mo. 236, 161 S. W. 842. The dismissal of an action on plaintiff's motion without a trial on the merits is not a common law judg- ment of retraxit, so that plaintiff could again institute suit within one year after suffering such a nonsuit pursuant to statute. Johnson v. Metropolitan St. Ry. Co., 177 Mo. App. 298, 164 S. W. 128. Rev. St. 1909, § 1900, providing that plaintiff may have one year ad- ditional time to bring suit after non- suit does not apply where there was a final judgment on a demurrer to the merits. Johnson v. United Rys. Co. of St. Louis, 243 Mo. 278, 147 S. W. 1077. It has no application to an action to set aside a tax sale barred by the limitation section of a municipal charter. Meriwether v. Overly, 228 Mo. 218, 129 S. W. 1. Plaintiff having a right to sue at once for an accounting on notice of an attempted forfeiture of his rights in a partnership, or to wait till ter- 1544 Statutes of Limitation. for be defeated for any matter of form, or if, after verdict for plaintiff, the judgment be reversed, plaintiff may commence a new action for the same cause witbin one year, authorizes plaintiff to institute a new action within a year after a former suit was dis- missed because of a mistake in the form of the remedy.™ An action by a mortgagee against an insurance company having been dismissed pursuant to stipulation that his claim might be asserted in an action by the insured, was not a " volimtary discontinuance," within New York Code Civ. Proc, §! 405, so that the claim was not barred, though the answer was not filed until more than twelve months after the accrual of such claim.''^ The dismissal of plaintiff's suit on account of his failure to file a declaration does not conclude his right of action, and hence a second suit, brought mination of the time for wihioh the- partnersliip was formed, his com- mencement of a, suit at once, which •was dismissed before final judgment, did not start the statute of limita- tions running, so as to affect the time for bringing action after termi- nation of the partnership. Steinbach V. Murphy, 143 Mo. App. 537, 128 S. W. 207. See also, as to dismissal or nonsuit in general: Harris v. Quincy, etc., E,y. Co., 134 Mo. App. 45, 101 S. W. 601; Missouri & S. W. Land Co. v. Quinn, 173 Mo. 563, 73 S. W. 184; Wetmore y. Crouch, 188 Mo. 647, 87 S. W. 954; Estes v. Fry, 166 Mo. 70, 65 S. W. 741. 70. McMillan v. Reaume, 137 Mich. 1, 11 Detroit Leg. N. 168, 100 N. W. 166, 109 Am. St. Rep. 666, under Comp. Laws, § 9738. Where a demurrer to a declaration is sustained because the remedy is in equity, the action is defeated by a defect of form, within Pub. St. Mass. c. 136, § 12, providing that, if an ac- tion commenced against an executor or administrator before the expira- tion of two years from the time of his giving bond be defeated by a defect in the form of the writ or a mistake in the form of the proceeding, plaintiff may commence a new action for the same cause within one year there- after. Taft V. Stow, 174 Mass. 171, 54 N. E. 506. 71. O'Neil V. Franklin Fire Ins. Co. of Philadelphia, 159 App. Div. 313, 145 N. Y. Supp. 432. The commencement of an action against defendant for an injunction and damages, by reason of a viaduct constructed in a street and the opera- tion of trains over the same, which action was voluntarily discontinued, was insufl&cient to interrupt the stat- ute of limitations, so as to prevent the railroad company from acquiring a prescriptive right to use the via- duct, on the lapse of the statutory period. Foster v. New York Cent. & H. R. R. Co., 118 App. Div. 143, 103 N. Y. Supp. 531. And see, as to ap- plication of section 405, Conolly v. Hyams, 176 N. Y. 403, 68 N. E. 662. Commencement of Action^ Etc. 1545 within twelve months after dismissal of the first, is not barred by the Tennessee statute limiting the time in which the action may be brought to one year.'^ The North Carolina Eevisal 1905, § 370, permitting a new suit within twelve months after nonsuit, does not abridge the statutes of limitation, and hence a suit for trespass to land is properly brought within three years from the date thereof, though more than one year after nonsuit on the same cause of action.''* Under the Rhode Island statute, a nonsuit is not an adjudication on the merits, and plaintiff may, within a year thereafter, institute a new action.'* Under the express pro- 72. Minton v. lia Follette Coal, Iron & E. Co., 117 Tenn. 415, 101 S. W. 178. The statute applies to a voluntary nonsuit by the plaintiff. Hooper v. Atlanta, K. & N. Ey. Co., 106 Tenn. 28, 60 S. W. 607, 53 L. E. A. 931. The Ohio statute does not entitle a plaintiff to bring a new action where his former action was dis- missed on his own motion without trial. Irwin v. Lloyd, 20 Ohio Cir. Ct. E. 339, 11 O. C. D. 212. 73. Caldwell Land & Lumber Co. v. Hayes, 157 N. C. 333, 72 S. E. 1078. Plaintiff having been nonsuited upon the ground that under the form of the pleadings, taken in connection with the evidence, a direct action to charge the land with indebtedness should have been brought instead of ejectment, he may bring another ac- tion within a year. Henderson v. EUer, 147 N. C. 583, 61 S. E. 446. Kirby's Dig. Ark., § 5083, provid- ing that plaintiff, suffering a non- suit, may commence a new action within one year, does not limit, but extends, the period provided by the general statute of limitations applic- able. Williford v. Williford, 102 Ark. 65, 143 S. W. 132; Love v. Katn, 93 Ark. 215, 124 S. W. 259; Dressier v. Carpenter, 107 Ark. 353, 155 S. W. 108. A dismissal of an action in jus- tice's court, on motion of plaintiff, without any ruling on motion for judgment on the pleadings argued and submitted, is not on the merits, within Utah Comp. Laws 1907, § 2893; and an action commenced within one year after dismissal is not barred by limitations. Quealy v. Sullivan, 42 Utah 565, 132 Pac. 4. An action, voluntarily dismissed by plaintiff, fails " otherwise than on the merits," within section 2893. Luke V. Bennion, 36 Utah 61, 106 Pac. 712. Where a nonsuit is granted for any reason, an action fails otherwise than on the merits, within section 2893. Williams v. Nelson (Utah), 145 Pac. 89. 74. Sullivan v. John E. White & Son, Inc., 36 R. I. 488, 90 Atl. 738, under Gen. Laws 1909, c. 284, § 9. And see Pesce v. Mondare, 30 E. I. 247, 74 Atl. 913. Where plaintiff sued upon a cause of action not yet barred, and judg- ment of nonsuit was entered, plain- tiff was entitled under Eev. Codes Mont., § 6464, to commence an ac- 1546 Statutes of Limitation. visions of the Oregon statute, the time during which an appeal from a voluntary nonsuit v^as pending should be excluded in computing the time for the commencement of a second action.''^ In West Virginia, where an action is dismissed, the time of its pen- dency is to be excluded from computation of limitations on a new suit for the debt.''^ § 308(5). New action in different forum. Under the Georgia statute, granting the right to commence a new action within six months after discontinuance, dismissal, or nonsuit, the new action may be brought in any court having juris- diction thereof in the State.'^ Under the North Carolina statute. tion for the same cause within a year of dismissal, though limitations had run against the original action. Wilson V. Norris, 43 Mont. 454, 117 Pac. 100. Where a party sues for relief on the ground of fraud within Wilson's Rev. & Ann. St. Old. 1903, § 42il6, and on the trial, by leave, dismisses the action without prejudice, more than two years after his right of ac- tion accrued, and brings a, second ac- tion within a year from the dismissal of the first, the bar of the statute is not let in because of section 4221. Wilson V. Wheeler, 28 Okl. 726, 115 Pac. 1117. A properly instituted claim or ac- tion which is voluntarily dismissed Or abandoned cannot be used to save a subsequent action from being barred by limitations, under Burns' 'St. Ind. 1908, § 301. Pennsylvania Co. V. Good (Ind. App.), 103 N. E. 672. In Texas, a suit voluntarily dis- missed without a trial on the merits does not interrupt limitations. Mitchell V. Thomas (Tex. ^Civ. App.), 172 iS. W. 715. 75. Hutch ings v, Eoyal Bakery & Confectionary Co., 66 Or. 301, 131 Pac. 514. An appeal from an ex parte order of the clerk admitting a will and co- dicil to probate as authorized by Va. Code 1904, § 2639a, is not a new suit within section 2934, authorizing the commencement of a new suit where limitations have run pending an ori- ginal proceeding, so that a will con- test under section 2544. having failed, the contestants could not appeal from the order of probate, after the ori- ginal time for such appeal had ex- pired. Tyson v. Scott, 116 Va. ^843, '81 S. E. 57. 76. Hevener v. Hannah, 59 W. Va. 476, 53 S. E. 635. 77. Cox V. Strickland, 120 Ga. 104, 47 S. E. 913, under Civ. Code 1895, § 3786. But the Code provision does not apply where a suit brought in a State court is removed by defendant to a, federal court, and there dis- missed on plaintiff's motion, and ap- plies only to a case pending in a State court. Webb v. Southern Cot- ton Oil Co., 131 Ga. 682, 63 S. E. 135. Commencement oe Action, Etc. 1547 the plaintiff taking a nonsuit in a case before the federal court could bring another suit for the same cause of action at any time within a year.''* But, under the New York statute, providing that if an action is commenced within the time limited therefor, and the action is terminated in any other manner than by a voluntary discontinuance, or a dismissal, or a final judgment on the merits, plaintiff may commence a new action, where an alleged libellous article was published in October, 1896, an action commenced there- for in April, 1899, was barred, notwithstanding that an action filed in June, 1898, within the statutory period of limitation, in the United States circuit court to recover damages for the same libel had been dismissed for want of jurisdiction, since under the con- stitution the legislature had power to prescribe rules only for the courts of the State, and hence the Code relates only to such courts.™ Where the jurisdiction given a federal court to enforce a remedy on a contractor's bond given for government work is exclusive, the commencement of an action on such bond in a State court of Colorado, which was afterwards dismissed, did not ex- tend the time for bringing a new action in the federal court by virtue of the State statute.*" § 308(6). Failure of action for want of jurisdiction. Where plaintiff sues in a court having jurisdiction, of the sub- ject-matter, and after the bar of the statute has attached the same is dismissed, because of a ruling indicating that the court has no jurisdiction of the person of the defendant, the action may be renewed, under the Georgia statute, within six months, in another court of the State having jurisdiction of the person and of the subject-matter.*^ Where a plaintiff recovered judgment before a justice, and again, on appeal to the district court, but 78. Fleming v. Southern Ey. Co., §§ 384, 405 and Const. 1846, art. 6, 138 N. C. 80, 38 S. E. 253, under § 24. Clark's Code (3d ed.), §§ 142, 166. 80. United States v. Boomer, 183 79. Solomon v. Bennett, 6i2 App. Fed. 726, 730, 106 C. C. A. 164, 168. Div. 56, 70 N. Y. Supp. B56, 32 Civ. 81. Atlanta, K. & N. Ry. Co. v, Proc, R. 104, under Code Civ. Proc, Wilson, 119 Ga. ' 781, 47 S. E. 366, under Civ. Code 1895, § 3786. 1548 Statutes of Limitation. such judgment was reversed and the action dismissed by the su- preme court, on the ground that the amount involved was beyond the jurisdiction of the justice, the action " failed otherwise than upon the merits," and, under the Kansas statute, a second action is not barred if commenced within one year after such dismissal.*^ Where a proceeding was the commencement of an action, within the meaning of the Ohio statute, and the plaintiff failed otherwise than upon the merits, the cause being dismissed on the ground that the federal court in which the action was brought had no juris- diction over the parties or subject-matter, he is entitled to com- mence a new action within a year from such date, though, under the statute, his action would be barred.^^ In an action for the death of a horse caused by an accident, for which the limitation prescribed by Greater New York Charter is one year, evidence of a prior action by the same plaintiff against the same defendant, which was dismissed on the ground of want of jurisdiction, with- out any showing that the former action was for the same cause, or that it was commenced within a year, does not entitle plaintiff to the benefit of Code Civ. Proc, § 405, providing that, if an action is commenced within the time limited therefor, the plaintiff may commence a new action for the same cause.^* The commencement of an action in a court not having jurisdiction to try it does not suspend the running of the statute of limitations, in Tennessee. ^^ Where executors bring a suit in equity to settle their accounts, setting up in thedr bill that one H. claims a debt against their decedent, and denying it, and asking the court to adjudicate as to 82. Ball V. Biggam, 6 Kan. App. 85. Sweet v. Chattanooga Electric 42, 49 Pao. 678, under Civ. Code, Idght Co., 97 Tenn. 252, 36 S. W. § 33. 1090, under Mill. & V. Code, § 34*9, 83. Pittsburg, etc., Ry. Co. v. Be- providing that if an action is com- mis, 64 Ohio St. 26, 59 N. E. 745, menced within the time limited, but under Rev. St. §§ 4983, 4991. judgment is rendered against the 84. Thomas v. City of New York, plaintifiF on any grounds not oonclud- 123 N. Y. Supp. 113, under Greater ing his rig'ht of action, be may bring New York Charter (Laws 1901, c. a new action within a year thereafter. 466), § 361, as amended 'by (Laws 1906, c. 550. I Commencement of Action, Etc. 1549 its validity, and H. files an answer setting up the debt and asking a decree for it against the estate, and the bill is dismissed for want of jurisdiction in equity, H. has one year after such dismissal to save a suit by him from limitations by force of the West Virginia statute.*^ , § 308(7). Failure for defects as to parties. The Virginia statute, which provides that where an action is brought against the wrong defendant, and judgment is rendered against the plaintiff solely on such ground, he may bring an action within one year thereafter, notwithstanding the expiration of the time within which the action must otherwise have been brought applies to any case where, through a misapprehension of the facts or for any other reason, without fraud, the action is brought against the wrong party, and is for that reason dismissed by the court.^^ Though a suit by individual members of a commercial firm for a tort committed to the damage of the firm has been dis- missed, on the ground that it should have been brought in the firm name, the suit none the less interrupts the running of pre- scription, in Louisiana, against the partnership during its pen- dency.** The quashing of the service of summons because made by the coroner, authorized to serve process only where the sheriff is a party, based on the fact that the sheriff was improperly joined as a party, results in failure by plaintiff otherwise than on the merits, within the Wyoming statute providing that, where plain- tiff in an action commenced in time fails otherwise than on the merits, he may commence a new action within one year thereafter, 86. Hevener v. Hannah, 59 W. Va. such decree for error prosecute his 476, 53 S. E. 635, under Code 1899, action for the same matter at law. c. 104, § 19. I McKinney v. Springer, 3 Ind. 59, 54 A party who has applied to chanc- Am. Dec. 470. ery for relief and obtained a decree, ' 87. Norfolk & A. Terminal Co. v. when his remedy was exclusively at^ Rotolo, 179 Fed. 639, 103 C. C. A. law, may, under the proviso of Ind.! 197, under Code Va. 1904, § 2934. Acts 1838, § 11, regulating the prac-^ [ i 88. B. J. Wolf & Sons v. New Or- tice in suits at law, at any time' [ leans Tailor-Made Pants Co., 110 La. within a year after the reversal of •*- 427, 34 So. 590. 1550 Statutes ob" Limitation. in which case the bar of limitations is not applicable.*' A dis- missal from an action of an nnnecesssary and improper party de- fendant does not result in creating a new cause of action.'" § 308(8). Failure of action for want of, or defects in, process or service thereof. Failure of an officer to make return of a summons on the return day is negligence, within the Michigan statute, authorizing a new action within one year where the writ fails of a sufficient service by neglect, etc., of the officer.'^ As an action, commenced in justice court by filing of complaint, does not, under the Utah stat- utes, terminate for mere delay in serving the summons, it does not, till actually dismissed, " fail " within the statute, providing that if an action be seasonably commenced, and plaintiil fail therein otherwise than on the merits, and the time limited for the action shall have expired, plaintiff may commence a new action within a year after the failure.'^ Under the Vermont statute, providing that if, in an action commenced within the time limited by statute, the writ fails of sufficient service or return by unavoidable ac- cident, the plaintiff may have one year after the determination of the original suit to commence a new action, an action is com- menced when the writ is issued with the purpose on the plaintiff's part of having it served and proceeded with, although the writ fails of sufficient service through unavoidable mistake; an utter failure of service is as much within the contemplation of the stat- ute as a case in which something is done toward service, but not 89. Clause v. Columbia Savings & der a statute providing that an ac- !Loan Ass'n, 16 Wyo. 450, 95 Pac. 54, tion against a city for negligent in- under Rev. Ct. 1899, § 3465. jury shall be commenced within a 90. Patten v. Iroquois Furnace Co., year from the time the injury is re- 124 111. App. 1. ceived. Wilton v. City of Detroit, 91. Ricaby v. Gentle, 123 Mich. 336, 138 Mich. 67, 11 Detroit Leg. N. 467, 6 Detroit Leg. N. 765, 80 N. W. 1093, 100 N. W. 1020. under 3 Comp. Laws 1897, § 9738. 92. Luke v. Bennion, 36 Utah 61, Section 9738 has no application to 106 Pac. 712, under Comp. Laws an action barred because the original 1888, § 3544 et seq., and Rev. St. 1898, service was on the wrong person, un- § 3893. Commencement of Action,, Etc. 1551 enough to amount to a legal service.'^ An order to set aside a judgment on the ground that the summons was void is a final order within the Kansas statute, and terminates the action unless set aside on proceedings in error, and tolls the statute of limita- tions for one year, requiring the issuance of alias summons within that time to save the right of action if it was barred at the date of the entry of the order.^* § 308(9). Failure of action for defects in pleading. To bring within the Georgia statute an action which has been dismissed so as to make a new action stand on the same footing as to limitation as the original action, the declaration filed in the first instance must have been served upon defendant, and mere filing without serving is insufficient.'^ In Illinois, where a demur- 93. Tracy v. Grand Trunk Ry. Co., 76 Vt. 313, 57 Atl. 104, under V. S. iai4. Under North Carolina Code 1883, § 166, which provides that, if an ac- tion be commenced within the time limited, and plaintiff be nonsuited, he may commence an action within one year after such nonsuit, where pro- ceedings by an administrator for the sale of land of his intestate were get aside because of insufficient service of summons, such dismissal amounted to a, jUOnsuit within the statute. Har- ris V. Davenport, 132 N. C. 697, 44 e. E. 406. 94. Bank of Topeka v. Clark, 69 Kan. 864, 77 Pac. 92, under Code Civ. Proc, §§ 542, 543 (Gen. St. 1901, c. 80, §§ 5019, 5027). Under West Virginia Code, c. 104, § 19, providing that, if an action commenced within the time allowed by limitations be dismissed for any cause which could not be pleaded in bar of the action, another a/ction may be brought within one year after the dismissal thereof, an action com- menced by a summons which is void because it has a wrong return day is nevertheless effective to give one year after its dismissal for a new suit. Ketterman v. Dry Fork E. Co., 4» W. Va. 606, 37 S. E. 683. An action for wrongful death, where service of summons upon de- fendant railway company was defec- tive, and a later service was not made within 60 days from the at- tempted service, and not until after the expiration of the two years in which such action must be brought, is not within or saved by section 4991, Ohio Eev. St. providing that if, in an action commenced in due time, the plaintiJT fail otherwise than upon the merits, a new action may be com- menced within one year. Baltimore & O. R. Co. V. Collins, 11 0. C. D. 334. 95. McClendon v. Hernando Phos- phate Co., 100 Ga. 219, 28 S. E. 152, under Code 1882, § 2933. Plaintiff's postponing the mailing 155a Statutes of Limitation. rer was sustained to plaintiff's original declaration, on the ground that it failed to state a cause of action with certainty only, and plaintiff suffered an involuntary nonsuit hy reason thereof, he was entitled to file a new suit within a year after such nonsuit, though the time within which the action could have been brought originally had expired during the pendency of the original action.'^ North Carolina Code, § 166, allowing a new action to be instituted within one year after a reversal of a former judg- ment obtained on a suit on such cause of action, authorizes the commencement of a new suit within such time, though the com- plaint in the first action is insufficient to state a cause of action.''' One whose action, commenced within the time allowed by law, has been erroneously dismissed on a plea in abatement for vari- ance between the writ and the declaration, after refusal to permit an amendment of the writ, may bring a new action having the same purpose as the one dismissed, within a year after the dis- of his petition so that a slight inter- ruption in the mail service prevented its receipt in time for filing on the date specified therefor in the original notice, thereby entitling defendant to dismissal of the action (Code 1873, § 2600), is negligence, within section 2537, declaring that, if plaintiff fail in his action through any cause ex- cept negligence in its prosecution, a new suit, if brought within six months, shall be deemed' a continu- ance of the first. Conly v. Dugan, 105 Iowa 305, 74 N. W. 774. A suit begun by the issuance of a summons, and dismissed at rules for the mere failure of the plaintiff to file his declaration, will not save a sec- ond suit for the same cause of action,^ brought within one year after such dismissal, from the statute of limita- tions. Lawrence v. Winifrede Coal Co., 48 W. Va. 139, 35 S. E. -925. 96. Hinchliff v. Eudnik, 213 111. 569, 72 N. E. 691, under Limitation Act, § 25. Wher« a demurrer to a petition was sustained on the ground of mis- joinder of causes, and without other pleading a judgment wa,s entered that defendant was the owner and en- titled to possession of the property in question, the plaintiff, having com- menced his action in due time,, failed therein otherwise than on the merits within Kansas Code Civ. Proc, § 23 (Gen. St. 1909, § 5615), authorizing a new action within one year after such failure. New v. Smith, i86 Kan. 1, 119 Pac. 380. And see Becker v. Atchison, etc., By. Co., 70 Kan. 193, 78 Pac. 408. 97. Woodcock v. Bostie, 128 N. C. 043, 38 S. E. 881; Webb v. Hicks, 125 N. C. 201, 34 S. E. 395, denying rehearing 123 N. C. 244, 31 S. E. 479. Commencement of Action^ Etc. 1553 missal, though after his right of action would have been barred by limitation, had the dismissed action not be instituted.^* § 308(10). Identity of, or change in parties. A plaintiff in a suit to redeem from a mortgage is not aided, as against the bar of limitation, by the fact that a prior suit to redeem, which was dismissed, was brought within the time limited, by a different party as plaintiff, although based on the same grounds.®^ Under the Ohio statute, providing that where an ac- tion is commenced in due time, and the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action has expired, the plaintiff may commence a new action within one year after the date of such failure, a new action commenced within one year, but in which the parties are dif- ferent from the first action, cannot be maintained, since the new action must be the same as the first.-^ § 308(11). Decisions on review. The Illinois Limitation Act, providing that in certain cases where suit is brought within the required time, and the time ex- pires during the pendency thereof, the plaintiff on reversal, non- suit, etc., may commence a new action within one year thereafter, 98. Ryan v. Piney Coal & Ooke Co., thereafter by the same plaintiffs, ©9 W. Va. 693, 73 S. E. 330. And claiming in the same right, and see Duty v. Chesapeake & 0. Ry. Co., against the successors in interest of 70 W. Va. 14, 73 S. E. 331, where the former defendant. Alexander v. the declaration erroneously alleged Gordon, 101 Fed. 91, 41 C. C. A. 228, the wrong state under the laws of under Sand. & H. Dig. Ark. 1894, § which defendant was incorporated. 4841. 99. H. B. Olaflin Co. v. Middlesex 1. Larwill v. Burke, 19 Ohio Cir. Banking Co., 113 Fed. 968 (C. C, Ot. Rep. 449, 513, 10 0. C. D. 605, Ark.). under Rev. St., § 4991. See also, as llhe record in an equity suit to re- to identity of, or change in parties: cover possession of land, which was Anthony Inv. Co. v. Law, 63 Kan. dismissed without prejudice, is ad- 193, 61 Pac. 745, rev'g judg. 9 Kan. missible to avoid the bar of limita- App. 890, 58 Pac. 1116; Meddis v, tion in an action of ejectment for the Wilson, 175 Mo. 136, 74 S. W. 984. same land commenced within a year 98 1554 Statutes of Limitation. does not mean that a new action may be commenced within one year of judgment, etc., if the original declaration did not state a cause of action, but it applies to defects by which a party is de- feated as stated therein.^ Under New York Code, Civ. Proc, § 405, providing that, where an action is terminated by a judgment entered on a decision of the Appellate Division which reversed a judgment of the lower court without awarding a new trial, if such action was commenced within the time limited therefor, the plaintiff may commence a new action for the same cause after the expiration of the time so limited and within a year after such re- versal or termination, and also declaring that if the prior action is terminated in any other manner than by a voluntary discontinu- ance, a dismissal of the complaint for neglect to prosecute, or a final judgment on the merits, such new action may be commenced on the same conditions, where plaintiff in former actions against the same defendants for the same cause recovered a judgment which was reversed and new trials were ordered by the appellate court, the actions were not terminated in any of the modes referred to in such section, and hence plaintiff was entitled to maintain new 2. Walters v. City of Ottawa, 175 Where a judgment for plaintiff 111. App. 130. was reversed by the appellate court Where a suit is brought in apt on a, finding of facts difi'erent from time, and a declaration filed imper- that found by the trial court, which fectly stating the cause of action, precluded a recovery, such judgment subsequent amendments, though filed not appealed from was res judicata after limitations against a new ac- under section 88, and plaintiff was tion have run, will not be barred, if not entitled to bring a new suit un- they amount to not more than a re- der section 35, which has no appli- statement in a, different form of the cation to a judgment of reversal with cause of action originally declared a finding of facts entered by the ap- on; but, if they set up an entirely pellate court pursuant to Prae. Act, new and distinct cause of action, § 87. Larlcins v. Terminal R. Ass'n, limitation will be successfully 221 111. 428, 77 N. E. 678, aff'g judg. pleaded. George B. S-wift & Co. v. 113 111. App. 366, and 122 111. App. Gaylord, 229 111. 330, 83 N. B. 299; 246. Bradley v. Chicago-Virden Coal Co., Section 25 applies only to involun- S31 111. 632, 83 N. E. 424. And see tary, not to voluntary, nonsuits. McAndrews v. Chicago, etc., By. Co., Koch v. Sheppard, 233 111. 172, 79 N. 163 Fed. 856, 89 C. C. A. 546. E. 52, aff'g decree 124 111. App. 266. Commencement of Action, Etc. 1555 actions thereunder.^ Alabama Code 1896, § 2806, providing for additional time to bring a second action after arrest or reversal of judgment on appeal, applies only to actions at law, and not to suits in cbancery.* Under California Code Civ. Proc, § 355, providing that, if an action is commenced within the time pre- scribed therefor and a judgment for plaintiff is reversed on " ap- peal," the plaintiff may commence a new action within a year after reversal, the commencement of a suit and the bringing of an action within a year from the annulling of a decree therein on a " writ of review " does not prevent the bar of limitations.^ Under the Missouri statute, where the Supreme Court has rendered a judg- ment merely reversing the judgment for plaintiff on the law and the facts, plaintiff cannot within a year bring another action on the same cause of action; such judgment not being equivalent to a nonsuit, the " reversal " mentioned in the statute meaning a 3. Bellinger v. German Ins. Co. of Freeport, 189 N. Y. 533, 83 N. E. 1124, aff'g judg. 113 App. Div. 917, 100 N. Y. Supp. iZi, 51 Misc. Rep. 463. And see Wooster v. Forty-Second St. & Grand St. Ferry Co., 71 N. Y. 471. Code Civ. Proc, § 405, applies to an action for wrongful death by an administrator for the next of kin, though section 1903 limits the time to bring such action to two years, in spite of section 414. Hoffman v. Delaware & Hudson Co., 147 N". Y. Supp. 475. 4. Wood-Dickerson Supply Co. v. Cocciola, 153 Ala. '555, 45 So. 192. Code Ala., § 2623, applies only where the judgment of reversal is fatal to plaintiff's right to maintain the action in the form ■ in which it was first brought rather than where it is reversed on the merits. Carroll V. Alabama G. S. E. Co., 60 Fed. 549 (C. C, Ala.). 5. Fay v. Costa, 2 Cal. App. 241, 83 Pac. 275. Under Florida Gen. St. 1906, §§ 1715, 1725, a suit to reform and en- force a fire insurance policy is barred hy limitations when not commenced within five years after the accrual of the right of action or within one year after a judgment for plaintiff on the policy has been reversed. Erickson V. Insurance Co. of North America, 66 Fla. 154, 63 So. 716. The Kansas Gen. St. 1901, § 4451, providing for the commencement of a new action within one year after the reversal or failure of a prior ac- tion, applies to an action on a bond given by a contractor for public work under sections 5130, 5131, to secure payment for labor or material, re- quired by such statute to be com- menced within six months after com- pletion of the work. Kansas City Hydraulic Press Brick Co. v. National Surety Co., 1,67 Fed. 496, rev'g judg. 157 Fed. 620 (C. C. A., Mo.). 15,5& Statutes of Limitatioit. reversal in which, the merits were not passed on.^ Under South Dakota Code Civ. Proc, § 73, a proceeding before a referee for the assessment of the damages caused defendant by an improvi- dently issued injunction constitutes the commencement of an ac- tion, and, such assessment having been reversed on appeal, de- fendant has one year after reversal to commence a new action, regardless of the fact that the statute of limitations had run before such action was commenced.''' Where a complaint was dismissed, and exceptions, heard by the Appellate Division, overruled, and an appeal taken to the Court of Appeals, which affirmed, the year in which plaintiff could sue anew, under !N"ew York Code Civ. 6. Strottman v. St. Louis, etc., Rj. Co., 338 Mo. 154, 138 S. W. 187. And see A. M. Stevens Lumber Co. V. Kansas City Lumber Co., 73 Mo. App. 248; Hewitt v. Steele, 136 Mo. 337, 38 S. W. 83. Under the provisions of Montana Code Civ. Proc, § 547, an action hav- ing been terminated by a judgment of affirmance of a judgment of dis- missal on the pleadings, which was not on the merits, a second action on such cause of action may be com- menced within a year after such ter- mination. Glass V. Basin & Bay State Min. Co., 34 Mont. 88, 85 Pac. 746. Oklahoma Comp. Laws 1909, § 5555, providing that a new action may be commenced within one year after reversal or failure, is inap- plicable to actions under section '5945, authorizing recovery for wrongful death in an action commenced within two years. Partee v. St. Louis & S. F. R. Co., 204 Fed. 970, 133 C. C. A. 392. Under Shannon's Code Tenn., § 4446, a defendant, who secured a re- versal because the action was improp- erly brought in a court of chancery, will be enjoined by the decree of re- versal from setting up the defense of limitations against a new action begun within a year. Swift & Co. v. Memphis Cold Storage Warehouse Co., 138 Tenn. 83, 158 S. W. 480. 7. Quarnberg v. City of Chamber- lain, a9 S. D. 377, 137 N. W. 405. See, as to the rule as to decisions on review under the statutes of other jurisdictions : Mich. — Pattridge v. Lott, 15 Mich. 351. N. C— Webb v. Hicks, 135 iN". C. 201, 34 S. E. 395, denying rohearing 133 N". C. 344, 31 S. E. 479. Pa. — Spees v. Boggs, 304 Pa. 504, 54 Atl. 346. S. C— Richardson v. Riley, 67 S. C. 53, 45 S. E. 104. Utah.— Gutheil v. Gilmer, 37 Utah 496, 76 Pac. 638. Va. — Bradley Salt Co. v. Norfolk Importing & Exporting Co. of Vir- ginia, 101 Fed. 681, 41 C. C. A. 600. Wash. — Eyno v. Snider, 58 Wash. 457, 109 Pac. 55. Commencement of Action, Etc. 1557 Proc, § 405, began to run from the affirmance by tbe Court of Appeals.* § 308(12). Action on set-off or counterclaim or cause of action alleged as defense. Limitation does not run against an action on a claim during the pendency of an action against the claimant, in which such claim is pleaded as a set-off, which action is eventually discontinued by the plaintiff.^ But a statute providing that, where the defendant has set up a counterclaim, and the action is discontinued, the time intervening between the commencement of the action - and its termination is not a part of the time limited for the commence- ment of an action by defendant on the counterclaim, does not apply to a defendant who has not actually filed his claim as a counter- claim.-^" Under the Wisconsin statute declaring that when a de- fendant has interposed an answer as a defense, the remedy upon which at the commencement of such action was not barred, and such complaint is dismissed, the time which intervenes between the commencement and the termination of the action shall be ex- cluded in determining limitations on the cause of action interposed by the defendant, it has been held that the time which elapsed between the filing and the dismissal of a suit to quiet title was not a part of the time limited for bringing an action for ejectment on the cause of action alleged as a defense in the former suit.-^^ But a statute giving one who has " suffered " a nonsuit a year within which to sue again has no application to one who has pleaded set-off, and has been thrown out of court by the dismissal of the main action.-^ 8. People ex rel. Nolan v. Prender- Code Civ. Proc, § 41®, and hence did gaat 150 N. Y. Supp. 683. not relieve a contestant of an execu- 9. United States v. Gillies, 144 Fed. tor's account, who obtained leave to 991 file objections, but did not file them 10. In re Schlesinger's Estate, 55 until after his claim was barred. N. y. Supp. 514, 36 App. Div. 77, 2 11. Preston v. Thayer, 137 Wis. Gibbons, 547; May v. Schlesinger, Id., 133, 10:6 N. W. 672. reVg In re May's Estate, 53 N. Y. 12. Liebke v. Thomas, 24 Mo. App. Supp. 710, 24 Misb. Eep. 456, 2 Gib- 24. bons, 547, so held as to New York 1558 Statutes of Limitation. ', § 309. Civil proceedings other than actions in general. A right of action against the government under a contract for cartage of imported goods in its custody, accrues as soon as the money becomes due, without prior presentation of the claim to the executive department for allowance ; and hence the six-years limi- tation in the Act of March 3, 1887, begins to run from that time, and is not interrupted by such presentation of the claim, or while it is under investigation, or in course of auditing by executive officers.^^ The citation of a surety on a guardian's bond to appear and state the condition of his principal's account, the guardian having died, is not an action at law or in equity, within the mean- ing of the Illinois statute of limitations ; and his appearance does not revive a right already barred to recover from such surety any balance due on the accotmt." In Kentucky, where an assignor for the benefit of creditors has a demand against one of his creditors, the assignment is, in legal effect, an appropriation by the assignor of the debt due to him to the satisfaction, pro tanto, of the debt due by him to his debtor, and as to this sum the statute of limita- tions does not apply.-'^ In Louisiana, the institution of executory proceedings on a mortgage note will interrupt prescription of the note, unless the proceedings are dismissed on motion of plaintiff.-^^ In ISTew York, the presentation of a claim against the State to a 13. United States v. Utz, 80 Fed. reversed United States v. Utz, supra. 848, 26 C. C. A. 184. 14. People v. Stewart, 29 111. App. See also, Mississippi Cent. R. R. 441. V. United States, 23 Ct. CI. (U. S.) 15. Cooper's Adm'r v. Cooper, 8 27; Ihrie v. United States, 21 Ct. CI. Ky. Law Rep. (abstract) 528. (U. S.) 316. 16. Tertrou v. Durand, 30 La. Ann. The presentation of a claim 1108. against the United States to the Waiver by defendant in executory treasury department for examination process of demand of payment and and allowance, as required by law, notice of process is an interruption bars the running of the statute of of prescription. Borland v. Law- limitations during the time con- rence, Man. Unrep. Cas. (La.) 331. Bumed in such investigation. United An order of seizure does not inter- States V. Lippitt, 100 U. S. 663, 25 rupt prescription on the note and L. Ed. 747, 15 Ct. CI. «22, followed, debt on which it is founded. Harrod Utz V. United States, 75 Fed. 648, v. Voorhies, 16 La. 254. Commencement of Action^ Etc. 1559 board appointed by the Legislature to examine into its merits is equivalent to the commencement of an action between citizens, so as to stop the running of limitations against the claim.^' In ISTebraska, where an action against a county upon a claim for a tort, or for unliquidated damages is commenced by filing a claim with the county board, and the claim is rejected by the board, and the claimant appeals from the board's action to the district court, his action will be deemed to have been commenced upon the date of his filihg his claim with the board.^^ In JS'ew Jersey, the run- ning of the statute of limitations is arrested, upon the filing of a bill asking for the sale of land, as to taxes properly assessed upon the land and not barred at the time, whether accruing before or after the filing of the bill.-^^ In Texas, merely posting notices of sale under a trust deed will not suspend the running of the statute of limitations.^* In Wis- consin, the presentation to the proper board of county supervisors of a claim for moneys paid on void tax certificates is the commence- ment of an action, and, if made within six years after the issue of the certificate or its assignment by the county, will prevent the bar of the statute from attaching.^-^ § 310. Presentation of claim against estate of decedent. In New York, presentation to an executor of a claim against the estate and its allowance by him is a liquidation of the claim, and fixes a new date for the running of limitations as of the date of 17. Coxe V. State, 144 N. Y. 396, firmation of sale of land sold under 39 N. E. 400. decree, to ascertain if there are any See Corkings v. State, 99 N. Y. taxes which are a lien upon the real 491, 3 N". E. 454, where a claim be- estate on the day of sale, and pro- fore the State Board of Audit was viding for the collection thereof from held to have been prosecuted with the fund realized by the sale, being due diligence, and therefore was not in effect a proceeding for the coUeo- barred. tion of taxes. 18. Wherry v. Pawnee County, 88 aO. Blaclcwell v. Barnett, 53 Tex. Neb. 503, 129 N. W. 1013. 3S6. 19. Barnes v. Brown, 1 Tenn. Ch. 21. Marsh v. St. Croix County App. 726, Shannon's Code, § 96.9, Sup'rs, 42 Wis. 355. providing for a reference, 'before con- 1560 Statutes of Limitation. presentation.^^ On presentation of a claim against a decedent's estate, the entry of an order of reference is the commencenient of an action for the purpose of determining the period of limitation.^* The presenting of the petition for the sale of realty of an estate for the payment of debts is the commencement of a legal proceeding for the payment of the claim and limitation will not run against it pending the proceeding, though the proceeding be not instituted by the claimant, but by the administrator for his benefit.^* In Illinois, the effect of filing a claim in the court of probate is to arrest the running of the statute against such claim.^^ In Kansas, a proceeding to establish a claim against an estate is begun when- ever a notice containing a copy of the instrument or account on which founded, and stating that it will be presented for allowance to the probate court at a time named, is served on the personal representative, so as to stop running of limitations.^ In Missis- sippi, limitations do not bar the claim of an administrator against the estate for an individual debt duly probated and not barred at his appointment.^^ In Massachussetts, the leaving of a claim against an estate with the register, and his indorsement before the- expiration of two years, is a beginning of suit sufficient to avoid 22. In re Nelson, 118 N. Y. Supp.' 26. Clifton v. Meuaer, 79 Kan. 655, 673, 63 Misc. Rep. 637. ^j 100 Pac. 645, and the controversy 23. Leahy v. Campbell, 75 N. Y. '■ need not be decided, or submitted Supp. 72, 70 App. Div. 137. for decision, before expiration of the 24. In re Sargent, 69 N. Y. Supp. limitation period, or even the day 105, 42 App. Div. 301, 3 Gibbons 507 ; first set for a hearing fall within that. In re Bradley's Estate, Id., aff'g 54 period. N. Y. Supp. 555, 35 Misc. Kep. 361, 27. Oliver v. Smith, 94 Miss. 879, S Gibbons 597. 49 So. 1; Sims v. Sims, 30 Miss. 333. 25. DeClerque v. Campbell, 135 111. Where a creditor procures his App. 357. See Viskniakki v. Bleak- claim to be registered, the statute of ley, 88 111. App. 613. limitations ceases to run, regardless But the making out of an account, of vrhether or not the proof of the swearing to it and presenting it to claim is sufficient to make it a an administrator out of court, does voucher to the personal representa- not arrest the running of the statute tive. Allen v. Hillman, 69 Miss. 235, with respect to the rights of the 13 So. 871. heirs in the real estate. Mayberry v. Moore, 137 111. App. 40. OOMMBWCEMENT OF ACTION, EtC. 1561 the bar of the statute, providing that no administrator shall be held to answer the suit of a creditor of his decedent unless it is com- menced withia two years from his giving bond.^* In Missouri, the presentment to the probate court for classification of a judg- ment against a testator on which neither execution nor scire facias can issue is, in effect, the institution of a suit on the judgment against the executor, and limitation ceases to run on such judg- ment from presentation.^' In ISTorth Carolina, the commencement of proceedings by an executor for leave to sell testator's land for the payment of debts is, as regards the statute of limitations, the commencement of an action against the testator's estate by the creditors, especially as to a claim which the executor acknowledges, and asks leave to pay.^** In Pennsylvania, the running of the statute of limitations is barred by the presentation of the claim to the auditor appointed to audit the accounts of the decedent's execu- tor, as provided by statute. ^^ In Tennessee, if a claim is filed, and reported by the clerk of the county court, and his report is con- firmed, this is itself the commencement of an action, and an ad- judication sufficient to prevent the bar of the statute.'^ And in Washington, the presentation of a claim for allowance, to the ad- ministrator of a deceased debtor, as required by statute, is the 28. Robinson v. Robinson, 173 him, it is not necessary to bring an Mass. a33, 58 N. E. 854. action to prevent the bar of the stat- 29. McFaul v. Haley, 166 Mo. 56, ute, as to the heirs as well as to the 6'5 S. W. 995. personal representative. Woodlief v. Exhibition of a demand against an Bragg, 108 N. C. 571, 13 S. E. 211. estate properly made, and the docket- 31. In re Agnew's Estate, 17 Pa. ing thereof in the probate court, ar- Super. Ct. 201. See also, In re Hel- rest the running of the statute of ler's Estate, 17 Pa. Co. Ct. R. 603, 5 limitations against the demand, Pa. Dist. R. 305; Appeal of Keyser, Nicholls-Shepard €o. v. Donavon, 67 124 Pa. 80, 16 Atl. 577, S3 W. N. C. Mo. App. 286. 201, S L. R. A. 159; In re Irvin's 30. Harris v. Davenport, 133 N. C. Estate, 6 Pa. Co. Ct. R. 583; In re 697, 44 S. E. 406; Wyrick v. Wyrick, Shand's Estate, 1 Pa. Co. Ct. R. 600. 106 N. C. 84, 10 S. E. 916. 32. Treece v. Carr (Tenn. Ch. Under Code, § 164, when a claim is App.), 58 S. W. 1078. See Woods v. filed with the personal representative Woods, 99 Tenn. 50, 41 S. W. 345; within a year after the grant of let- Wharton v. Marberry, 35 Tenn. 603. ters, and the same is admitted by 1562 Statutes of Limitation. commencement of an action within the statute.^' As to the effect of the presentation of claims against estates of decedents in other States on the statute of limitations, see the authorities cited in the note below.^* § 311. Presentation of claim against estate of insolvent or bank- rupt. An adjudication that a judgment debtor is a bankrupt does not operate as a stay of proceedings so as to stop the running of the statute of limitations against the judgment creditor's right to maintain supplementary proceedings.^^ The statute of limita- tions is a good defense to the suit of a creditor, who has proved his claim, in bankruptcy, but has neglected to bring his suit until a discharge in bankruptcy 'has been refused.^^ The limitation de- clared by section 2 of the bankrupt act, that a suit by or against an assignee, touching the property and rights of the bankrupt, must be brought within two years, does not extend to or include an application by the assignee for moneys paid into court, belong- ing, in part at least, to the bankrupt's estate, and directed to re- main in court to answer an alleged claim against it, when estab- lished.*^ The commencement of an action to sequestrate the prop- 33. Frew v. Clark, 34 Wash. 561, N. M. — Browning v. Browning, 3 76 Pac. 85. N". M. (Gild.) 659, 9 Pac. 677. 34. Cal. — In re Schroeder's Estate, OMo. — ^Taylor v. Thorn, 29 Ohio St. Myr. Prob. (Cal.) 7. 569. Colo. — Fox V. Lipe, 14 Colo. App. 8. G. — ^McMillin v. Brown, 3 Hill 258, 59 Pac. 850. Eq. 457. Fla. — Barnes t. Scott, 29 Fla. 285, Ta. — ^Crauford's Adm'r v. Smith's 11 So. 48; Deans v. Wilcoxon, 25 Fla. Ex'r, 93 Va. 623, 23 S. E. 235, 25 980, 7 So. 163. S. E. 657. Iowa. — ^Fritz v. Fritz, 93 Iowa 27, Wis. — Jones v. Keep's Estate, 23 61 N. W. 169; Johnston v. Johnston, Wis. 45. 36 Iowa 608. 35. Cleveland v. Johnson, 26 N. Y. ^y_ — Beddow v. Wilson, 28 Ky. Supp. 734, 5 Misc. Rep. 484. Law Rep. 661, 90 S. W. 228. 36. Hill v. Phillips, 14 E. I. 93. ia. — Elmore v. Ventress, 24 La. 37. Phillips v. Helmbold, 26 N. J. Ann. 382. Eq. (11 C. E. Green) 202 (1875). y. /. — Smith v. Crater, 43 N. J. Eq. (16 Stew.) 636, 12 Atl. 530. Commencement of Action, Etc. 1563 erty of a corporation by a creditor, and his exhibiting Ms claim against it, tolls the statute of limitations, both as to the corpora- tion and its stockholders.** The allowance and approval of claims in receivership proceedings prevents the running of the statute of limitations, and a subsequent motion of creditors for payment of their claims does not constitute the commencement of the action.^* In Alabama, one who contests a claim against an insolvent estate, in order to avail himself of the statute of limitations, must show that after the maturity of the debt the statutory bar was complete before the claim was filed.*" In Iowa, the depositing of a claim with an assignee for creditors within the time fixed by law is a commencement of an action on the claim.*^ In Maryland, the statute may be relied on against the claims of creditors in a cred- itors' suit, after the auditor has reported in favor of the claims to which the statute is set up as a bar, unless the party setting it up has before waived it, expressly or impliedly.*^ In Massachusetts, the statute of limitations does not run against a claim on an in- solvent debtor, after the publication of the messenger's notice of the issuing of a warrant against the debtor, under the statute. A claim not barred by the statute when such publication is made, may be proved at a meeting of the creditors held after it would otherwise have been barred.** In New York, the exhitition of the claim of a creditor against an absent or absconding debtor to his trustees is equivalent to the commencement of a suit against 38. Potts V. St. Paul Athletic Park Code, §§ 2017, 2018, which provide Asa'n, S4 Minn. 317, 87 N. W. 604; that a landlord's lien shall exist for Stevens v. Hause, Id. one year only after the rent falls 39. St. Louis Union Trust Co. v. due, and that the lien shall be effected St. Louis & S. P. Ry. Co. (Tex. Civ. by the commencement of an action App.), 146 S. W. 348, a receiver of for the rent within that ]time. a, railroad company held to have 42. Post v. Mackall, 3 Bland (Md.) saved claims of creditors against a 486. See also, Welch v. Stewart, 3 plea of limitations by allowing and Bland (Md.) 37. auditing them. 4^ Minot v. Thatcher, 48 Mass. 40. Woodruff v. Winston, 68 Ala. (7 Mete.) 348, 41 Am. Dee. 444, un- 412. der St. 1838, c. 163. And see Guild 41. Lacey v. Newcomb, 95 Iowa v. Hale, 15 Mass. 455, under St. 1793, 287, 63 N. W. 704, within Miller's c. 75, § 3. 1564 Statutes of Limitation. the debtor, so as to prevent the statute from attaching.^* In Ohio, mere presentation of a claim to an assignee for allowance under the statute, regulating the presentation of claims to an assignee, does not prevent a statute of limitations from running, but ap- proval is required.*® In Texas, vs^here the claims of creditors of assigning debtors are filed vs^ith the assignees within the time pre- scribed by law, no limitation can accrue thereafter while the estate is in process of settlement.*® § 312. Proceedings in other court or tribunal. An injunction granted in proceedings for limitation of liability restraining the further prosecution of pending actions for damages is in effect a removal of such actions into the admiralty court, where they are to be considered as continued for all purposes of the statute of limitations.*' The commencement of a contest in the United States land department will not stop the running of the statute of limitations of the State. *^ Under Louisiana Civil Code, § 3484, providing that a legal prescription takes place when the possessor has been cited to appear before a court of justice, in a suit for damages arising from an obstruction on a sidewalk, suit previously brought in the circuit court of the United States inter- rupts prescription, though that court had no jurisdiction ratione personae; the plaintiff being a citation of Louisiana.*^ The Oregon statute, making the presentation of a State claim to the Legislature prevent its being barred by the statute of limitations, gives the claimant the right to sue after the passage of the act, and his claim is not barred for the lapse of the statutory time after the taking effect of the act, whether presented to the Legislature or not.^" Where A. and B. are codefendants, and in the course 44. Peck V. Trustees of Randall, 1 47. Union Steamboat Co. v. Chaf- Johns. (N. y.) 165. fin's Adm'rs, 204 Fed. 413. 45. Burrows v. Hussong, 31 Ohio 48. Southern Pac. R. Co. v. Cir. Ct. R. 211, under Ohio Rev. St. Whitaker, 109 Cal. 268, 41 Pac. 1083. § 6353. 49. Blume v. City of New Orleans,. 46. McCord v. Sprinkel, 105 Tex. 104 La. 345, 29 So. 106. 150, 141 S. W. 945, aff'g Sprinkel v. 50. Ketchum v. State, 2 Or. 103. MdCord (Civ. App.), 129 S. W. 379. Commencement of Action^ Etc. 1565 of judicial inquiry the indebtedness of A. to B. is found, B., or his creditor pursuing his rights in B's name, may avail himself of this to repel the effect of lapse of time, or to defeat the opera- tion of the statute of limitations, in a subsequent suit against A.^^ To a plea of the statute of limitations, the plaintiffs replied, setting forth an action against the same defendants, brought within the period of limitation by one of the present plaintiffs upon the same cause of action and arrest of judgment, and that the present action was brought within a year, it was held that the replication was bad, as all the plaintiffs did not join in the first action.^^ § 313. Excuses for delay. Where plaintiff, one of two joint makers of a note, paid it at maturity, and the defendant requested him to " hold up the note until he could pay his part," this request was not a promise not to plead limitations, and plaintiff could not excuse his delay to sue upon that ground.^* The plea of the statute of limitations cannot be defeated, for no other reason than that the plaintiff supposed, if he sued, he could not recover.^* An action will not lie by the purchaser of land at execution sale to set aside an alleged fraudu- lent certificate of redemption, more than three years after the dis- covery of the fraud, such limitation being prescribed by statute for actions for relief on the ground of fraud, though, after the dis- covery of the fraud, the commencement of suit was delayed by negotiations with reference to settlements and owing to the ill health of plaintiff. ^^ The fact that by the clerk's fault citation was not issued before the running of limitations did not bar the action.^^ Poverty and inability to bear litigation are no excuse for failure to bring suit to recover land.^'^ 51. Fahs V. Taylor, la Ohio 104. 55. Carroll v. Hill Tract Imp. Co., 52. Grow V. State, 23 Ark. 684. 44 Wash. 569, 87 Pac. 835. 53. Liverman t. Cahoon, 156 N. C. 56. Western Union Telegraph Co. 187, 72 S. E. 327. v. Hill (Tex. Civ. App.), 162 S. W. 54. Commissioners of Sinking 382. Fund V. McDowell, 6 Ky. Law Rep. 57. Voight v. Raby, 90 Va. 799, 20 (abstract) 520. S. E. 824. THE AMERICAN AND ENGLISH STATUTES OF LIMITATIONS. Space permits only the most important of these statutes being here printed, but the pravisiona here given are in their exact language, and all amend- ments are included down to date. The following topics are covered in the text and notes of this book: Absence, §§ 237, 844, 245; Acknowledgments, § 83; Accounts, §§ 277-280; Adverse Use and Eight of Entry, §§ 254-256; Assumpsit, §§ 19, 23, 24; Co-contractors, § 285; Commencement of Action, § 290; Defendants' Estates, § 196; Disabilities, § 237; Dower, § 273; Effect of Foreign Statutes, § 8; Fraudulent Concealment, §§ 274-276; Injunction, § 243; Mortgages, § 223; Set-off, § 284; Simple Contracts, §§ 21, 23; Spe- cialties, §§ 21, 30-32, 37, 172. UNITED STATES. UNITED STATES EEVISED STATUTES. Crimes. — For treason or other capital offence, wilfull murder excepted, three years [§ 1043]. FoT offences not capital, except as provided in § 1043, three years [§ 1044, as amended by the Act of April 13, 1876, chap. 56, 19 Statutes at Large, p. 32]. For crimes under the revenue laws, five years [§ 1046]. Suits or prosecutions for penalties and forfeitures under the laws of the United States, -five years [§ 1047]. In civil prosecutions the Federal Courts follow the local State statutes of limitations. See supra, § 40o, n, 2, note 3. As to limitation in suits for the the infringement of patents, see supra, § 40o, n, 2. ALABAMA. CIVIL CODE (190Y) CHAP. 108, AET. 1. Section 4830. No limitation to certain specified actions by the State to re- cover land. — There s no Imitation of the time within which the State may [1567] 15'68i Statutes of Limitation. bring actions for the recovery of any of the land mentioned in Section 3859 of this Ctode (lands of State, and educational or charitable institutions). Sec. 4831. No limitation to action by Municipal Cotporation to recover land. There is no limitation of the time within vphich counties and other municipal corporations may bring actions for the recovery of lands belonging to them. Sec. 4832. (2793.) Limitation of action. — All other civil actions must be commenced aiter the cause of action has accrued within the period prescribed in this chapter and not afterwards. See. 4833. (3794.) Actions within Twenty Years.^Actions upon a judg- ment or decree of any court of the State, of the United States, or of any State or Territory of the United States. Sec. 4834. (3795.) Actions to be brought within Ten Years. — 1. Actions founded upon any contract or writing under seal. 3. Actions for the recovery of lands, tenements, or hereditaments, or the possession thereof, except as herein otherwise provided. 3. Motions and other actions against sheriffs, coroners, constables, and other public officers, for nonfeasance, misfeasance, or malfeasance in office. Sec. 4835. (3796.) Six Years. — 1. Actions for any trespass to person or liberty, such as false imprisonment or assault and battery. 3. Actions for any trespass to real or personal property. i3. Actions for the detention or conversion of personal property. 4. Actions founded on a promise in writing not under seal. 5. Actions for the recovery of money upon a loan, upon a stated or liqui- dated account, or for arrears of rent due upon a parol demise. 6. Actions for the use and occupation of land. 7. Motions, and other actions against the sureties of any sheriff, coroner, constable, or any public officer, or actions against the sureties of executors, administrators, or guardians, for any misfeasance or malfeasance whatever of their principal, the time to be computed from the act .done or omitted by their principal, which fixes the liability of the surety. 8. Motions and other actions against attorneys at law, for failure to pay over money of their clients, or for neglect or omission of duty, 9. Actions founded upon judgments obtained before justices of the peace of this State. 10. Actions upon any simple contract or specialty, not herein specifically enumerated. Sec. 4836. (3797.) Five Years. — 1. All actions founded on equities of re- demption, where lands have been sold under a decree of the court of chancery, existing in any person not a party to the proceedings, who claims under the mortgagor or grantor in the deed of trust. 3. (Sec. 5314, 3171). Bills in equity to annual probate partitions. Sec. 4837. (3798.) Four Years. — 1. All actions or motions against any surety to any writ of error, appeal, replevy, or forthcoming bond, executed in any cause in any of the courts of the United States, or of any other State or country except the State of Alabama. Sec. 4838. (3799.) Three Years. — 1. Actions to recover money due by open Alaska. 15Q9 or unliquidated account, the time to be computed from the date of the last item of the account, or from the time when, by contract or usage, the ac- count is due. Sec. 4839. (3800.) Two Years. — Actions by representatives to recover dam- ages for vrrongful act, omission or negligence causing death of the decedent, under sections ■2486 (37) and 3485 (36). Sec. 4840. (2801.) One Year. — 1. Actions for malicious prosecutions. 2. Actions for criminal conversation, for seduction, or breach of marriage promise. 3. Actions qwi tarn, or for a penalty given 'by statute to the party aggrieved, unless the statute imposing it prescribes a different limitation. 4. Actions of libel or slander. 5. Actions for any injury to the person or rights of another, not arising from contract, and not herein specifically enumerated. 6. Proceedings in court for disbarring an attorney. By section 3091 (674), the above provisions apply to suits in chancery. As to disabilities, see supra, section 337. Sec. 4841. (3802.) Agreement or Stipulation to Shorten Statute of Limi- tations void. — ^Any agreement or stipulation, verbal or written, whereby the time for the bringing of any action is limited to a time less than that pre- scribed by law for the bringing of such actions, is void. ALASKA. CODE OP CIVIL PBOCBDURB, §§ 835-845 ; COMPILED LAWS OF THE TEEEITOET OF ALASKA (1913), PP. 379-382. Sec. 836. (4.) Actions to be brought within Ten Years. — ^Actions for the recovery of real property, or for 'the recovery of the possession thereof. Sec. 837. (5.) 1. An action upon a judgment. 2. An action upon a sealed instrument. Sec. 833. (6.) Six Years. — 1. An action upon a contract or liability, express or implied, excepting those mentioned in section 837. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for waste or trespass upon real property. 4. An action for taking, detaining, or injuring personal property, includ- ing an action for the specific recovery thereof. Sec. 839. (7.) Three Years. — 1. An action against a marshal, coroner, or constaJble, upon a liability incurred by the doing of an act in his official capacity or in virtue of his office; or by the omission of an official duty, including the non-payment of money collected upon an execution, but not including an action for an escape. 2. An action upon a statute for penalty or forfeiture, where the action is given to the party aggrieved, or to such person and the United States, except where the statute imposing it prescribes a different limitation. 99 1570 Statutes of Limitation. Sec. 840. (8.) Two Years. — 1. An action for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract, and not herein especially enumerated. 3. An action upon a statute for a forfeiture or penalty to the United States. Sec. 841. (9.) One Year. — An action against the marshal or other officer for the escape of a person arrested or imprisoned on civil process. Sec. 843. (10.) Actions for penalties. — Actions for penalties' given to priv- ate individuals for prosecuting an offense, one year after its commission; or two years, if not so prosecuted, but prosecuted by the district attorney in behalf of the United States. Sec. 843. (H.) Other actions. — Actions for any cause not here provided for, must be commenced within ten years. AEIZOISTA EEVISED STATUTES 1913, CIVIL CODE, TITLE 6, PAET 3. Okap. I. — Limitation of Actions for Lajto. (3397.) Sec. 695. (1.) Suit against Possessor under Color of Title, Three Years. — To recover real property as against any person in peaceable and adverse possession thereof under title or color of title, three years. (3398.) Sec. 696. (3.) " Title " and "color of title " defined. (3299.) Sec. 697. (3.) Suit against Possessor under Deed; Forged Deed» Five Years. — To recover real property as against any person having peace- able and adverse possession thereof, cultivating, using, or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly recorded, shall be instituted within five years next after the cause of action shall have accrued, and not afterwards: provided that this section shall not apply to any one in possession of land, who in the absence of this section would deraign title through a forged deed; provided, further, that no one claiming under a forged deed, or a deed executed under a forged power of attorney, shall be allowed the benefits of this section. Sec. 698. — Any person who has a right of action for recovery of any lands, tenements, or hereditaments against another having peaceable and adverse possession thereof, cultivating, using and enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward. (3300.) See. 699. (4.) Restriction to 160 acres. — The peaceable and adverse possession contemplated in the preceding, section as against the person having right of action shall be construed to embrace not more than one hundred and sixty acres, including the improvements or the number of acres actually enclosed, should the same be less than one hundred and sixty axires, but when such posse.ssion is taken under some written memorandum of title, other than a deed, which fixes the boundaries of the possessor's claim and is duly Abizona. 1571 recorded, such peaceable possession shall be construed to be ritoet — Iowa. 1595 Sec. 2941. Five Years. — For the recovery of lands sold at judicial aalea. Sec. 2945. Three Years. — First. All actions founded upon any contract or liability, express or implied, not in writing. Second. All actions for trespass on lands or for libels. Third. All actions for taking or injuring any goods or chattels. Sec. 2946. One Year. — First. All actions for criminal conversation, assault and battery, and false imprisonment. Second. All actions for -words spoken, slandering the character of another. Third. All words spoken whereby special damages are sustained. Sec. 2947. One Year. — Against sheriffs or other officers, for escape of per- sons imprisoned on civil process. Sec. 2948. Two Years. — ^Against sheriffs or coroners, for misconduct, ex- cept for escapes. See. 2949. Two Years. — Actions upon penal statutes. Sec. 2950. Five Yearis. — Actions upon promissory notes, and other instru- ment in writing, not under seal. Sec. 2951. Ten Years. — ^Actions on writings under seal. Sec. 2954. Ten Years. — ^Actions on judgments and decrees. Sec. 2955. Other actions — ^five years. IOWA. REVISED ANNOTATED CODE, 1897, TITLE 18, CHAP. 2. Of LrMiTATioN or Actions. Sec. 3447. (2529.) Period of. — Actions may be brought within the times herein limited respectively after their causes accrue and not afterwards, ex- cept when otherwise specially declared : 1. Three Months. — ^Actions founded on injury to the person on account of defective roads, bridges, streets or sidewalks, within three months, unless written notice specifying the time, place and circumstances, of the injury shall have been served upon the county or municipal corporation to be charged within sixtif days from the happening of the injury. 2. One Year. — Actions to enforce the payment of a penalty or forfeiture under an ordinance, within one year. 3. Two Years. — Actions founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within tioo years; and those brought to set aside a will, within five years from the time the same is filed in the clerk's office for probate and notice thereof is given. 4. Actions to enforce a mechanic's lien, within two years from the expira- tion of the 30 or 90 days, as the case may be, for filing the claim as provided in the law relative to mechanic's liens. 5. Three Years. — Those against a sheriff or other public officer, growing out of a liability incurred by the doing of an act in an official capacity or by 1596 Statutes of Limitation. the omission of an official duty, including the non-payment of money collected on execution, within three years. 6. Five Years. — Those founded on unwritten contracts, those brought for injuries to property, or for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery, and all other actions not otherwise provided for in this respect, within five years. 7. Ten Years. — Those founded on written contracts, or on judgments of any courts, except those courts provided for in the next subdivision and those brought for the recovery of real property, within ten years. 8. Twenty Years. — Those founded on a judgment of a court of record, whether of this or of any other of the United 'States, or of the federal courts of the United States, within twenty years. Sec. 3448. (3530.) Fraud. Mistake. Trespass. — In actions for relief on the ground of fraud or mistake, and in actions for trespass to property, the cause of action shall not be deemed to have accrued until the fraud, mistake, or trespass complained of shall have been discovered by the party aggrieved. Sec. 3449. (2531.) Open Account. — Where there is a c&ntinuous open cur- rent account, the cause of action shall be deemed to have accrued on the date of the last item therein, as proved on the trial. Sec. 3450. (2533.) Commencement of Action. — The delivery of the origi- nal notice to |the sheriff of the proper county with intent that it be served immediately which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action. Sec. 3455. (2537.) Failure of Action. — If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be held a continuation of the first. Sec. 3456. (2539.) Admission in Writing. — Causes of action founded on contract are revived by an admission in writing, signed by the party to be charged, that the debt is unpaid, or by a like new promise to pay the same. Sec. 3457. (2540.) Counterclaim. — ^A counterclaim may be pleaded as a defense to any cause of action, notwithstanding the same is barred by the pro- visions of this chapter, if it was the property of the party pleading it at the time it became barred, and was not barred at the time the claim sued on originated; but no judgment thereon, except for costs, can be rendered in favor of the party so pleading the same. Sec. 3458. (2541.) Injunction or Statutory Prohibition. — ^When the com- mencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of such injunction or prohibition shall not be part of the time limited for the commencement of the action, except as herein otherwise provided. Sec. 3853. (2543.) School Fund. — The provisions of this chapter shall nob be applicable to any action brought on any contract for any part of the school fund. Kahsas. 1597 TiTM 7, Chap. 2. See. 1448. (903.) Action to recover Land sold for Tiazes. — 'No action for the recovery of real estate sold for the non-payment of taxes shall be brought after five years from the execution and recording of the treasurer's deed, unless the owner is at the time of such sale, a minor, insane person, or convict in the penitentiary, in which case such action must be brought within five years after such disability is removed. Title 16, Cbap. 5. Sec. 3313. (3365.) Action to' contest Guardian's Sale of Lands.— The rule prescribed in the sale of real property by executors shall be observed in rela- tion to the evidence necessary to show the regularity and validity of the sales of guardians; and no person can question the validity of any such sale after the lapse of five years from the time it was made. Title 17, Chap. 3. See. 3332. (2401.) No action for the recovery of any real estate sold or mortgaged by an executor or administrator can be maintained by any person claiming under the deceased, unless brought within five years after the sale by him or under the foreclosure of such mortgage. DASSLEe's general statutes 1919, CHAP. 95, AET. 3. Sec. 5608. (4360.) Limitation of Action for Recovery of Real Property. — §§ 15 (16). Actions for the recovery of real property, or for the determina- tion of any adverse claim or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter : First. An action for the recovery of real property sold on execution, brought by the execution debtor, his heirs, or any person claiming under him, by title acquired after the date of the judgment, within five years after the date of the recording of the deed made in pursuance of the sale. Second. An action for the recovery of real property sold by executors, ad- ministrators, or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date of the judgment or order, within five years after tho date of the recording of the deed made in pursuance of the sale. Third. An action for the recovery of real property sold for taxes, within tioo years after the date of the recording of the tax deed. 1598 Statutes of Limitation. Fourth. An action for the recovery of real property not hereinbefore pro- vided for, within fifteen years. Fifth. An action for the forcible entry and detention, or forcible detention Only, of real property, within two years. Sec. 5610. (4262.) Other Actions.— §§ 17(18). Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued, and not afterwards: First. Within five years: An action upon any agreement, contract, or promise in writing. Second. Within three years: An action upon a contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty. Third. Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the speciiio recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud. The cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. Fourth. Within one year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a. statute for penalty or forfeiture, except where the statute imposing it prescribes a differ- ent limitation. Fifth. An action upon the official bond or undertaking of an executor, ad- ministrator, guardian, sheriff, or any other officer, or upon the bond or under- taking given in attachment, injunction, arrest, or in any ease whatever re- quired by statute, can only be brought within five years after the cause of action shall have accrued. Sixth. An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued. Seventh. Any agreement for a, different time for the commencement of ac- tions from the times in this act provided shall be null and void as to such agreement. Sec. 5613. (4264.) Commencement of Action.— §§ 19(20). An action shall be deemed commenced within the meaning of this article, as to each defend- ant, at the date of the summons which is served on him, or on a, co-defendant who is a joint contractor, or otherwise united in interest with him. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this article when the party faithfully, properly and diligently endeavors to pro- cure a service; but such attempt must be followed by the first publication or service of the summons within sixty days. Sec. 5614. (4266.) Barred in Other State, barred here.— §§ 21(22). Where the cause of action has arisen in another State or country, between non-resi- dents of this State, and by the laws of the State or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this State. Kansas. 15'99 Sec. 5615. (4267.) New action may be commenced, when.— §§ 33(33). If any action ibe commenced Tvithin due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure. Sec. 5616. (4268.) Effect of PajTnent or Acknowledgment— §§ 23(34). In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby. Sec. 5617. (4369.) Effect of Bar.— §§ 24(25). When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense. Chapter 38, Art. 5. Sec. 3541. (2794.) Action against Executors. — § 106. No executor or ad- ministrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within three years from the time of his giving bond. Chaptee 54, Art. 2. Sec. 4069. (3344.) Indian Lands. — § 7. Three years' quiet, undisturbed, erty in Adverse Possession for Fifteen Years, protected. — ^After a mortgagee of real property, or any person claiming under him, has had fifteen years' continued adverse possession, no action shall be brought by the mortgagor, or any one claiming under him, to redeem it. Sec. 2540. If of Personal Property, then Five Years. — The provision of the last section shall apply in cases of a mortgage of personal property, with the diflference that the period vcithin which the action to redeem may be brought shall be five years. < Sec. 2541. Foreign Judgment barred at Home, barred here, except. — When, by the laws of any other State or country, an action upon a judgment or de- cree rendered in such State or country cannot be maintained there by reason of the lapse of time, and such judgment or decree is incapable of being other- wise enforced there, an action upon the same cannot be maintained in this State, except in favor of a resident thereof, who has had the cause of action from the time it accrued. Sec. 3543. Cause of Action barred in State where it originated. — ^When a, cause of action has arisen in another State or country, between residents of such State or country, or between them and residents of another State or country, and by the laws of the State or country where the cause of action, accrued an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this State. Sec. 2543. Trusts and Suits by Vendee in Possession to Obtain a Title. — The provisions of this chapter shall not apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property in the posses- sion thereof, to obtain a conveyance. Sec. 2544. Injunction or other Restraint. — In all cases where the doing of an act necessary to save any right or beneiit is restrained or suspended by injunction or other lawful restraint, vacancy in office, absence of an officer, or his refusal to act, the time covered by the injunction, restraint, vacancy, ab- sence, or refusal to act shall not be estimated in the application of any stat- ute of limitations. Sec. 2545. Dismissal of Action. — ^When an action has been or shall be com- menced in due time, and in good faith, in any court of this Commonwealth, and the defendants, or either of them, have or shall make defense, and it shall be adjudged that such court had or has no jurisdiction of the action, the plain- tiff or his representative may, within three months from the time of such judgment, commence a new action in the proper court, and the time between the commencement of the first and last action shall not be counted in apply- ing the limitation. 1604 Statutes of Limitation. LOUISIANA. meeeick's eevised civil code, 1912, 2d ed. Book III, Title XXIII, Chap. 3. — Of Prescription. Sec. 3. Or the Peescbiption which Opebates a Rei.e:ase from Debt. Art. 3538. (3494.) Liberative Prescription. — The prescription which oper- ates a release from debts, discharges the debtor by the mere silence of the creditor during the time fixed by law, from all actions, real or personal, which might be brought against him. Art. 3529. (3495.) As to Real Rights. — This prescription has also the ef- fect of releasing the owner of an estate from every species of real rights, to which the property may have been subject, if the person in possession of the right has not exercised it during the time required by law. Art. 3530. (3496.) Right of Debtor to Claim.— To enable the debtor to claim the benefit of this prescription, it is not necessary that he should pro- duce any title, or hold in good faith; the neglect of the creditor operates the prescription in this case. Art. 3531. (3497.) Term. — The time necessary to acquire this prescription is longer or shorter, according to the different species of debts or of real rights, of which it produces the discharge or extinction. Art. 3532. Prescription on Foreign Contracts or Judgments. — Whenever any contract or obligation has been entered into, or judgment rendered, be- tween persons who reside out of the State of Louisiana, and to be paid or per- formed out of this State, and such contract, obligation or judgment is barred by prescription or the statute of limitations of the place where the contract or obligation is to be performed or judgment executed, the same shall be con- sidered and held as barred by prescription in Louisiana, upon the debtor who is thus discharged subsequently coming into this State. Art. 3533. (3498.) Special Prescription. — Besides the different prescrip- tions of actions, which are mentioned in other parts of this Code, others exist which are the subject of the following paragraphs: Seo. I. Of the Presceiption op One Year. Art. 3534. (3499.) One Year's Prescription. — The following actions are prescribed by one year: Justices, Notaries and Constables. — That of justices of the peace and no- taries, and persons performing their duties, as well as that of constables, for the fees and emoluments which are due to them in their official capacity. Teachers by the Month. — That of masters and instructors' in the arts and sciences, for lessons which they give by the month. Innkeepers, etc. — That of innkeepers and such others, on account of lodging and board which they furnish. LOTJISIAHA. 1606 Retail Liquor Dealers.— That of retailers of liquors, who sell ardent spirits in less quantities than one quart. Laborers and Servants.— That of workmen, laborers and servants, for the payment of their wages. Ship Freight; Officers and Crew.— That for the payment of the freight of ships and other vessels, the wages of the officers, sailors and others of the crew. Materials and Provisions for Ships.— That for the supply of wood and other things necessary for the construction, equipment and provisioning of ships and other vesssls. Art. 3535. (3500.) Continuous Accounts; Interruption; Voyage. — In the cases mentioned in the preceding article, the prescription takes place, although there may have been a regular continuance of supplies, or of labor or other service. It only ceases from the time when there has been an account acknowledged, a note or bond given, or a suit instituted. However, with respect to the wages of officers, sailors and others of the crew of a ship, this prescription runs only from the day when the voyage is completed. Art. 3536. (3501.) Torts; Claims by and against Vessels; Possessory Ac- tions. — The following actions are also prescribed by one year: — That for injurious words, whether verbal or written, and that for damages caused by animals, or resulting from offenses or quasi-offensea. That which a possessor may institute, to have himself maintained or restored to his possession, when he has been disturbed or evicted. That for the delivery of merchandise or other effects, shipped on board any kind of vessel. That for damage sustained by merchandise on board ships, or which may have happened by ships running foul of each other. Art. 3537. (3502.) Commencement of Prescription. — The prescription men- tioned in the preceding article runs: With respect to the merchandise injured and not delivered, from the day of the arrival of the vessel, or that on which she ought to have arrived. And in other eases from that on which the injurious words, disturbance or damage were sustained. And where land, timber or property has been injured, cut, damaged or de- stroyed, from the date knowledge of such damage is received by the owner thereof. Seo. II. Of the Pbescbiption of Thbee Yeabs. Art. 3538. (3503.) Three Years' Prescription. — The following actions are prescribed by three years: Rent, Annuities, Alimony. — That for arrearages of rent charge, annuities and alimony, or of the hire of movables and immovables. Moiiey Lent. — That for the payment of money lent. Overseers, Clerks, Teachers by the Year or Quarter. — That for the salaries of overseers, clerks, secretaries, and of teachers of the stiences, who give les- sons by the year or quarter. 1600 Statutes or Limitation. Physicians, Apothecaries, etc. — That of physicians, surgeons and apothe- caries, for visits, operations and medicines. Recorders, Clerks, Sheriffs, Attorneys. — That of parish recorders, sheriffs, clerks, and attorneys, for their fees and emoluments. Merchants' Accounts. — That on the accounts of merchants, whether selling for wholesale or retail. Retailers of Provisions or Liquors. — That on the accounts of retailers of provisions, and that of retailers of liquors, who do not sell ardent spirits in less quantities than a quart. Open Accounts. — That on all other open accounts. This prescription only ceases from the time there has been an account acknowledged, in writing, a note or bond given or an action commenced. Art. 3539. (3504.) Against Attorneys for Return of Papers. — The action of parties against their attorneys for the return of papers delivered to them for the interest of their suits, is prescribed also by three years, reckoning from the day when judgment was rendered in the suit, or from the revocation of the powers of the attorneys. iSeo. III. Of the Peescbiption of Five Yeiaes. Art. 3540. (3505.) Bills and Notes. — Action on bills of exchange, notes payable to order or bearer, except bank notes, those on all effects negotiable or transferable by indorsement or delivery, and those on all promissory notes, whether negotiable or otherwise, are prescribed by /lue years' reckoning from the day when the engagements were payable. Art. 3541. (3506.) Minors and Interdicts. — The prescription mentioned in the preceding article, and those described above in paragraphs I. and II., run against minors and interdicted persons, reserving, however, to them their recourse against their tutors or curators. They run also against persons residing out of the State. Art. 3452. (3507.) The following actions are prescribed by f,ve years: Nullity or Rescission. — That for the nullity or rescission of contracts, testa- ments or other acts. Reduction of Donations. — That for the reduction of excessive donations. Rescission of Partitio'ns. — That for the rescission of partitions and guara- tee of the portions. Minors. — ^This prescription only commences against minors after their majority. Art. 3543. Informalities in Public Sales. — ^All informalities connected with or growing out of any public sale, made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons. Sec. IV. Of the Peeso'eiption of Ten Yeaes. Art. 3544. (3508.) Ten Years. — In general, all personal actions, except those before enumerated, are prescribed by ten years. Art. 3545. (3509.) Architect or Builder in Brick or Stone.— The action against an undertaker or architect, for defect of eonstruetion of buildings of brick or stone, is prescribed by ten years. Art. 3546. (3511.) Usufruct, Use, Servitudes.— The rights of usufruct, use and habitation and servitudes are lost by non-use for ten years. Art. 3547. Judgments; Revival of. — ^All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgments: Provided, however, that any party interested in any judgment may have the same revived at any time be- fore it is prescribed by having a citation issued according to law, to the de- fendant or his representative, from the court which rendered the judgment, un- less the defendant or his representative show good cause why the judgment should not be revived, and if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator od hoc the citation shall be served. Amy judgment, revived as above provided, shall continue in full force for ten years from the date of the order of court reviving the same, and any judg- ment may be revived as often as the party interested may desire. Sec. V. Of the Peescbiption of Thibty Years. Art. 3548. (3512.) Actions for Immovables and Entire Estates. — ^AU ac- tions for immovable property, or for an entire estate, as a succession, are pre- scribed by thirty years. Sec. 2810 (of Rev. Laws of 1897). Absentees and Non-residents placed upon the same Footing as Residents. — ^The laws of prescription now existing, whereby absentees and non-residents of the State are entitled to longer periods than persons present or residents in the State, before prescription can be acquired against them, are abolished; and hereafter absentees or non-resi- dents of the State are to stand on the same footing, in relation to the laws of prescription, as persons present or residents of the State: Provided, that this section shall not apply to any prescription of one year or less. {Acts of 1848, p. 60.) MAINE. eevised statutes, 1903. title ix., chap. 83. Limitation of Peesonal Actxcns. Sec. B5. (82.) Actions barred in Six Years.— Firs*. Actions of debt, founded upon a contract or liability not imder seal, except such as are brought upon a judgment or decree of some court of record of the United States, or of a State, or of some municipal or police court, trial justice, or justice of the peace in this State. Second. Actions upon judgments of any court, not a court of record, except municipal and police courts, trial justices, and justices of the peace in thia State. 1608 Statutes of Limitation. Third. Actions for arrears of rent. Fourth. Actions of assumpsit, or upon the case, founded on any contract or liability, express or implied. Fifth. Actions for waste, of trespass on land, and of trespass, except those for assault and battery and false imprisonment. Sixth. Actions of replevin, and other actions for taking, detaining, or in- juring goods or chattels. Seventh. All other actions on the case, except for slanderous words and for libel. Sec. 86. (83.) Actions against Sheriff. — ^Actions for escape of prisoners committed on execution shall be actions on the case, and be commenced within one year after the cause of action accrues; but actions against a sheriflF, for negligence or misconduct of himself or his deputies, shall be commenced within four years after the cause of action accrues. See. 87. (84.) Assault. Libel. False Imprisonment— Actions of assault and battery, and for false imprisonment, slander, and libel, shall be com- menced within two years after the cause of action accrues. Sec. 88. (85.) Scire Facias. — No scire facias shall be served on bail unless within one year after judgment was rendered against the principal; nor on sureties in recognizances in criminal cases unless within one year after the default of the principal; nor against any person adjudged trustee, unless within one year from the expiration of the first execution against the prin- cipal and his goods, effects, and credits in the hands of the trustee. Sec. 89. (86.) Witnessed Notes and Bank-bills. — The foregoing limitations do not apply to actions on promissory notes, signed in the presence of an attesting witness, or on the bills, notes, or other evidences of debt issued by a bank; nor to any case or suit limited to be commenced within a different time. Sec. 90. (87.) Mutual and Open Accounts Current. — ^In actions of debt or assumpsit to recover the balance due, where there have been mutual dealings between the parties, the items of which are unsettled, whether kept or proved by one party or both, the cause of action shall be deemed to accrue at the time of the last item proved in such account. Sec. 93. (90.) General Limitation of Twenty Years. — ^Personal actions on any contract, not otherwise limited, shall be brought within twenty years after the cause of action accrues. Sec. 97. (94.) Suits for Penalties. — Actions and suits for any penalty or forfeiture on a penal statute, brought by a person to whom the penalty or for- feiture is given in whole or in part, shall be commenced within one year after the commission of the offense; and if no person so prosecutes, it may be re- covered by suit, indictment, or information, in the name and for the use of the State, at any time within two years after the commission of the offense, and not afterwards. Sec. 99. (96.) Limitation in Cases of Fraud. — If a person liable to any action mentioned herein, fraudulently conceals the cause thereof from the per- son entitled thereto, or if a fraud is committed which entitles any person to Maine. 1609 an action, the action may be commenced at any time within six years after the person entitled thereto shall discover that he has just cause of action. Sec. 104. (101.) Presumption of Payment. — Every judgment and decree of any court of record of the United States, or any State, or of a trial justice or justice of the peace in this State, shall be presumed to be paid and satis- fled at the end of twenty years after any duty or obligation accrued by virtue of such judgment or decree. Sec. 105. (102.) Set-offs. — All the provisions hereof respecting limitations shall apply to any debt or contract filed in set-off by the defendant; and the time of such limitation of such debt or contract shall ibe computed, as if an action had been commenced therefor at the time when the plaintiff's action was commenced, unless the defendant is deprived of the benefit of the set-off by the nonsuit or other act of the plaintiff ; and when he is thus defeated of a judgment on the merits of such debt or contract, he may commence an action thereon within six months after the final determination of the suit aforesaid. Sec. 106. (103.) Absence of Defendant from the State. — If a person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State; and if a person is absent from and resides out of the State after a cause of action has accrued against him, th^ time of his absence shall not be taken as a part of the time limited for the commencement of the action; or, if a per- son is adjudged an insolvent debtor after a cause of action has accrued a,gainst him, and such cause of action is one provable in insolvency, the time of the pending of his insolvency proceedings shall not be taken as a part of the time limited for the commencement of the action. But no action shall be brought by any person whose cause of action has been barred by the laws of any State, Territory, or country while all the parties have resided therein. {As amended hy Acta of 1885, chap. 376; Acts of 1887, chap. 118.) Ohap. 107. Limitation of Real Actions, and Eights of Entby. Sec. 1. Rights of Entry and Action barred in Twenty Years. — No person shall commence any real or mixed action for the recovery of lands, or maike an entry thereon, unless within twenty years after the right to do so first accrued; or unless within twenty years after he, or those under whom he claims, were seized or possessed of the premises; except as hereinafter pro- vided. Sec. 2. From what Time Right begins to run. — ^If such right or title first accrued to an ancestor, predecessor, or other person under whom the demand- ant claims, said twenty years shall be computed from the time when the right or title first accrued to such ancestor, predecessor, or other person. See. 3. When such Right Shall be deemed to accrue. Sec. 4. Entry for Colidition broken. — The preceding clause shall not pre- vent any person from entering when so entitled by reason of any forfeiture or breach of condition; but if he claims under such a title, his right accrues when the forfeiture was incurred or the condition broken. 1610 Statutes op Limitatioit. Sec. 5. Cases not specially provided for. — In all cases not otherwise pro- vided for, the right of entry accrues when the claimant, or the person under whom he claims, first became entitled to the possession of the premises under the title on which the entry or action is founded^ Sec. 10. What constitutes a Disseisin. — To constitute a disseisin, or such exclusive and adverse possession of lands as to bar or limit the right of the true owner thereof to recover them, such lands need not be surrounded with fences or rendered inaccessible by water; but it shall be suiSoient, if the possession, occupation, and improvement are open, notorious, and comporting with the ordinary management of a farm; although that part of the same, which composes the woodland belonging to such farm and used therewith as a, wood lot, is not so enclosed. [See. 11, limiting to twenty years Real or Mixed Actions by the State was repealed by Chap. 368 of the Acts of 1885.] Sees. 12, 13, 14. (13, 14.) Right of Way, oT other Easement, acquired by Adverse Use, twenty years. Real Actions. Sec. 16. (15.) Actions for the Recovery of Land barred in Forty Years. — iNb real of mixed action, for the recovery of any lands, shall be commenced or maintained against any person in possession thereof, when such person or those under whom he claims have been in actual possession for more than forty years, claiming to hold them by adverse, open, peaceable, notorious, and ex- clusive possession, in their own right. [Chap. 229 of the Acts of 1897, adds to this chapter: Sees. 13 (16), by which a right of way or other easement is not extinguished by adverse ob- struction unless continued for twenty years and notice given. And Sees. 14 (17) provides how such notice is to be given.] MAEYLAND. ANNOTATED CIVIL CODE, 1911 (bAGBt). Aet. 57. LiMiTATicwsr of Actions. Sec. 1. Within what Times Actions must be commenced. — All actions of account, actions of assumpsit, or on the case, actions of debt on simple con- tract, detinue, or replevin, all actions for trespass, for injuries to real per- sonal property, all actions for illegal arrest, false imprisonment, or violation of the twenty-third, twenty-sixth, thirty-first, and thirty-second articles of the Declaration of Rights, or any of them, or of any provisions of the code touch- ing the writ of habeas corpus, or proceedings thereunder, and all actions, whether of debt, ejectment, or of any other description whatsoever, brought to recover rent in arrear, reserved under any form of lease, whether for ninety- nine years, renewable forever, or for a greater or lesser period, and all dis- traints issued to recover such rent, shall be commenced, sued, or issued within Maetlaitd. 1611 three years from the time the cause of action accrued; and all actions on the case for words, and all actions for assault, battery, and wounding, or any of them, within one year from the time the cause of action accrued. This section not to apply to such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants, who are not residents within this State. Sec. 3. Within what Time after Disabilities removed. — If any person en- titled to any of the actions mentioned in the preceding section shall be at the time such cause of action accrues within the age of one and twenty years, or non compos, he or she shall be at liberty to bring the said action within the respective times so limited, after the disability is removed, as other persons having no such disability might or should have done. {As amended by Laws of 1890, chap. 548, and of 1894, chap. 661.) Sec. 3. Actions on Sealed Instrument or Specialty. — No bill, testamentary, administration, or other bond (except sheriff's and constables' bonds), judg- ment, recognizance, statute merchant, or of the staple, or other specialty what- soever, except such as shall be taken for the use of the State, shall be good and pleadable, or admitted in evidence against any person in this State after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action is above twelve years' standing, provided, however, that every payment of interest upon any single bill or other specialty shall suspend the operation of this section as to such bill or specialty for three years after the date of such payment;" saving to all persons who shall be under the aforemen- tioned impediments of infancy, or insanity of mind, the full benefit of all such bills, bonds, judgments, recognizances, statute merchant, or of the staple or other specialties, for the period of six years after the removal of such dis- ability. {As amended iy Loaos of 1890, chap. 548, and of 1894, chap. 661.) Sec. 4. Persons absenting or Abscoiiding. — ^No person absenting himself from this State, or who shall remove from county to county after any debt contracted, whereby the creditor may be at an uncertainty of finding out such person or his efl'eots, shall have any benefit of any limitation herein contained; but nothing contained in this section shall debar any person from removing himself or family from one county to another for his convenience, or shall de- prive any person leaving this State for the time herein limited, of the benefit thereof, he leaving effects sufficient and known for the payment of his just debts in the hands of some person who will assume the payment thereof to his creditors. Sec. 5. Person al^sent when Cause arises. — ^If any person liable to any ac- tion shall be absent out of the State at the time when the cause of action may arise or accrue against Mm, he shall have no benefit of the limitation herein contained, if the person who has the cause of action shall commence the same after the presence in this State of the person liable thereto within the terms herein limited. Sec. 6. Actions on Sheriffs', Coroners', and Constables' Bonds. — ^AU actions on sheriflTs', coroners' and constables' bonds shall be brought within five yea/rs after the date of such bonds, and not afterwards; but the State may sue on 1612 Statutes ov LiMiTAxioif. said bonds for her own use, at any time; and if any person entitled to suit on a sherifT's, coroner's, or constable's bond, shall be at the time of the accru- ing of any cause of action on such bond under the age of twenty-one years, or non compos mentis, he shall be at liberty to bring his or her action within five years after the removal of such disability. (As amended iy Laws of 1894, chap. 661.) Sec. 7. (6A.) , The period within which any suit or action may be brought tinder any statute of limitations in force in this State, shall not be extended because the plaintiff, in such suit or action was, is or shall be a feme covert, imprisoned, or beyond the seas, or out of the jurisdiction of this State at the time of the accrual of the right, title or cause of action. (Added by the Laws of 1894, chap. 661.) Sec. 14. (13.) When Right to bring Suit Accrues. — ^In all actions to be hereafter brought, when a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring suit shall be deemed to have first accrued at the time at which such fraud shall, or with usual and ordinary diligence might, have been known or discovered. MASSACHUSETTS. PtTBLIC STATUTES 1902, PAET III^ TITLE V., CHAP. 202. Of the Limitation of AcynoNS. Chap. 202.— Limitation of Personal Actions. Sec. 1. (6, 7.) The following actions shall be commenced only within twenty years next after the cause of action accrues: First. Actions upon contracts under seal. Second. Actions upon bills, notes or other evidences of indebtedness issued by a bank. Third. Actions upon promissory notes which have been signed in the pres- ence of an attesting witness, if brought by the original payee, or by his execu- tor or administrator. Fourth. Actions upon contracts which are not limited by the provisions of the following section or by any other provision of law: Sec. 2. (1.) The following actions shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues: First. Actions of contract founded upon contracts or liabilities, express or implied, except actions limited by the provisions of the preceding section or actions upon judgments or decrees of courts of record of the United States or of this or some other of the United States. Second. Actions of tort. Third. Actions of replevin. Sec. 3. (2.) Actions against sheriffs for the misconduct or negligence of their deputies shall be commenced only within four years next after the cause of action accrues. Massachusetts. 1613 Sec. 4. (3.) Actions for assault and battery, for false imprisonment, for slander or libel, and actions against executors, administrators, guardians, trustees, sheriflFs, deputy-sherififs, constables, or assignees in insolvency, for the taking or conversion of personal property, shall be commenced only within two years next after the cause of action accrues. Sec. 5. (4.) (5.) Actions for penalties or forfeitures under penab statutes, if brought by a person to whom the penalty or forfeiture is given in whole or in part, shall be commenced only within one year next after the offense is com- mitted. But if the penalty or forfeiture is given in whole or in part to the Com- monwealth, an action therefor by or in behalf of the Commonwealth may be commenced at any time woithin tioo years after the offense is committed. See. 6. (8.) In an action of contract brought to recover the balance due upon a mutual and open account current, the cause of action shall be held to have accrued at the time of the last item proved in the account. See. 11. (14.) If a person who is liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person who is entitled to bring it, the period prior to the discovery of his cause of action by the person who is so entitled shall be excluded in determining the time limited for the commencement of the action. Sec. 17. (21.) The limitation of the preceding sections of this chapter, and of section 31 so far as it applies to personal actions, shall apply to ac- tions brought by the Commonwealth or for its benefit. Sec. 18. (22.) If a special provision is otherwise made relative to the limitation of any action, the provisions of this chapter which are inconsist- ent therewith shall not apply. Sec. 19. (23.) A judgment or decree of a court of record of the United States, or of this or any other State of the United States, shall be presumed to be paid and satisfied at the expiration of twenty years after it was ren- dered. Limitation of Real Actions and Bight of Entry. Sec. 20. (1.) An action for the recovery of land shall be commenced, or an entry made thereon, only within twenty years after the right of action or of entry first accrued, or within twenty years after the demandant or person who makes the entry or those under whom they claim, have been seised or possessed of the premises, except as hereinafter provided. Sec. 21. (2.) If such right or title first accrued to an ancestor or pre- decessor of the person who brings the action or makes the entry, or to any other person under whom he claims, the twenty years shall be computed from the time when the right or title so first accrued. Sec. 22. (3.) In the construction of sections twenty to thirty, inclusive, the right of entry or action to recover land shall be held to have first ac- crued at the times, respectively, hereinafter mentioned: First. If a person has been disseised. Second. If he claims as heir or devisee of a. person who at his death was seized, at the time of such death; but if a tenancy by the curtesy or other 1614 Statutes oi' Limitation. estate intervened after the death of such ancestor or devisor, at the time when such intermediate estate expired, or would have expired by its own limitation. Third. If there has been such intermediate estate, or if a person claims under a remainder or reversion, so far as his right is affected by the limita- tion herein prescribed, at the time when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time. The provisions of this clause shall not prevent a person from entering if entitled to do so by reason of any forfeiture or breach of condition; but in such case, his right shall be held to have accrued when the forfeiture was in- curred or the condition was broken. Fourth. In all cases in which no other express provision is made, at the time when the claimant or the person under whom he claims first became en- titled to the possession of the premises under the title upon which the entry or the action is founded. Sec. 27. (8.) No person shall be held to have been in possession of landa within the meaning of this chapter merely by reason of having made an entry thereon, unless he has continued in open and peaceable possession thereof for one year next after such entry or unless an action is commenced upon such entry and seisin within one year after he is ousted or dispossessed. suppi/emental acts. Ohap. 106, Sec. 75. Sec. 75. (3.) Action for Personal Injuries to' an Employee. — * * * No action for the recovery of damages for injury or death under the provisions of sections seventy-one to seventy-four inclusive, shall be maintained, unless notice of the time, place, and cause of the injury is given to the employer within sixty days, and the action is commenced within one year after the ac- cident which causes the death or injury, etc. Chap. 51, Sec." 20. Sec. 20. (1.) Action for Injury from defective Highway, Two Years. Chap. Ill, Sec. 267 (Act of 1887, Chap. 140), limits to one year an action against a, railroad or street railway company for loss of life by negligence. Chap. 182, Sec. 11. By Acts of 1889, Chap. 442, The Validity of incum- brances upon titles of real estate, imposed more than thirty years before the proceeding, may be determined on petition to the supreme court, and the decree thereupon made will exclude the respondent's claim. MiCHIGAK. 1615 MICHIGA]^. Howell's annotated statutes, 1913, title xxxiv, chap. 383. LiMiTATioisr OF Actions Relating to Real Propeett. § 14119. (9714.) Sec. 1. Actions for the Recovery of Land, when to be brought. — ^After the thirty-first day of December, in the year of our Lord eighteen hundred and sixty-three, no person shall bring or maintain any ac- tion for the recovery of any lands, or the possession thereof, or make any entry thereupon, unless such action is commenced, or entry made, within the time herein limited therefor, after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims, to wit : First. Within five years, where the defendant claims title to the land in question by or through some deed made upon a sale thereof by an executor, administrator, or guardian, or by a sheriff or other proper ministerial officer, under the order, judgment, decree, or process of a court or legal tribunal of competent jurisdiction within this State; or by a sheriff upon a mortgage fore- closure sale; or through a devise in any will which shall have been probated in this State for fifteen years, during which period no suit in chancery has been brought to test the validity of such devise: Provided, that in cases where such fifteen-year period has already elapsed such rights of entry or action shall be barred after two years from the passage hereof, or in case such right has not accrued, then after two years from the accruing thereof. Second. Within ten years, where the defendant claims title under a deed made by some officer of this State, or of the United States, authorized to make deeds upon the sale of lands for taxes assessed and levied within this State. Third. Within -fifteen yea/rs in all other oases. § 14130. (9715.) Sec. 2. Co'mputation of Time when Right accrued to Ancestor, etc. — If such right or title first accrued to an ancestor, predecessor, or grantor of the person who brings the action or makes the entry, or to any other person from or under whom he claims, the said above periods of limita- tion shall be computed from the time when the right or title so first accrued to such ancestor, predecessor, grantor, or other person. § 14121. (9716.) Sec. 3. When right deemed to have accrued. § 14122. (9717.) Sec. 4. Who presumed to have Possession. — In every action for the recovery of real estate, or the possession thereof, the person establishing the legal title to the premises shall be presumed to have been possessed thereof, within the time limited by law for bringing such action, unless it shall appear that the same have been possessed adversely to such legal title by the defendant, or by those from or under whom he claims. § 14126. (9731.) Sec. B. Entry ofl Land, when effectual. — ^No person shall be deemed to have been in possession of any lands, within the meaning of this chapter, merely by reason of having made an entry thereon, unless he shall 1616 Statutes op Limitation. have continued in open and peaceable possession of the premises for at least one year next after such entry, or unless an action shall be commenced upon such entry and seizin within one year after he shall be Ousted or dispossessed of the premises. § 14129. (9724.) Sec. 11. Suits by the People of this State.— No suit for the recovery of any lands shall be commenced by or in behalf of the peo- ple of this State, unless within twenty years after the right or title of the people of the State therein first accrued, or within twenty years after the said people, or those from or through whom they claim, shall have been seised or possessed of the premises, or shall have received the rents and profits of the same, or some part thereof. Chap. 384. LiMirATioN OF JPeesonal Actions. § 14135. (9728.) Sec. 1. Certain Actions to be brought within Six Years. — First. All actions of debt, founded upon any contract, or liability not un- der seal, except such as are brought upon the judgment or decree of some court of record of the United States, or of this or some other of the United States. Second. All actions upon judgments rendered in any court, other than those above excepted. Third. All actions for arrears of rent. Fourth. All actions of assumpsit, or upon the case, founded upon any con- tract or liability, express or implied. Fifth. All actions for waste. Sixth. All actions of replevin and trover, and all other actions for taking, detaining, or injuring goods or chattels. Seventh. All other actions on the case, except actions for slanderous words or for libels. § 1413'6. (9729.) Sec. 3. Certain Actions to be brought within Two Years. — All actions for trespass upon land, or for assault and battery, or for false imprisonment, and all actions for slanderous words, and all actions against physicians, surgeons and dentists for malpractice. And all actions, for libels shall be commenced within one year. §14137. (9730.) Sec. 3. Actions against Sheriffs, etc. — All actions against sheriffs, for the misconduct or neglect of their deputies, shall be commenced within four years. § 14138. (9731.) Sec. 4. Exceptions. — None of the provisions of this chap- ter shall apply to any action brought upon any bills, notes, or other evidences of debt issued by any bank. § 14139. (9732.) Sec. 5. Cases of Accounts Current. — In all actions of debt or assumpsit brought to recover the balance due upon a mutual and open account current, the cause of action shall be deemed to have accrued at the time of the last item proved in such account. § 1414i; (9734.) Sec. 7. General Limitation. — All personal actions on any contract, not limited by the foregoing sections or by any law of this State, within ten years. Michigan. 1617 § 14146. (9739.) Sec. 12. Fraudulent Concealment by Defendant.— If any person who is liable to any of the actions mentioned in this chapter shall fraudulently conceal the cause of such action from the knowledge of the per- son entitled thereto, the action may be commenced at any time within two years after the person who is entitled to bring the same shall discover that he has such cause of action, although such action would be otherwise barred by the provisions of this chapter. § 14153. (9746.) Sec. 19. Limltatioii of Demands alleged as Set-offs.— All the provisions of this chapter shall apply to the case of any debt or contract alleged by way of set-off on the part of a defendant; and the time of the limitation of such debt shall be computed in like manner as if an action had been commenced therefor at the time when the plaintiff's action was com- menced, provided such debt or contract would have been barred according to law before the accruing of the claim or demand upon which such defendant is sued. § 14154. (9747.) See. 20. * Limitation of Suits by the People, etc.— The limitations heretofore prescribed for the commencement of actions shall apply to the same actions when brought in the name of the people of this State, or in the name of any officer or otherwise, for the benefit of the State, in the same manner as to actions brought by individuals. § 14155. (9748.) Sec. 21. Limitation of Suits for Penalties.— All actions and suits for any penalty or forfeiture on any penal statute, brought in the name of the people of this State, within two years. § 14156. (9749.) See. 22. Of Suits limited by other Statutes.— The preced- ing section shall not apply to any suit which is or shall be limited by any statute, to be brought within a shorter or longer time than is prescribed in said section; but such suit shall be brought within the time that may be limited by such statute. § 14158. (9751.) Sec. 24. When action upon Judgment shall be brought.— Every action upon a judgment or decree heretofore rendered, or hereafter to be rendered, in a, court of record of the United States, or of this State, or of any other State of the United States, shall be brought within ten years after the entry of the judgment or decree, and not afterwards: Provided, that in all cases of judgments, or decrees entered nine years or more before this act shall take effect, one year from the time when this act shall take effect shall be allowed for the commencement of an action or proceeding upon each judg- ment or decree, to revive the same: Provided, further, that no judgment or decree shall be revived, an action to recover or enforce which is now legally barred. § 14159. (9752.) Sec. 25. Actions barred and Rights accrued under Former Statutes. — No personal action shall be maintained, which, at the time when this chapter shall take effect as law, shall have been barred by the statute of limitation in force at the time when the cause of action accrued; and when any right of action shall have accrued before the time when this chapter shall take effect, it shall not be affected by this chapter, but all such causes of ac- tion shall be governed and determined according to the law under which the right of action accrued, in respect to the limitation of such actions. 102 1618 Statutes of Limitation. § 14160. (9754.) Time Suit pending in Chancery not to be computed under LimitatiCn Laws. — The time during which any case in chancery, commenced by any debtor, has or may be pending and undetermined, shall not be com- puted as constituting any part of the period limited or prescribed by any statute of limitation in force at the time of the commencement of such case in chancery, prescribing the time within which an action in relation to the debtor or subject-matter in dispute, as set forth in the proceedings in such case in chancery, should or might be commenced. § 14163. Actions to recover damages for personal injuries, three years. MIISTWESOTA. GEWEEAL STATUTES, PAET 3, CHAP. 77, TITLE II. Tiffany's- .Compilation, 1913. Sec. 7694. (5133.) Limitations of Actions. — Actions can only be com- menced within the periods prescribed in this chapter, after the cause of action accrues, except where in special cases a diflferent limitation is prescribed by statute. Sec. 7696. (5134.) Actions to recover Real Property. — ^No action for the recovery of real estate, or the possession thereof, shall be maintained, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or PQSsessed of the premises in qiiestion within fifteen years before the beginning of the action: Provided, however, such limitation shall not be a bar to an action for the recovery of real estate a.ssessed as tracts Or parcels separate from other real estate, unless it appears that the party claiming title by ad- verse possession or his ancestor, predecessor, or grantor, or all of them to- gether, shall have paid taxes on the real estate in question at least five (5) consecutive years of the time during which he claims said lands to have been occupied adversely. Providing, further, that the provisions of the foregoing proviso shall not apply to actions relating to the boundary line of lands, which boundary lines are established by adverse possession, or to actions concerning lands included between the government or plotted line and the line established by such ad- verse possession, or to lands not assessed for taxes. [B. L., § 4073, amended 1913 c. 239, § 1.) Sec. 7700. (5135.) Actions upon Judgments or Decrees. — ^Within ten years: An action upon a judgment or decree of a court of the United States, or of any State or Territory of the United States. Sec. 7701. (5136.) Actions upon Contracts, etc., within Six Years. — ^Within six years: 1. An action upon a contract or other obligation, express or implied, as to which no other limitation is expressly prescribed. 2. An action upon a liability created by statute, other than those arising upon a penalty or forfeiture. MINNESOTA. 1619: 3. An action for a trespass upon real estate. 4. An action for taking, detaining, or injuring personal property, including actions for the specific recovery tliereof. 5. An action for criminal conversation or for any other injury to the per- son or rights of another, not arising on contract, and not hereinafter enum- erated. 6. An action for relief, on the ground of fraud; in which case the cause of action shall not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. 7. Actions to enforce a trust or compel a trustee to account, where he has neglected to discharge his trust, or claim's to have fully performed it, or has repudiated the trust relation. Sec. 7703. (5137.) Actions against Certain Officers, or for a Penalty. — Within th/ree years: 1. An action against a sheriff, coroner, or constable, for any act done in his official capacity, and in virtue of his office, or for any omission of an official duty, including the non-payment of money collected or received upon a judg- ment or execution. 2. An action upon a statute for a penalty or forfeiture to the party ag- grieved. Sec. 7703. (513S.) Action for Libel, etc., within Two Years.— Within two years : 1. An action for libel, slander, assault, battery, false imprisonment or other tort resulting in personal injury. 2. An action upon a statute for a forfeiture or penalty to the State. 3. For damages caused by a mill dam; but, as against one holding under the pre-emption or homestead laws, such limitation shall not begin to run until a, patent has been issued for the land so damaged. 4. Against a master for a breach of an indenture of apprenticeship; the limitation, in such case, to run from the expiration of the term of service. Sec. 7705. (5139.) Action upon Mutual and Current Account accrues, when. — If the action be to recover a balance due upon a mutual, open, and current account, and there have been reciprocal demands between the parties, the limitation shall begin to run from the date of the last item proved on either side. Sec. 7698. (5141.) Action to' foreclose Mortgage. — No action or proceed- ing to foreclose a real estate mortgage, whether by action or advertisement, or otherwise, shall be maintained unless commenced within fifteen years from the maturity of the whole of the debt secured by said mortgage, and this limi- tation shall not be extended by the nonresidence of any plaintiff or defendant or of any party interested in the land upon which said mortgage is a lien in any action commenced to foreclose such mortgage, nor by reason of any pay- ment made after such maturity, nor by reason of any extension of the time of payment of said mortgage or the debt or obligation thereby secured or any portion thereof, unless such extension shall be in writing and shall have been recorded in the same office in which the original mortgage is recorded, within 1620 Statutes of Limitation. the limitation period herein provided, or prior to the expiration of any pre- viously recorded extension of such mortgage or debt, nor by reason of any disability of any party interested in said mortgage. MISSISSIPPI. eevisbd code, 1906. chap. 87. Limitation op Actions. See. 3090. (3730.) (2664.) Actions concerning Land. — ^A person may not make an entry, or commence an action to recover land, but within ten years next after the time at which the right to make the entry or to bring the ac- tion shall have first accrued to some person through whom he claims; or if the right shall not have accrued to any person through whom he claims, then within ten years next after the time at which the right to make the entry or to bring the action have first accrued to the person making or bringing the same. But if, at the time at which the right of any person to make an entry, or to bring an action to recover land, shall have first accrued, such person shall have been under the disability of infancy, or unsoundness of mind, then such person or the person claiming through him, may, notwithstanding the period of ten years hereinbefore limited shall have expired, make an entry, or bring an action to recover the land, at any time within ten years next after the time at which the person to whom' the right shall have first accrued shall have ceased to be under either disability, or shall have died, whichever shall have first happened; but when any person, who shall be under either of the disabilities mentioned, at the time at which his right shall have first accrued, shall depart this life, without having ceased to be under such disability, no time to make an entry, or to bring an action to recover the land, beyond the period of ten years next after the time at which such person shall have died, shall be allowed, by reason of the disability of any other person. Sec. 3091. (2731.) (3665.) Same Limitation as to Suits in Equity.— A person claiming land in equity may not bring suit to recover the ■ same, but within- the period during which, by virtue of the provisions hereinbefore con- tained, he might have made an entry, or brought an action to recover the same, if he had been entitled at law to such estate, interest, or right in or to the same, as he shall claim therein in equity; but in every case of a concealed fraud, the right of any person to bring suit in equity for the recovery of land, of which he or any person through whom he claims may have been deprived by such fraud, shall be deemed to have first accrued at and not before the time at which the fraud shall, or, with reasonable diligence might, have been first known or discovered. Sec. 3094. (3734.) (3668.) Ten Years' Adverse Possession gives Title.— Ten years' actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten years by occu- pancy, descent, conveyance, or otherwise, in whatever way such occupancy may Mississippi. 1621 have been commenced or continued, shall vest in every actual occupant or pos- sessor of such land a full and complete title, saving to persons under the dis- ability of minority or unsoundness of mind the right to sue within ten years after the removal of such disability, as provided in the first section of this chapter, but the saving in favor of persons under disability of unsoundnesa of mind shall never extend longer than thirty-one years. Sec. 3095. (2735.) (539.) Three Years' Actual Possession under a Tax- title Bars Suit. Sec. 3096. (3736.) Suits against the State or Municipalities.— Statutes of limitation in civil cases shall not run against the State, or any subdivision or municipal corporation thereof; but all such statutes shall run in favor of the State, the counties, and the municipal corporations therein; and the stat- utes of limitation shall begin to run in favor of the State, the counties, and municipal corporations at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon. Sec. 3097. (2737.) (2669.) Actions to' be brought in Six Years.— All ac- tions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after. Sec. 3099. (2739.) (2670.) Actions to be brought in Three Years.— Ac- tions on an open account or stated account, not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied. Sec. 3100. (2740.) (2671.) When Statute commences to run on Open Ac- counts. — In all actions brought to recover the balance due upon a mutual and open current account, where both parties are merchants or traders, the cause of action shall be deemed to have accrued at the time of the true date of the last item proved in such account; and in all other actions upon open accounts', the period of limitations shall commence to run against the several items thereof, from the dates at whiph the same respectively became due and payable. Sec. 3101. (2741.) (2672.) Action for Penalty commenced in One Year. — All actions and suits for any penalty Or forfeiture on any penal statute, brought by any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the offense com- mitted, and not after. Sec. 3102. (3742.) (2673.) Other Actions commenced in One Year.— All actions for assault, battery, maiming, false imprisonment, malicious arrest or menace, and all actions for slanderous words concerning the person or title, and for libels, shall be commenced within one year. (See See. 3107 [2747], enacted in 1888.) Sec. 3103. (2743.) (2674.) Actions on Domestic Judgments. — All actions founded on any judgment or decree rendered by any court of record in this State, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree. Sec. 3104. (2744.) (2675.) Actions on Foreign Judgments. — All actions founded on any judgment or decree, rendered by any court of record without 1622 Statutes or Limitation. this State, shall be brought within seven yewrs after the rendition of such judgment or decree, and not after. But if the person against whom such judg- ment or decree was or shall be rendered, was or shall be at the time of the institution of the action a resident of this State, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after. Sec. 3107. (2747.) Saving in Favoir of Convicts. — If any person entitled to bring an action for assault, assault and battery, or maiming, shall at the time the cause of such action accrued, have been in custody as a convict, such person may bring such action within one year after his release. Sec. 3109. (2749. (2679.) Concealed Fraud.— If any person liable to any personal action shall fraudulently conceal the cause of action from the knowl- edge of the person entitled thereto, the cause of such action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered. (See Sec. 2731.) Sec. 3117. (3756a.) (2687.) Limitation of Seft-off.— All the provisions of this chapter shall apply to the case of any debt or demand on contract, alleged hj way of set-off on the part of a defendant; and the time of limitation of such debt or demand shall be computed in like manner as if an action had been commenced therefor at the time when the plaintifi"s action was com- menced; and the fact that a set-off is barred shall not preclude the defendant from using it as such if he held it against the debt sued on before it was barred. Sec. 3120. (2758a.) (2691.) Statute not to run when Person prohibited to Sue. — ^When any person shall be prohibited by law, or restrained or en- joined by the order, decree, or process of any court in this State, from com- mencing or prosecuting any action or remedy, the time during which such person shall be so prohibited, enjoined, or restrained shall not be computed as any part of the period of time limited by this chapter for the commence- ment of such action. Sec. 3121. (2759.) (2692.) When the Limitation to commence. — The sev- eral periods of limitation prescribed by this chapter shall commence from the date when it shall take effect; but the same shall not apply to any actions commenced, nor to any cases where the right of action or of entry shall have accrued, before that time, but the same shall be subject to the laws now in force; but this law may be pleaded in any case where a bar has accrued under the provisions thereof. Sec. 3123. (3761.) (3694.) Trustee barred, Beneficiaries barred. — Wlienthe legal title to property or a right in action is in an executor, administrator, guardian, or other trustee, the time during which any statute of limitations runs against such trustee shall be computed against the person beneficially in- terested in such property or right in action, although such person may be under disability, and within the saving of any statute of limitations; and may be availed of in any suit or action by such person. Sec. 3124. (2762.) (3695.) Suits in Equity.— Whenever there be a con- Missoimi. 1623 ■current jurisdiction in the courts of common law and in the courts of equity of any cause of action, the provisions of this chapter, limiting a time for the commencement of a suit for such cause of action in a court of common law, shall apply to all suits to be brought for the same cause in a court of chanc- ery. (See Sec. 3091 [2731.]) Sec. 3135. (2763.) (2696.) Limitation of Express Trusts.— Bills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after; saving, however, to all persons under disability of infancy, or unsoundness of mind, the like period of time after such disability shall be removed; but the saving in favor of per- sons under disability of unsoundness of mind shall never extend longer than thirty-one years. MISSOUEI. Limitations of Actions. Aet. VIII. — Limitations — Real Actions. Sec. 1879. (4262.) Actions for Recovery of Lands to te commenced, when. — iNo action for the recovery of any lands, tenements, or hereditaments, or for the recovery of the possession thereof, shall be commenced, had, or main- tained by any person, whether citizen, denizen, alien-, resident, or non-resident of this State, unless it apjear that the plaintiff, his ancestor, predecessor, grantor, or other person under whom he claims was seized or possessed o£ the premises in question, within ten years before the commencement of such action. Sec. 1882. (4266.) Possession of Part, when Possession of the Whole Tract. — The possession, under color of title, of a, part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, phall be deemed a possession of the whole of such tract. See. 1884. (4286.) Limitation in Case of Certain Equitable Titles. — ^When ■ever any real estate, the equitable title to which shall have emanated from the government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by an- other, and which shall not at such date have been in possession of the said person claiming or who might claim the same, or of any one under whom he claims or might claim, for thirty consecutive years, and on which neither the said person claiming or who might claim the same, nor those under whom he ■claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such pos- sessor: Provided, however, that in all cases such action may be brought at any time within one year from the date at which this article takes effect and goes into force. (Sec. 2095 prescribes the procedure.) 1624 Statutes op Limitation. ^See. 1885. (4269.) When Legal Title has not emanated from the United States. — In all cases in which the legal title has not yet emanated from the government of the United States, but in which there has been an equitable right or title for more than twenty years, under which a claimant has had a right of action by the statutes of this State, and in which the laud has been in the possession of any person for twenty years, claiming the same in fee, any person claiming against the possessor shall bring his action under the legal title within one year after it issues from the government; and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor. Sec. 1886. (4270.) Statutes not to extend to Certain Lands. — ^Nothing con- tained in any statute of limitation shall extend to any lands given, granted, sequestered, or appropriated to any public, pious, or charitable use, or to any lands belonging to this State. Abt. IX. — Personal Actions and General Provisions. Sec. 1887. (4271.) Period of Limitation prescribed. — Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of actions shall have accrued. Sec. 1888. (4272.) What Action shall be commenced within Ten Years. — Within ten years: First. An action upon any writing, whether sealed or unsealed, for the pay- ment of money or property. Second. Actions brought on any covenant of warranty contained in any deed of conveyance of land shall be brought within ten years next after there shall have been a final decision against the title of the covenantor in such deed, and actions on any covenant of seizin contained in any such deed shall be brought within ten years after the cause of such action shall accrue. Third. Actions for relief, not herein otherwise provided for. Sec. 1889. (4273.) What within Five Years. — ^Within five years: — First. All actions upon contracts, obligations, or liabilities, express or im- plied, except those mentioned in section one thousand eight hundred and eighty-eight, and except upon judgments or decrees of a court of record, and except where a different time is herein limited. Second. An action upon a liability created by a statute other than for a penalty or forfeiture. Third. An action for trespass on real estate. ■ Fourth. An action for taking, detaining, or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract, and not herein otherwise enumerated. Fifth. An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the ag- grieved party, at any time within ten years, of the facts constituting the fraud. Missouni. 1625 Sec. 1890. (4274.) What within Three Years.— Within three years: — First. An action against a, sheriff, coroner, or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the non-payment of money collected upon an execution or otherwise. Second. An action upon a statute for a penalty or forfeiture, where the ac- tion is given to the party aggrieved, or to such party and the State. Sec. 1891. (4275.) What within Two Years. — Within two years: An ac- tion for libel, slander, assault, battery, false imprisonment, or criminal con- versation. Sec. 1892. (4276.) No' Action to Foreclose Mortgage after Note Barred. — No suit, action or proceeding under a power of sale to foreclose any mortgage or deed of trust, executed hereafter to secure any obligation to pay money or property, shall be had or maintained after such obligation has been barred by the statutes of limitations of this State. (Laws 1891, p. 184.) Sec. 1893. (4278.) In Account Current, when Cause of Action Accrued. — In an action brought to recover a balance due on a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item in the account on the adverse side. Sec. 1895. (4280.) Limitation on Actions Originating in other States. — Whenever a cause of action has been fully barred by the laws of the State, Territory or country in which it originated, said bar shall be a complete de- fense to any action thereon, brought in any of the courts of this State. (Ad- ded by Act of May 24, 1899.) Sec. 1912. (4297.) Judgments presumed to be paid, when — Presumption, how repelled. — Every judgment, order or decree of any court of record of the United States, or of this or any other State, Territory, or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten yea^-s from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judg- ment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever. Sec. 1914. (4299.) To apply to the State as well as to Private Parties.. — The limitations prescribed in this chapter shall apply to actions brought in the name of this State, or for its benefit, in the same manner as to actions by private parties. Sec. 1915. (4300.) Set-off, etc. — ^When a defendant in action has inter- posed an answer, as a defense, set-off, or counterclaim, upon which he would be entitled to rely in such action, the remedy upon which, at the time of the 1626 Statutes of Limitation. \ commencement of such action, was not barred by law, and such complaint is dismissed, or the action ia discontinued, the time which intervened between the commencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action by the defendant to recover for the cause of action so interposed as a defense, set-off, Or counter- claim. MONTANA. CODE OF CIVIL PEOCEDUEE (1907). Title II, Chap. 1. — The Time of Commewoing Actions in General. Sec. 6828. (470.) Commencement of Civil Actions. — Civil actions can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute. Chap. 2. — ^The Time foe Oommencinq Actions for the Recovery of Real Property. Sec. 6433. (483.) Actions to recover Real Property, Dower. — No action for the recovery of real property, or for the 'possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within ten years before the commencement of the action. No action for the recovery of dower can be maintained by a widow unless the action is commenced within ten years after the death of her husband. Sec. 6433. (484.) Same. — No cause of action or defense to an action, aris- ing out of the title to real property, or to rents or profits out of the same, can be effectual unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within ten years before the commence- ment of the act in respect to which such action is prosecuted or defense made. Sec. 6434. (485.) After Entry. — No entry upon real estate is deemed suf- ficient or valid as n, claim, unless an action be commenced thereupon within One yea/r after making such entry, and within ten years from the time when the right to make it descended or accrued. Sec. 6435. (486.) Presumption from Legal Title. — In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof, within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title, for ten years before the commencement of the action. Sec. 6436. (487.) Entry and Posssesion under Written Title.— When it appears that the occupant, or those under whom he claims, entered into the possession of the property under claim of title, exfclusive of other right, found- Montana. ' 1627 ing such claim upon a written instrument as being a conveyance of the prop- erty in questiou, or upon the decree or judgment of a competent court, and that there has heen a continued occupation and possession of the property in- cluded in such instrument, decree, or judgment, or of some part of the prop- erty under such claim, for ten years, the property so included is deemed to have been held adversely, except that, when it consists of a tract divided into lots, the possession of one lot is not deemed a possession of any other lot of the same tract. Sec. 6437. (488.) Adverse Possession under Written Instrument, etc. Sec. 6438. (489.) Adverse Possession under Claim of Title not in Writing. Chap. 3. — The Time oi- CoMMirsrciNO AcTioi writ of error thereon, and the right of action is not barred by the judgment, a new action may be brought thereon in one year after the judgment. Sec. 10. Not when Different Time. — The provisions of this chapter shall not apply to cases in which a different time is limited by statute. By Chap. 244, bee. 7, an Action for Wilful Trespass in cutting trees, timber^ etc., must be brought within two years. NEW JEESEY. COMPILED STATUTE^ VOL. 3 (1911), 3162. 1. — ^Limitation of Actions. See. 1. Actions within Six Years. — All actions of trespass qua/re olausum f regit, all actions of trespass, detinue, trover, and replevin for taking away of goods and chattels, all actions of debt, founded upon any lending or contract without specialty, or for arrearages of rent due on a parol demise, and all ac- tions of account and upon the case, except actions for slander, and except, also, such actions as concern the trade or merchandise between merchant and mer- chant, their factors, agents, and servants. Sec. 3. Within Four Years. — All actions of trespass for assault, menace, battery, wounding, and imprisonment, or any of them, shall be commenced and sued within four years next after the cause of such action shall have accrued and not after. Sec. 3. Within Two Years. — Every action upon the case for word* shall be commenced and sued within two years next after the words spoken, and not after, and all actions hereafter accruing for injuries to persons caused by the- wrongful act, neglect, or default of any person or persons, firm or firms, in- dividual or individuals, corporation or corporations, within this State, shall be commenced and instituted within two years next after the cause of such ac- tion shall have accrued and not after. (As amended hy the Act of March 24, 1896.) Sec. 4. Against whom not to run. — If any person or persons who is, are, or shall be entitled to any of the actions specified in the three preceding sections of this act, is, are, or shall be, at the time of any such cause of action accruing, within the age of twenty-one years, or insane, that then such person or persona shall be at liberty to bring the said action so as he, she, or they institute or take the same within such time as is before limited, after his, her, or their Wew Jeeset. 1635 coming to or being of full age, or of sane memory, as by other person or per- sons having no such impediment might be done. See. 5. {As amended P. L. 1883, p. 33.) Nine Years; Sheriffs', Constables' and Collectors' Bonds. Sec. 6. Sealed Instruments. — Every action of debt or covenant for rent or arrearages of rent, founded upon any lease under seal, whether indented or poll, and every action of debt upon any single or penal bill for the payment of money only, or upon any obligation with condition for the payment of money only, or upon any award under the hands and seals of arbitrators for the payment of money only, shall be commenced and sued within sixteen years next after the cause of such action shall have accrued, and not after; but if any payment shall have been made on any such lease, specialty, or award, within or after the said period of sixteen years, then an action instituted on such lease, specialty, or award, within sixteen years after such payment, shall be good and effectual in law, and not after: Provided always, the time dur- ing which the person who is or shall be entitled to any of the actions specified in this section shall have been within the age of twenty-one years, or insane, shall not be taken or computed as part of the said limited period of sixteen years. Sec. 7. Judgments. — Judgments in any court of record of this State may be revived by scire facias, or an action of debt may be brought thereon within twenty years next after the date of such judgment, and not after: Provided, that the time during which the person who is or shall be entitled to the bene- fit of such judgment shall have been under the age of twenty-one years, or in- sane, shall not be taken or computed as part of the said limited period of twenty years. Sec. 12. Set-off. — That this act shall be deemed and taken to apply to the ease of any debt on simple contract alleged by way of set-off on the part of the defendant. Sec. 16. Right of Entry, Barred in Twenty Years. Sec. 17. Actions for Lands. — Every real, possessory, ancestral, mixed or other action, for any lands, tenements, or hereditaments, shall be brought or instituted within twenty years next after the right or title thereto, or cause of such action, shall accrue, and not after: Provided always, that the time dur- ing which the person who hath or shall have such right or title, or cause of action, shall have been under the age of twenty-one years, or insane, shall not be taken or computed as part of the said limited period of twenty years. Sec. 18. Equity of Redemption. — If a mortgagee, and those under him, be in possession of the lands, tenements, and hereditaments contained in the mort- gage, or any part thereof, for twenty years after default of payment by the mortgagor, then the right or equity of redemption therein shall be forever barred. See. 30. Actions by State, Twenty Years. Sec. 21. Actions on Penal Statutes. — Two years, where forfeiture is lim- ited to the State; one year, where benefit is given to any person who shall prosecute. 1636 Statutes of Limitation. Sec. 23. Actions against Sheriffs or other Officers to' Enforce Claims to Personal Property attached, etc., two months from the time of making the claim. II. — Ktle to Land by Adveese Possession. Sec. 28. Sixty Years' Possession.— 'Sixty years' actual possession of real estate, uninterruptedly continued, vests a full and complete right and title in every actual possessor or occupier of said land. Sec. 29. Thirty Years' Possession.— Thirty years' actual possession, unin- terruptedly continued, vests an absolute right and title in the actual posses- sor and occupier, wherever such possession commenced, or is founded upon a proprietary right duly laid thereon, and duly recorded, or wherever such pos- session was obtained by a fair bona fide purchaser of said right. NEW MEXICO. Compiled Laws, 1997, Title 33, Chap. 8. Time of Commencing Actions. Sec. 2913. (1860.) The following suits or actions may be brought within the time hereinafter limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially provided: Sec. 3914. (1861.) On Judgments of Courts of Record, Fifteen Years.— Actions upon any judgment of any court of New Mexico, or of any court of record of any other State or Territory of the United 'States, or the federal courts of the United States. Sec. 2915. (1862.) Bonds, Notes, etc., Six Years. — Those founded upon any bond, promissory note, bill of exchange, or other contract in writing, or upon any judgment of any court not of record. Sec. 2916. (1863.) Accounts, etc.. Four Years. — Those founded upon ac- counts and unwritten contracts, those brought for injuries to property, or for the conversion of personal property, or for relief upon the ground of fraud, and all other actions not herein otherwise provided for and specified. Sec. 2917. (1864.) Sureties on Official Bonds, Two Years. — Those against sureties upon official bonds, and those brought against sheriffs and other pub- lie officers for or on account of any liability incurred by the doing of any act in an official capacity, or by the omission of any official duty, and for injuries to the person or reputation. Sec. 2918. (1865.) Fraud. — In actions for relief on the ground of fraud or mistake, and in actions for injuries to or conversion of property, the cause of action shall not be deemed to have accrued until the fraud, mistake, injury, or conversion complained of shall have been discovered by the party aggrieved. Sec. 2919. (1866.) Account, at last Item. — When there is an open current account the cause of action shall be deemed to have accrued upon the date of the last item therein, as proven on the trial. New Mexico. 16-37 Sec. 2937. (1874.) Set-off.— A set-off or counterclaim may be pleaded as a defense to any cause of action, notwithstanding such set-off or counterclaim may be barred by the provisions of this act, if such set-off or counterclaiin so pleaded was the property or right of the party pleading the same at the time It became barred and at the time of the commencement of the action, and the same was not barred at the time the cause of action sued for accrued or ori- ginated; but no judgment for any excess of such set-off or counterclaim over the demand of the plaintiff as proven shall be rendered in favor of the de- fendant. Sec. 3931. (1878.) Accounts. — ^Accounts duly verified by the oath of the party claiming the same, or his agent, and promissory notes and other instru- ments in writing, not barred by the provisions of this act, shall be sufficient evidence in any suit to enable the plaintiff to recover judgment for the amount thereof, unless the defendant or his agent shall deny the same under oath. Sec. 2937. (1880.) Ten Years' Possession gives Title;. — ^Where any person or persons, their children, heirs, or assigns, shall, at the passing of this act or at any time after, have had possession for ten years of any lands, tenements, or hereditaments, which have been granted by the government of Spain, Mexico, or the United States, or by whatsoever authority empowered by said governments to make grants to lands, holding or claiming the same by virtue of a deed or deeds of conveyance, devise, grant, or other assurance purporting to convey an estate in fee-simple, and no claim by suit in law or equity effectu- ally prosecuted shall have been set up or made to the said lands, tenements, or hereditaments, within the aforesaid time of ten years, etc. Sec. 2938. (1881.) Ten Years after Accrual, etc. — No person or persons, or their children, heirs, or assigns, shall have or maintain any action or suit, either in law or equity, for any lands, tenements, or hereditaments but within ten years next after his, her, or their right to commence, have, or maintain such suit shall have come, fallen, or accrued, and that all suits either in law or equity for the recovery of any lands, tenements, or hereditaments shall be had and sued within ten years next after the title or cause of action or suits accrued or fallen, and at no time after the ten years shall have passed: Pro- vided, etc. By the Acts of 1897, chap. 73, sec. 66, a party is not to be deprived of the defense of the statute of limitations, when pleaded by him, because of his not denying the facts set forth in the adverse pleadings. 1638 Statutes of Limitation. NEW YOEK. Code of Civil Peoceduee. OkAP. rV. — ^LlMITATIOlSr OF THE TIME OF ElWOBCING A CrVEC. EEMEDT. TiTLB I. — ^Actions foe the Recoveet of Real Peopertt. Title II. — Actions Othee Than for the Recoveet of Real Peopeett. Title III. — General Peovisions. Title I. — Actions for the Recovery of Real Property. Sec. 362. When the People will not sue. — The people of the State will not sue a person for or with respect to real property, or the issue or profits thereof, by reason of the right or title of the people to the same, unless either, 1. The cause of action accrued within forty years before the action is com- menced; or, 2. The people, or those from whom they claim, have received the rents and profits of the real property, or of some part thereof, within the same period of time. Sec. 365. Seizin within Twenty Years, when necessary, etc. — An action to recover real property, or the possession thereof cannot be maintained by a party, other than the people, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in (question, within twenty years before the commencement of the action. Sec. 366. The Same. — A defence or counterclaim, founded upon the title to real property, or to rents or services out of the same, is not efi'ectual, unless the person making it, or under whose title it is made, or his ancestor, pre- decessor, or grantor, was seized or possessed of the premises in question, within twenty years before the committing of the act, with respect to which it is made. Sec. 367. Action after Entry. — ^An entry upon real property is not sufficient or valid as a claim, unless an action is commenced thereupon, within •we year after the making thereof, and within twenty yea/rs after the time when the right to make it descended or accrued. Sees. 368-373. Possession, when presumed — Adverse Possession. Title n. — Actions other than for the Recovery of Real Property X Sec. 376. [Amended, 1877, ch. 416; 1894, ch. 307.] When Satisfaction of Judgment presumed. — A final judgment or decree for a, sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate's court of the State, or heretofore or hereafter rendered, in a court of record lAn action for negligence against a city having 50,000 inhabitants must be brought within one year after the injury. L. 1886, chap. 572. An action on a constable's bond must be brought within two years after expiration of the year for which he is elected. New Yoek. 1639 within the United States, or elsewhere, or hereafter docketed pursuant to the provisions of Sec. 3017 of this Act, is presumed to be paid and satisfied, after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it. This presumption is conclusive, ex- cept as against a person, who, within twenty years from that time, makes a payment or acknowledges an indebtedness of some part of the amount re- covered by the judgment or decree, or his heir or personal representatives, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the person to be charged thereby. Sec. 377, Effect of Return of Execution. — If the proof of payment, under the last section, consists of the return of an execution partly satisfied, the adverse party may show, in full avoidance of the effect thereof, that the al- leged partial satisfaction did not proceed from a payment made, or a sale of property claimed, by him, or by a person whom he represents. Sec. 378. How presumption raised. — A person may avail himself of the presumption created by the last section but one, under an allegation that the action was not commenced, or that the proceeding was not taken, within the time therein limited. Sec. 379. Limitatioli of Action to Redeem from a. Mortgage. — An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the non-fulfilment of a covenant therein contained. Sec. 380. Other Periods of Limitation. — The following actions must be com- meneer within the following periods, after the cause of action has accrued. Sec. 381. [Amended, 1877, ch. 416.] Within Twenty Years. — An action upon a sealed instrument. But where the action is brought for breach of a covenant of seizin, or against incumbrances, the cause of action is, for the purposes of this section only, deemed to have accrued upon an eviction, and not before. Sec. 383. [Amended 1877, chs. 416, 422; 1894, ch. 307.] Within Six Years. — 1. An action upoij a contract obligation or liability, express or implied; except a judgment or sealed instrument. 2. An action to recover iipon a liability created by statute; except a penalty or forfeiture. 3. An action to recover damages for an injury to property, or a personal injury; except in a case where a different period is expressly prescribed in this chapter. An action for damages from mobs must be brought within three months after the loss or injury. An action to recover excessive fare, etc., must be brought within one year from the talcing. An action to recover for usury must be brought within one year after the payment. 1640 Statutes op Limitation. 4. An action to recover a chattel. 5. An action to procure a, judgment, other than for a sum of money, on the ground of fraud, in a ease which, on December 31, 1846, was cognizable by the Court of Chancery. The cause of action, in such a case, is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. 6. An action to establish a will. Where the will has been lost, concealed, or destroyed, the cause of action is not deemed to have accrued, until the dis- covery, by the plaintiff or the person under whom he claims, of the facts upon which its validity depends. 7. An action upon a judgment or decree, rendered in a court not of record, except where a transcript shall be filed, pursuant to Sec. 3017 of this Act, and, also, except a decree heretofore rendered in a surrogate's court of the State. The cause of action, in such a case, is deemed to have accrued when final judg- ment was rendered. Sec. 383. [Amended, 1877, ch. 416; 1886, ch. 572; 1889, eh. 440; 1902, oh. 600, § 2.] Within Three Years. — 1. An action against a, sheriff, coroner, con- stable, or other ofiioer, for the non-payment of money collected upon an execu- tion. ' 2. An action against a constable, upon any other liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except an escape. 3. An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the State; except where the statute imposing it prescribes a different limitation. 4. An action against an executor, administrator, or receiver, or against the trustee of an insolvent debtor, appointed, as prescribed by law, in a special pro- ceeding instituted in a court or before a judge, brought to recover a chattel. Or damages for taking, detaining, or injuring personal property by the de- fendant, or the person whom he represents. 5. An action to recover damages for a personal injury, resulting from negligence. Sec. 384. Within Two Years. [Amended 1896, ch. 335; 1900, ch. 117.]— 1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, or false imprisonment, malicious prosecution or mal- practice. 2. An action upon a statute, for a forfeiture or penalty to the people of the State. Sec. 385. Within One Year. — 1. An action against a sheriff or coroner, upon a liability incurred by him, by doing an act in his official capacity, or by the omission of an official duty; except the non-payment of money collected upon an execution. 2. An action against any other officer, for the escape of a prisoner, arrested or imprisoned by virtue of a civil mandate. Sec. 386. When Cause of ActiCn Accrues on a Current Account. — In an ac- tion brought to recover a balance due upon a mutual, open, and current ac- New Toee. 1641 count, where there have been reciprocal demajads between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. Sec. 387. Action for Penalty, etc., by any Person who will sue. — An action upon a statute for a, penalty or forfeiture, given wholly or partly to any per- son who will prosecute for the same, must be commenced within one yewr after the commission of the offense; and if the action is not commenced within the year by a private person, it may be commenced within two years thereafter, in behalf of the people of the State, by the attorney-general, or the district at- torney of the county where the offense was committed. Sec. 388. Actions not provided for. — An action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues. Sec. 389. Actions by the People subject to the same Limitations. — The lim- itations prescribed in this title apply alike to actions brought in the name of the people of the State, or for their benefit, and to actions by private persons. Sec. 390. Action against a Non-resident, upoi a Demand Barred by the Law of his Residence. — ^Where a, cause of action, which does not involve the title to or possesion of real property within this State, accrues against a per- son, who is not then a resident of the State, an action cannot be brought thereon in a court of the State, against him or his personal representative, after the expiration of the time limited, by the laws of his residence, for bring- ing a like action, except by a resident of the State, and in one of the follow- ing cases: 1. Where the cause of action originally accrued in favor of a resident of the State. 2. Where, before the expiration of the time so limited, the person in whose favor it originally accrued, was or became a resident of the State; or the cause of action was assigned to, and thereafter continuously owned by, a resident of the State. Sec. 390a. [Added ch. 193, 1902.] Cause of Action Arising in Another State. Sec. 391. [Amended, 1877, ch. 416.] When Person Liable, etc.. Dies with- out the State. — If a person against whom a cause of action exists dies with- out the State, the time which elapses between his death and the expiration of eighteen months after the issuing, within the State, of letters testamentary or letters of administration, is not a part of the time limited for the commence- ment of an action therefor, against his executor or administrator. Sec. 393. [Amended, 1877, ch. 416.] Cause of Action accruing between the Death of a Testator or Intestate, and the Grant of Letters. — For the purpose of computing the time within which an action must be commenced in a court of the iState, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration; or to recover damages for taking, detaining, or injuring personal property within the same period; the letters are deemed to have been issued within six years after the death of the 1642 Statutes of Limitation. testator or intestate. But where an action is barred by this section, any of the next of kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of twenty-one years, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such a disability, maintain an action to recover damages by reason thereof; in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator. Sec. 393. No Limitation of Action on Bank-notes, etc. — This chapter does not affect an action to enforce the payment of a bill, note, or other evidence of debt, issued by a moneyed corporation, or issued or put in circulation as money. Sec. 394. [Amended, 1877, ch. 416; 1897, oh. 281.] Action against Direc- tors, etc., of Banks. — This chapter does not affect an action against a director or stockholder of a moneyed corporation or banking association, to recover a penalty or forfeiture imposed, or to enforce a liability created by the com- mon law or by statute; but such an action must be brought within three years after the cause of action has accrued. Sec. 395. Acknowledgment or New Promise must be in Writing. — An ac- knowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing con- tract, whereby to take a case out of the operation of this title. But this sec- tion does not alter the effect of a payment of principal or interest. Sec. 396. Exceptions as to Persons under Disabilities. Sec. 397. Defence or Counterclaim. — A cause of action, upon which an ac- tion cannot be maintained, as prescribed in this title, cannot be effectually interposed as a defence or counterclaim. Title III. — General Provisions. Sec. 398. [Amended, 1877.] When Action deemed to be commenced. — ^An action is commenced against a defendant, within the meaning of any provi- sion of this act, which limits the time for commencing an action, when the summons is served on him; or on a. co-defendant who is a joint contractor, or otherwise united in interest with him. Sec. 399. Attempt to commence Action in a Court of Record. Sec. 400. Attempt to commence Action in a Colirt not of Record. Sec. 401. [Amended, 1888, ch. 498; 1896, ch. 665.] Exception, when De- fendant is without the State, or concealed therein. — If, when the cause of action accrues against a person, he is without the State, the action may be commenced within the time limited therefor, after his return into the State. If, after a cause of action has accrued against a person, he departs from the State and remains continuously absent therefrom for the space of one year or more, or if, without the knowledge of the person entitled to maintain the action, he resides within the State under a false name, the time of his absence or of such residence within the State under such false name is not a part of the time limited for the commencement of the action. But this section does New Toek. 1643 not apply while a designation made as prescribed in section 430, or in subdi- rision second of section 432 of this act remains in force. See. 403. Exception, when a Person entitled^ etc., Dies before Limitation expires. — If a person entitled to maintain an action, dies before the expiration of the time limited for the commencement thereof, and the cause of action sur- vives, an action may be commenced by his representative, after the expiration of that time, and within one year after his death. Sec. 403. [See Amendment, 1891, ch. 70; 1896, ch. 897.] Exception, when a Person Liable, etc.. Dies within the State. — The term of eighteen months after the death, within this State, of a person against whom a cause of ac- tion exists, or of a person who shall have died within sixty days after an attempt shall have been made to commence an action against him pursuant to the provision of section three hundred and ninety-nine of this act, is not a part of the time limited for the commencement of an action against his execu- tor or administrator. If letters testamentary or letters of administration upon his estate are not issued, within the State, at least six months before the expiration of the time to bring the action, as extended by the foregoing provision of this section, the term of one year after such letters are issued is not a part of the time limited for the commencement of such an action. * * * Sec. 404. In Suits by Aliens, Time of Disability in Case of War to be de- ducted. Sec. 406. Stay by Injunction, etc., to be deducted. — ^Where the commence- ment of an action has been stayed by injunction, or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action. Sec. 410. Provision when the Action cannot be maintained without a De- mand. — ^Where a right exists, hut a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time when the right to make the demand is com- plete; except in one of the following cases: 1. Where the right grows out of the receipt or detention of money or prop- erty, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person, having the right to make the demand has actual knowledge of the facts, upon which that right depends. 2. Where there was a deposit of money, not to be repaid at a fixed time, but only upon a special demand, or a delivery of personal property, not to be returned, specifically or in kind, at a fixed time or upon a fixed contingency, the time must be computed from the demand. Sec. 411. Provision in Case of Submission to Arbitration. Sec. 412. Provision when Action is discontinued, etc., after Answer. Sec. 413. How Objection taken, under this Chapter. — The objection, that the action was not commenced within the time limited, can be taken only by answer. The corresponding objection to a defence or counterclaim can be taken only by reply, except where a reply is not required, in order to enable the plaintiff to raise an issue of fact upon an allegation contained in the answer. 1644 Statutes of Limitation. Sec. 414. Cases to which this Chapter applies. — The provisions of this chap- ter apply, and constitute the only rules of limitation applicable, to a, civil action or special proceeding, except in one of the following cases: 1. A case where a different limitation is specially prescribed by law, Or a, shorter limitation is prescribed by the written contract of the parties. 2. A cause of action or a defence which accrued before the first day of July, 1848. The statutes then in force govern with respect to such a cause of action Or defence. 3. A case, not included in the last subdivision, in which a person is entitled, when this act takes effect, to commence an action, or to institute a, special pro- ceeding, or to take any proceeding therein, or to pursue a remedy upon a judg- ment, where he commences, institutes, or otherwise resorts to the same, before the expiration of two years after this act takes effect ; in either of which cases the provisions of law applicable thereto, immediately before this act takes effect, continues to be so applicable, notwithstanding the repeal thereof. 4. A case where the time to commence an action has expired, when this act takes effect. The word " action," contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action. Sec. 415. Mode of computing Periods of Limitation. — The periods of limi- tation prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defence, or otherwise, as the case requires, to the time when the claim to that relief is actually interposed by the party, as a plaintiff or a defendant, in the particular action or special proceeding. NOETH CAEOLINA. Code of Civil Peoceduee, 1908. {Pell's Revisal, 1908.) Chap. 1, Title 3. Chap. 12. — Actions in Genebal.! III. — ^LIMITATIONS! — General Peovisions. See. 359. (161.) When Action deemed colnmenced. — An action is com- menced as to each defendant when the summons is issued against him. Sec. 366. (162.) Action on Judgment when Defendant is out of State. — If, when the cause of action accrue or judgment be rendered or docketed against any person, he shall be out of the State, action may be commenced or judgment enforced within the times herein respectively limited after the re- 1 Sections 136 and 137 (as to time from May 20, 1861, etc.) were repealed by Laws of 1891, chap. 113. ISTiOETH Carolina. 1645 turn of such person into this State; and if, after such cause of action shall have accrued or judgment rendered or docketed, such person shall depart from and reside out of this State, or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action or the enforcement of such judgment. This section shall apply to all actions that have accrued and judgments rendered or transferred or docketed since August 24, 1868. The Acts of 1891, Chaps. 92 and 356, making it the duty of Personal Repre- sentatives to plead the bar of the statute of limitations as a defense to all actions against them in their representative capacity, were repealed by the Act of 1893, Chap. 7. See. 360. (138.) Benefit of Limitation; must be taken by Answer. — Civil actions can only be commenced within the periods prescribed in this chapter 366, next page, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute. But the objec- tion that the action was not commenced within the time limited, can only be taken by answer. IV. LIMITATIONS RBL4.L PeOPEKTT. Sec. 382. (141.) When Persons having Title must sue. — When the person in possession of any real property, or those under whom he claims, shall have been possessed of the same, under known and visible lines and boundaries, and under colorable title for seven years, no entry shall be made or action sus- tained against such possessor by any person having any right or title to the same, except during the seven years next after his right or title shall have descended or accrued, who, in default of suing within the time aforesaid, shall be excluded from any claim thereafter to be made; and such possession, so held, shall be a perpetual bar against all persons not under disability. Sec. 383. (143.) Seizin within Twenty Years, when necessary. — No action for the recovery of real property, or the possession thereof, shall be main- tained, unless it appear that the plaintiff or those under whom he claims, was seized or possessed of the premises in question within twenty years before the commencement of such action; unless he was under the disabilities prescribed by law. Sec. 384. (144.) Adverse Possession, Twenty Years. Sec. 385. (145.) Action after Entry. — ^No entry upon real estate shall be deemed sufBcient or valid, as a claim, unless an action be commenced thereupon within One year after the making of such entry, and within the time pre- scribed in this title. Sec. 388. (150.) Railroads, etc., not Barred. — No railroad, plank-road, turnpike, or canal company shall be barred of, or presumed to have conveyed, any real estate, right of way, easement, leasehold, or other interest in the soil which may have been condemned, or otherwise obtained for its use, as a right of way, depot, station-house, or place of landing, by any statute of limitation or by occupation of the same by any person whatever. 1646 Statutes oi' Limitation. Sec. 389. (150a.) [By the Act of 1891, chap. 224, cities and towns are never barred as to their public ways, squares, etc.] V. — Limitations Other Than Real Peopeett. Sec. 390. (151.) Periods of Limitation prescribed. — The periods prescribed for the commencement of actions, other than for the recovery of real prop- erty, shall be as set forth in this sub-chapter: Sec. 391. (153.) Within Ten Years. — 1. An action upon a judgment or decree of this State, or any court of the United States, or of any State or Ter- ritory thereof. 2. An action upon a sealed instrument against the principals thereto. 3. An action for the foreclosure of a mortgage, or deed in trust for creditors with a power of sale, of real property, where the mortgagor or grantor has been in possession of the property, within ten years after the forfeiture of the mortgage, or after the power of sale became absolute, or within ten years after the last payment on the same. 4. An action for the redemption of a mortgage, where the mortgagor has been in possession, or for a residuary interest under a deed in trust for cred- itors, where the trustee, or those holding under him, shall have been in posses- sion, within ten years after the right of action accrued. Sec. 392. (153.) Within Seven Years. — 1. An action on a judgment ren- dered by a justice of the peace, from the date thereof. 2. By any creditor of a deceased person against his personal or real repre- sentative, within seven years next after the qualification of the executor or administrator and his making the advertisement required by law, for creditors of the deceased to present their claims, where no personal service of such notice in writing is made upon the creditor; and a creditor thus barred of a recovery against the representative of any principal debtor shall also be barred ' of a recovery against any surety to such debt. Sec. 393. (154.) Within Six Years. — 1. An action upon the official bond of any public officer. 2. An action against any executor, administrator, collector, or guardian on his official bond, within six years after the auditing of his final account by the proper officer, and the filing of such audited account as required by law. 3. An action for injury to any incorporeal hereditament. Sec. 394. Five Years. — Within five years: 1. No suit, action or proceeding shall be brought or maintained against any railroad company owning or operating a railroad for damages or compensa- tion for right of way or use or occupancy of any lands by said company for use of its railroad unless such suit, action or proceeding shall be commenced within five years after said lands shall have been entered upon for the pur- pose of constructing said road, or within two years after said road shall be in operation. 2. No suit, action or proceeding shall be brought or maintained against any railroad company by any person for damages caused by the construction of North Carolina. 1647 said road, or the repairs thereto, unless such suit, action or proceeding shall be commenced within five years after the cause of action accrues, and the jury shall assess the entire amount of damages which the party aggrieved is entitled to recover by reason of the trespass on his property. Sec. 395. (155.) Within Three Years.— 1. An action upon a contract, ob- ligation, or liability, arising out of a contract, express or implied, except those mentioned in the preceding sections. 2. An action upon a liability created by statute, other than a penalty or forfeiture, unless some other time be mentioned in the statute creating it. 3. An action for trespass upon real property; when the trespass is a continu- ing one, such action shall be commenced within three years from the original trespass, and not thereafter. 4. An action for taking, detaining, converting, or injuring any goods or chattels, including action for their specific recovery. 5. An action for criminal conversation, or for any other injury to the per- son or rights of another, not arising on contract and not hereinafter enum- erated. '6. An action against the sureties of any executor, administrator, collector, or guardian, on the official bond of their principal, within three years after the breach thereof complained of. 7. An action against bail, within three years after judgment against their principal, but bail may discharge themselves by a surrender of their principal, at any time before final judgment against them. 8. Fees due to any clerk, sheriff, or other officer, by the judgment of a court, within three years from the time of the judgment rendered, or of the issuing of the last execution therefor. 9. An action for relief on the ground of fraud or mistake; the cause of action shall not be deemed to have accrued until the discovery by the ag- grieved party of the facts constituting such fraud or mistake. {As amended hy Chap. 269 of the Acts of 1889.) 10. An action for the recovery of real property sold for taxes within three years after the execution of the sheriff's deed. Sec. 396. Two Years. — Within two years: 1. All claims against the several counties, cities and towns of this State, whether by bond or Otherwise, shall be presented to the chairman of the board of county commissioners or to the chief officers of said cities and towns, as the case may be, within two years after the maturity of such claims, or the holders of such claims shall be forever barred from a recovery thereof. See. 397. (156.) Within One Year. — 1. An action against a sheriff, coro- ner, or constable, or other public officer, for a trespass under color of his office. 2. An action upon a statute for a penalty or forfeiture, where the action is given to the State alone, or in whole or in part to the party aggrieved, or to a common informer, except where the statute imposing it prescribes a different limitation. 3. An action for libel, assault, battery or false imprisonment. 1648 Statutes oi" Limitation. 4. An action against a sheriff, or other officer, for the escape of a prisoner arrested or imprisoned on civil process. 5. An application for a widow's year's provision. Sec. 398. (157.) Within Six Months. — ^An action for slander. Sec. 399. (158.) Action for other Relief. — An action for relief not herein provided for, loitMn ten years. Sec. 376. (160.) Action upon an Account Current. — In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the latest item proved in the account, on either side. ISrOETH DAKOTA. Code of Civil Peocedttee 1913. Ohap. IV. — Time of Commencing Actions. Aet. 1. In General. Sec. 7358. (5184.) Limitations. — Civil actions can only be commenced within the periods prescribed in this code, after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute. But the objection that the action was not commenced within the time limited can only be taken by answer. Aet. 2. Time of commencing Actions for the Recovery of Real Property. Sec. 7359. (5185.) By the State.— The State of North Dakota will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the State to the same, unless: 1. Such right or title shall have accrued within forty years before any ac- tion or other proceeding for the same shall be commenced; or 2. The State, or those from whom it claims shall have received the rents and profits of such real property or of some part thereof within the space of forty years. Sec. 7360. (5186.) Persons claiming under. — ^No action shall be brought for, or in respect to, real property, by any person claiming by virtue Of grants from the 'State, unless the same might have been commenced, as herein speci- fied, in case such grant has not been issued or made. Sec. 7361. (4836.) Extension of same. — When grants of real property shall have been issued or made by the State, and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, in such case an action for the recovery of the premises so conveyed may be brought either by the State, or by any subsequent grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period. Sec. 7362. (5188.) Seizin within Twenty Years.— No action for the recov- ery of real property, or for the recovery of the possession thereof, shall be ISToETH Dakota. .1649 maintained, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action. Sec. 7363. (5189.) Same. — .No cause of action, or defense or counterclaim to an action, founded upon the title to real property, or to rents or services out of the same, shall he effectual, unless it appears that the person prosecut- ing the action or interposing the defense or counterclaim, or under whose title the action is prosecuted or the defense or counterclaim is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within twenty years before the committing of the act in respect to wbich such action is prosecuted or defense or counterclaim made. Sec. 7364. {5190.) One Year after Entry. — ^No entry upon real estate shall be deemed sufficient or valid as a claim, unless an action is commenced thereon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued. Sec. 7365. (5191.) Possession presumed. — In every action for the recov- ery of real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person shall be deeomed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed ad- versely to such legal title for twenty years before the commencement of such action. Sec. 7366. (5192.) Occupation under Written Instrument. 7367-7370. (Sees. 5193-5196.) Adverse Possession. Art. 3. Tvme of commencing other Actions. Sec. 7373. (5199.) Other Periods. — The following actions must be com- menced within the periods set forth in the following five sections after the cause of action has accrued. See. 7374. (5200.) Ten Years. — 1. An action upon a judgment or decree of any court of the United States, or of any State or Territory within the United States. 2. An action upon a contract contained in any conveyance or mortgage of or instrument affecting the title to real property, except a covenant of war- ranty, an action upon which must be commenced within ten years after the final decision against the title of the covenantor. 3. A proceeding by advertisement or otherwise for the foreclosure of a mortgage upon said estate. Sec. 7375. (5201.) Six Years. — 1. An action upon a contract, obligation or liability, express or implied, excepting those mentioned in section 6762 (mortgages of personal property). 2. An action upon a liability created by statute, other than a penalty or forfeiture, when not otherwise expressly provided. 104 1650 Statutes of Limitation. 3. An action for trespass upon real property. 4. An action for taking, detaining, or injuring any goods or chattels, in- cluding actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the per- son or rights of another, not arising on contract, and not hereinafter enum- erated. 6. An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the Court of Chancery, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. 7. An action for the foreclosure of a mechanic's lien; provided, that this subdivision shall not apply to any mechanic's lien filed prior to July 1, 1903. Sec. 7376. (5302.) Three Years. — 1. An action against a sheriff, coroner or constable, upon a liability incurred by the doing of an act in his ofScial capacity and by virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution. But this section shall not apply to an action for an escape. 2. An action upon a statute for a penalty or forfeiture, where the action ia given to the party aggrieved, or to such party and the State, except when the statute imposing it prescribes a different limitation. Sec. 7377. (5203.) Two Years. — 1. An action for libel, slander, assault, battery, or false imprisonment. 2. An action upon a statute for a forfeiture or penalty, to the State. 3. An action for the recovery of damages resulting from malpractice. 4. An action for injuries done to the person of another, when death en- sues from such injuries; and the cause of action shall be deemed to have accrued at the time of the death of the party injured. Sec. 7378. (5304.) One Year. — An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process. Sec. 7379. (5305.) Open Account. — In an action brought to recover a bal- ance due upon a mutual, open, and current account, when there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the a(Jcount on either side. Sec. 7380. (3206.) Forfeiture by Person — State. — An action upon a stat- ute for a penalty or forfeiture given in whole or in part to any person who will prosecute for the same must be commenced within one year after the com- mission of the offense; and if the action is not commenced within the year by a private party, it may be commenced within two years thereafter in behalf of the State by the attorney-general, or by the State's' attorney of the county where the offense was committed. Sec. 7381. (5307.) Other Relief, Ten Years.— An action for relief not here- inbefore provided for must be commenced within ten years after the cause of action shall have accrued. Sec. 7383. (5208.) Same to Public and Persohs. — The limitations pre- scribed in this chapter shall apply to actions brought in the name, of tho State, or for its benefit, in the same manner as to actions by private parties. Ohio. 1651 Aet. 4. General Provisions as to the Time of commencing Actions. Sec. 7384. (5310.) Exception — Absence. — If, when the cause of action shaH accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited after the return of such person into this iState, and if after such cause of action shall have ac- crued, such person shall depart from and reside out of this State or remain continuously absent therefrom for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action; provided, however, that the provisions of this section shall not apply to the foreclosure of real estate mortgages by action or otherwise; provided, further, that action against trustees acting xin- der the town site laws of the United States and this State must be com- menced within two years of the date when the cause of action accrued; pro- vided, further, that as to causes of action now existing, this section shall be effective January 1, 1912. Sec. 7389. (5215.) Injunction, etc. — When the commencement of an action is stayed by injunction or other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not part of the time limited for the commencement of the action. Sec. 7393. (5218.) Bank Notes. — This chapter does nof aflfect actions to enforce the payment of bills, notes or other evidence of debt, issued by moneyed corporations, or issued or put in circulation as money. OHIO. AiTifOTATED Geeteeal Code (Page & Adams, 1910). Paet III, Title 4, Division 1, Chap. 2. Limitation of Actions. General Limitations. Sec. 11218 (4976, 4979.) Lapse of time a bar. — A civil action, unless a different limitation is prescribed by statute, can be commenced only within the period prescribed in this chapter. . ^yhen interposed by proper plea by a party to an action mentioned in this chapter, lapse of time shall be a bar thereto as herein provided. •Real Property. Sec. 11219 (4977, 4978.) To recover real estate. — An action to recover the title to or possession of real property, shall be brought within twenty-one years after the cause thereof accrued, but if a person entitled to bring such ac- tion at the time the cause thereof accrues, is within the age of minority, of unsound mind, or imprisoned, such person after the expiration of twenty-one years from the time the cause of action accrues, may bring such action within ten years after such disability is removed. 1652! Statutes of Limitation. Sec. 11230. (4977.) Real Estate Dedicated to Public Use.— Twenty-one years' adverse possession and occupancy extinguishes public easement in any street or alley laid out and shown on the recorded plat of any city Or village. Contracts. Sec. 11221. (4980.) Contract in writing. — ^An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued. Sec. 11233. (4981.) Contract not in writing. — ^An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued. Certain Torts. Sec. 11324. (4982.) Four years. — ^An action for either of the following causes shall be brought within four years after the cause thereof accrued: 1. For trespassing upon real property; 2. For the recovery of personal property, or for taking, detaining, or in- juring it; 3. For relief on the ground of fraud; 4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated. If the action be for trespassing underground or injury to mines, or for the wrongful taking of personal property the cause thereof shall not accrue un- til the wrongdoer is discovered; nor, if it be for fraud, until the fraud is discovered. Sec. 11225. (4983.) One Year. — An action for libel, slander, assault, bat- tery, malicious prosecution, false imprisonment or malpractice, or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrues. Sec. 11325-1. When Bank Liable on Forged or Raised Check. — No bank which has paid and charged to the account of a depositor any money on a forged or raised check issued in the name of said depositor shall be liable to said depositor for the amount paid thereon unless either, (1) within one year after actual written notice to said depositor that the vouchers represent- ing payraeuts charged to the account of said depositor for the period during which such payment waS' made are ready for delivery, or (2) in case no such notice has been given, within one year after the return to said depositor of the voucher representing such payment, said depositor shall notify the bank that the check so paid is forged or raised. Other Cases. Sec. 11326. (4976, 4984.) On Official Bond. — ^An action upon the official bond or undertaking of an officer, assignee, trustee, executor, administrator or guardian, or upon a bond or undertaking given in pursuance of a statute, can Oklahoma. 1653 only be brought within ten years after the cause of action accrues ; but this sec- tion shall be subject to the qualification in sec. 4973. Sec. 11227. (4985.) For other Relief.— An action for relief not herein- before provided for can only be brought within ten years after the cause of action accrues. This section does not apply to an action on a judgment ren- dered in another State or territory. Saving Clause — Disabilities. Sec. 11229. (4986.) Disabilities. — Unless otherwise specially provided therein, if a person entitled to bring any action mentioned in this subdivision, except for a penalty or forfeiture, is, at the time the cause of action accrues, within the age of minority, of unsound mind, or imprisoned, such person may bring such action within the respective times limited by this subdivision, after such disability is removed. When the interests of two or more parties are joint and inseparable, the disability of one shall inure to the benefit of all. When Action Begins. Sec. 11330. (4987.) When commenced. Sec. 11231. (4988.) When Action deemed commenced. — ^Within the mean- ing of this chapter, an atteiript to commence an action shall be deemed equiva- lent to its commencement, when the party diligently endeavors to procura a service, if such attempt be followed by service within sixty daya. Bar of Foreign Law and Other Matters. Sec. 11234. (4990.) Action, Time for Bringing. — ^If the laws of any State or country where the cause of action arose limits the time for the commence- ment of the action to a less' number of years than do the statutes of this State in like causes of action then said cause of action shall be barred in this State at the expiration of said lesser number of years. Title II., CShap. 13. See. 10448. (6599.) Forceable Entry and Detainer — ^Jurisdiction of Jus- tice — Limitation. — * * * Such action can only be brought within two years after the cause thereof shall have accrued. OKLAHOMA. Revised Laws, Civil PeocedtjeEj 1910. Vol. 2, Ohap. 60, Aet. 2. Limitation of Actions. 4655. (3888. § 16.) Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought 1654 Statutes of Limitatioit. within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: First. An action for the recovery of real property sold on execution, brought by the execution debtor, his heirs or any person claiming under him, by title acquired, after the date of the judgment, within five years after the date of the recording of the deed made in pursuance of the sale. Second. An action for the recovery of real property sold by executors, ad- ministrators or guardians, upon an order or judgment of a court directing such sale, brought by the heirs or devisees of the deceased person; or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date of the judgment or order, within five years after the date of the recording of the deed made in pursuance of the sale. Third. An action for the recovery of real property sold for taxes, within two years after the date of the recording of the tax deed. Fourth. An action for the recovery of real property not hereinbefore pro- vided for, within fifteen years. Fifth. An action for the forcible entry and detention, or forcible detention only, of real property, within two years. 4656. (3889. § 17.) Any person entitled to bring an action for the recov- ery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed. 4657. (3890. § 18.) [As amended ly the Act of 1895, ch. 39.)— Civil ac- tions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards : First. Within five years: An a;ction upon any contract, agreement or promise in writing. Second. Within three years: An action upon a contract, express or im- plied, not in writing; an action upon a liability created by statute other than a, forfeiture or penalty. Third. Within two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. Fourth. Within one year: An action on a foreign judgment; an action for libel, slander, assault, battery, malicious prosecution, or false imprisonment; an action upon a statute for penalty or forfeiture, except where the statute imposing it prescribes a different limitation. Fifth. An action upon the official bond or undertaking of an executor, ad- ministrator, guardian, sheriff, or any other officer, or upon the bond or under- taking given in attachment, injunction, arrest, or in any case whatever re- quired by the statute, can only be brought within fi,ve years after the cause of action shall have accrued. Oregon. 1655 BisDth. An action for relief, not hereinbefore provided for, can only be brought within five years after the cause of action shall have accrued. 4664. (3897. § 25.) When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense, except as otherwise provided with reference to a counterclaim or aet-off. OKEGOlSr. Lord's Oeegon Laws^ 1910. Code Civil Prooedttee, Title 1, Chap. II. Chap. II. — Limitations of Actions. Section 3. Time of commencing Actions. — Actions at law shall only be com- menced within the periods prescribed in this title, after the cause of action shall have accrued; except where, in special cases, a different limitation is prescribed by statute. But the objection that the action was not commenced within the time limited shall only be taken by answer, except as otherwise provided in Section 67. Sec. 4. Real Property. — The periods prescribed in the preceding section for the commencement of actions shall be as follows: Within ten years, actions for the recovery of real property, or for the re- covery of the possession thereof; and no action shall be maintained for such recovery, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of said action: Provided, that in all cases where ■oi cause of action has already accrued, and the period prescribed by this section within which an action may be brought has expired, or will expire within one year from the approval of this act, an action may be brought on such cause of action within one year from the date of the approval of this act. Sec. 5. Within Ten Years. — 1. An action upon a judgment or decree of any court of the United States, or of any State or Territory within the United States. 2. An action upon a sealed instrument. Sec. 6. Within Six Years. — 1. An action upon a contract or liability, ex- press or implied, excepting those mentioned in section 5. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for waste or trespass upon real property. 4. An action for taking, detaining, or injuring personal property, including an action for the speciiic recovery thereof. See. 7. Within Three Years. — 1. An action against a sheriff, coroner, or constable, upon a liability incurred by the doing of an act in his official ca- pacity, and in virtue of his office; or by the omission of an official duty; in- cluding the non-payment of money collected upon an execution. But this sec- tion shall not apply to an action for an escape. 1656 Statutes of Limitation. 2. An action upon a statute for penalty or forfeiture, where the action is. given to the party aggrieved, or to such party and the State, except where the statute imposing it prescribes a different limitation. Sec. 8. Within Two Years. — 1. An action for assault, battery, false im- prisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not herein especially enumer- ated. 2. An action upon a, statute for a forfeiture or penalty to the State, or county. Sec. 9. Within One Year. — 1. An action against a sheriff or other ofiBcer,. for the escape of a prisoner arrested or imprisoned on civil process. 2. Actions for libel and slander. Sec. 10. Actions for Penalties. — ^An action upon a statute for a penalty given in the whole or in part to the person who will prosecute for the same, shall be commenced within one year after the commission of the offense; and^ if the action be not commenced within one year by a private party, it may be commenced within two years thereafter, in behalf of the State, by the dis- trict attorney of the county when the offense was committed, or is triable. Sec. 11. Other Actions. — An action for any cause not hereinbefore provided for shall be commenced within ten years after the cause of action shall hav& accrued. Sec. 13. Accounts. — In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demanda between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side; but whenever a period of more than one year shall elapse, between any of a series of items, or demands, they are not to be deemed such an account. Sec. 13. Action by the State. — The limitations prescribed in this title shall not apply to actions brought in the 'name of the State, or any county or other public corporation therein, or for its benefit, but causes of action that have heretofore become barred by virtue of any statutory provision are not in- tended to be revived thereby. Sec. 16. When Defendant is Absent or Concealed. — ^If, when the cause of action shall accrue against any person, who shall be out of the State or con- cealed therein, such action may be commenced within the terms herein respec- tively limited, after the return of such person into the State, or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, or conceal himself, the> time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action. Sec. 26. Cause of Action Barred. — When the cause of action has arisen in another State, Territory, or country, between non-residents of this State, and by the laws of the State, Territory, or country where the cause of action arose, an action cannot be maintained thereon by reason of lapse of time, no actioa shall :be maintained thereon in this State. Pewnstxvania. 1657 Title VI., Chap. I. Sxnis IN Eqtjitt. Sec. 391. (382.) Real Actions, ten years. Title II., Chap. XIII. Sec. 2178. Mining Claims. — One year's adverse possession of a mining claim, immediately preceding the commencement of an action therefor, by the defendant or those under whom he holds, if pleaded, is a bar to the action for the possession thereof. SUPPLEMENTAIi ACTS. By the Act of Feb. 20, 1893, a person entitled to contest a will, if under legal disability, has one year after its removal to institute such contest. By the Act of Feb. 23, 1895, the statute of limitations does not apply so as to cause the loss of title to public streets, country roads, or other public property, to cities and towns. PEN'NSYLVANIA. Steward's Ptiedon's Digest, 1910, Vol. 2, page 2266. Limitation of Actions. [Note. As these statutes are lengthy and ancient, only their purport is here indicated.] I. — Actions for the Recovery of Real Estate. Sees. 1, 2. Seven Years' Quiet Possession. — Seven years' quiet possession of lands within this province, which were first entered on, upon an equitable right, shall forever give an unquestionable title to the same against all, dur- ing the estate whereof they are or shall be possessed, except in cases of infants, married women, lunatics, and persons not residing within this province or territories, etc.i Sees. 3, 4. Entry Barred in Twenty-one Years. Sec. 7. Six Years' Possession to Validate Prior Sheriff's Deeds. (As amended by the Acts of 1885, No. 196.) Sec. 8. All Persons to be Barred after Forty Years. Sec. iO. Thirty Years' Possession to be Evidence of Title out of Common- wealth — Twenty-one Years, when. Sec. 11. Limitation of Claim for Ground-rent. Sec. 12. Limitation of Claim for Apportionment of Ground-rent. Sec. 13. Persons under Disabilities to bring Suits within Thirty Years. iThis act is declared in 9 Wheat. 319, to have been repealed by the act of 1785, sec. 2, of this act. 1658 Statutes of Limitation. Sec. 16. (14.) Specific Performance: Damages for Noli-performance. Equity of Redemption. Implied or Resultin]^ Trust. Sec. 17. (15.) Not to Run in Favor of an Attomey-at-Law. Sec. 14. (16.) Suits to be. Brought within One Year after Entry. — No entry upon lands shall arrest the running of the statute of limitations, unless an action of ejectment be commenced therefor within one year thereafter; nor shall such entry and action, without a recovery therein, arrest the running of said statute in respect to another ejectment, unless it be brought within a year after the first shall have been nonsuited, arrested, or decided against the plaintiff therein. Sec. 15. (17.) Statute to Run against Remaindermen, etc., unless. III. — Personal Actions. Sec. 28. (18.) Personal Actions. — ^All actions of trespass quaere clausum fregit, a.11 actions of detinue, trover, and replevin for taking away goods and cattle, all actions upon account, and upon the ease, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt, grounded upon any lending or contract, without specialty, all actions of debt for arrearages of rent, except the pro- prietaries' quit-rent, and all actions of trespass, of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after April 25, 1713, shall be commenced and sued within the time and limitation hereafter expressed, and not after; that is to say, the said actions upon the ease, other than for slander, and the said actions for account, and the said actions for trespass, debt, detinue and replevin for goods or cattle, and the said actions of trespass qtiaere clmisum fregit, within siao years next after the cause of such action or suit, and not after. And the said actions of trespass, of assault, menace, battery, wounding, imprisonment, or any of them, within two years next after the cause of such action or suit, and not after. And the said actions upon the case for words, vpithin one year next after the words spoken, and not after. Sec. 39. (19.) Libel. — Extends to all cases of slander and libel, whether spoken, written, or printed. Sec. 3-8. Suits for Negligence against Passenger Railway Companies. — No suit against any passenger railway company (whose route is wholly within the county of Philadelphia) for damages for injuries or death, shall be brought, unless the same shall be within six months from the time the right of action shall accrue. IV. — Action on Official Bonds. Sec. 45. (33.) Bonds of Public OflScers — Seven Years.— Persons entering into bonds or recognizances, as sureties for any public officers, should be ex- onerated from their responsibility within a reasonable term after such officers respectively shall die, resign or be removed from office: Therefore, it shall not be lawful for any person or persons whomsoever to commence and main- tain any suit or suits on any bonds or recognizances which shall hereafter Rhode Island. 1659 be given and entered into by any person or persons, as sureties for any pub- lie officer, from and after tlie expiration of the term of seven years, to be com- puted from the time at which the cause of action shall have accrued; and if any such suit or suits shall be commenced contrary to the intent and meaning of this act, the defendant or defendants respectively shall and may plead the general issue, and give this fact and the special matter in evidence; and if the plaintiflf or plaintiffs be nonsuited, or if a verdict or judgment pass against him or them respectively, the defendant or defendants shall respectively re- cover double costs. v. — Miscellaneous Provisions. Sec. 49. Suspension of Limitation during Non-residence. — In all civil suits and actions in which the cause of action shall have arisen within this State the defendant or defendants in such suit or action, who shall have become non- resident of the State after said cause of action shall have arisen, shall not have the benefit of any statute of this State for the limitation of actions dur- ing the period of such residence without the State. RHODE ISLAISTD. Gek-eeal Laws, 1909, chap. 284. Of the Limitation of Actions. Section 1. Actions of Slander — Injuries to the Person. — Actions for words spoken shall be commenced and sued within one year next after the words spoken, and not after. Actions for injuries to the person shall be commenced and sued within two years next after the cause of action shall accrue, and not after. Sec. 2. Trespass. — ^Actions of trespass, except for injuries to the person, shall be commenced and sued vrithin four years next after the cause of action shall accrue, and not after. Sec. 3. Of Account, Case and Debt, except, eitc, and of Detinue and Re- plevin. — ^AU actions of account, except on such accounts as concern trade or merchandise between merchant and merchant, their factors and servants, all actions of the case, except for words spoken and injuries to the person, all actions of debt founded upon any contract without specialty or brought for arrearages of rents, and all actions of detinue and replevin, shall be com- menced and sued within six years next after the cause of such action shall accrue, and not after. Sec. 4. Of Debt on Specialty and Covenant. — ^All actions of debt other than those in the preceding section specified, and all actions of covenant, shall be commenced and sued within ttoenty years next after the cause of action shall accrue, and not after. Sec. 5. Saving in Favor of Residents, against Absent Defendants. — If any person, against whom there is or shall be cause for any action hereinbefore enumerated in favor of a resident of this State, shall, at the time such cause accrue, be without the limits thereof, or being within the State at the time 1660 Statutes op Limitation. Buoh cause accrues, shall go out of the State :before said action shall be barred by the provisions of this chapter, and shall not have or leave property or es- tate therein that can be attached by process of law, then the person entitled to such action may commence the same within the time before limited, after such person shall return into the State, in such manner that an action may, with reasonable diligence, be commenced against him by the person entitled to the same. Sec. 6. General Savings. — If any person at the time any such actioii shall accrue to him shall be within the age of twenty-one years, or of unsound mind, or imprisoned, or beyond the limits of the United States, such person may bring the -same, within such time as is hereinbefore limited, after such impediment is removed. Sec. 7. If any person liable to an action by another, shall fraudulently, by actual misrepresentation, conceal from him the existence of the cause of such action, said cause of action shall be deemed to accrue against said person so liable therefor, at the time when the person entitled to sue thereon shall first discover its existence. Sec. 8. Time extended by Death of Parties, when. — If any person, for or against whom any of such actions shall accrue, shall die before the time limited for bringing action, or within sixty days after the expiration of said time, and the cause of such action shall survive, such action may be commenced by or against the executor or administrator of the deceased person, as the case may be, at any time within one year after the decease of the person so dying, and not afterwards, if barred by the provisions of this chapter. Sec. 9. Abatement of Action or Arrest of Judgment. — If any action duly commenced within the time limited and allowed therefor in and by this chap- ter, shall be abated or otherwise avoided or defeated by the death of any party thereto, or for any matter, or if, after verdict for the plaintiff, the judgment shall be arrested, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit as afores'aid; and if the cause of action does by law survive, his executor or administrator may, in case of his death, commence said new action within the said one year. Sec. 10. Special Limitations Saved. — The provisions of this chapter shall not apply to any case in which by special provision a different time is limited. SOUTH CAEOLmA. CODE OF LAWS^ 1912. C!ODE OF CiyiL PROOEiDUEE. Pabt II., Title II. Time or Commencing Civil Actions. Chap. II. — Fob the IRecovbet op Real Propeett. Sec. 120. (98.) When State Will Not Sue.— The State will not sue any person for or in respect of any real property, or the issues or profits thereof, by reason of the right or title of the State to the same unless: South Oaeolina. 1661 1. Such right or title shall have accrued within twenty years before any action or other proceeding for the same shall he commenced; or unless 2. The State, or those from whom it claims, shall have received the rents and profits of such real property, or of some part thereof, within the space of twenty years. Sec. 123. (100.) When Action by State ot their Grantees to be Brought within Ten Years. Sec. 133. (101.) (98.) Seizin within Ten Years, when necessary.— 1. No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within ten yea/rs before the commencement of such action. 3. Person Limited to Two Actions for Realty.— The plaintiff in all actions for the recovery of realty is hereby limited to two actions for the same, and no more: Provided, that the costs of the first action be first paid, and the sec- ond action be brought within two years from the rendition of the verdict or judgment in the first action, or from the granting of a nonsuit or discontinu- ance therein. Sec. 134. (103.) (99.) Seizin within Ten Years, when necessary. — No cause of action, or defense to an action, founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in ques- tion within ten years before the committing of the act in respect to which such axition is prosecuted or defense made. Sec. 125. (103.) (100.) Action after Entry. — No entry upon real estate shall be deemed suflScient or valid, as a, claim, unless an action be commenced thereupon within one year after the making of such entry, and within ten years from the time when the right to make such entry descended or accrued. Sec. 136. (104.) (101.) Possession presumed. Sees. 137-131. (105-109.) (102-106.) Adverse Possession defined. Sec. 134. (109.) No action shall be commenced in any case for the recov- ery of real property, or for any interest therein, against a person in posses- sion under claim of title by virtue of a written instrument, unless the person claiming, his ancestor or grantor, was actually in the possession of the same or a part thereof within forty years from the commencement of such action. And the possession of a defendant, sole or connected, pursuant to the provi- sions of this section, shall be deemed valid against the world after the lapse of said period. OHAP. III. ^TlME or OOMMENCING ACTIONS OTHER THAN FOE THE ReCOVEBY OF Real Peopebty. Sec. 135. (112.) (110.) Period of Limitation prescribed. — The periods pre- scribed in section 119 for the commencement of actions other than for the re- covery of real property shall be as follows: 1662 Statutes of Limitation. Sec. 136. (113.) (111.) Within Twenty Years. — 1. An action upon a judg- ment or decree of any court of the United States, or of any State or Terri- tory within the United States. 2. An action upon a bond, or other contract in writing, secured by a mort- gage of real property; an action upon a, sealed instrument other than a. sealed note and personal bond for the payment of money only, whereof the period of limitation shall be the same as prescribed in the following section. Sec. 137. (114.) (112.) Within Six Years. — 1. An action upon a, contract, obligation, or liability, express or implied, excepting those mentioned in sec- tion 136. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon or damage to real property. 4. An action for taking, detaining, or injuring any goods or chattels, in- cluding action for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the per- son or rights of another, not arising on contract, and not hereinafter enumer- ated. 6. An action for relief on the ground of fraud, in cases which, heretofore, were solely cognizable by the Court of Chancery, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. 7. Actions may be brought in any of the courts of this State properly hav- ing jurisdiction thereof on any policies of insurance, either fire or life, whereby any person or property, resident or situate in this State, may be or may have been insured, or for or on account of any loss arising thereunder, within six years from the date of such loss, or from the accrual of the cause of ac- tion under said policy, any clause or condition in the said policies or limita- tions therein contained to the contrary notwithstanding. Sec. 138. (115.) (113.) Within Three Years. — 1. An action against a sher- iff, coroner or constable, upon a liability incurred by the doing of an act in his ofiicial capacity, and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an executio*. But this section shall not apply to an action for an escape. 2. action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the State, except where the statute imposing it prescribes a, difi'erent limitation. Sec. 139. (116.) (114.) Within Two Years.— 1. An action for libel, slander, assault, battery, or false imprisonment. 2. An action upon a statute for a forfeiture or penalty to the State. Sec. 140. (117.) (115.) Within One Year. — An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process. Sec. 141. (118.) (116.) Action upon an Account Current. — In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. South Dakota. 166S Sec. 142. (119.) (117.) Action for Penalties, etc. — An action upon a stat- ute for a penalty or forfeiture given, in whole or in part, to any person who will prosecute for the same must be commenced within one year after the commission of the offense; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter, in ;behalf of the State, by the attorney-general or the solicitor of the circuit where the offense was committed, unless a different limitation be prescribed ' in the statute under which the action is brought. Sec. 143. (120.) (lis.) Actions for other Relief.— An action for relief not hereinbefore provided for must be commenced within ten years after cause of action shall have accrued. See. 145. (121.) (119.) Actions by the State.— The limitations prescribed by this chapter shall apply to actions brought in the name of the State, or for its benefit, in the same manner as to actions by private parties. Chap. IV. — General Provisions as to the Time of Commencinq Actions. Sec. 155. (131.) (129.) Bills, Notes, etc.— This title shall not affect ac- tions to enforce the payment of bills, notes, or other evidences of debt, issued by moneyed corporations, or issued or put in circulation as money. Civil Code, Paett III, Title III, Ohap. XOVI, Aet. 1. Sec. 4072. (2298.) Forcible Entry and Detainer.— They which keep their possessions with force in any lands and tenements whereof they or their an- cestors, or they whose estate they have in such lands and tenements, have continued their possessions in the same by three years or more, shall not be endangered by force of this chapter. SOUTH DAKOTA. COMPILED LAWS CODE OF CIVIL PKOCEDTTEE^ 1910. (See North Dakota, ante, p. 763, both states following the original Da- kota statutes, except as follows) : See. 58. Within Twenty Years. — 1. An action upon a judgment or decree of any court of this State. 2. An action upon a sealed instrument. Sec. 62. This contains only the first two subdivisions of section 7377 (5203) of North Dakota. Sec. 69. Absence. — This is the same as section 7384 (5210) of North Da- kota, except that it omits the words "or remain continuously absent there- from for the space of one year or more." Sec. 74. Injunction. — This is the same as section 7389 (5215) of North Da- kota, except that it omits the words " or other order of a court or judge, or by." 1664 Statutes of Limitation. TENNESSEE. COBE (1896, BY SHAWNOW), PAET III, CHAP. 2. Aet. n. — Limitation of Real Actions. Sec. 4456. Seven Years' Vested Estate, when. — ^Any person having had, by himself or those through whom he claims, seven years' adverse possession of any lands, tenements, or hereditaments granted by this State or the State of North Carolina, holding by conveyance, devise, grant, or other assurance of title purporting to convey an estate in fee, without any claim by action at law or in equity commenced within that time and effectually prosecuted against him, is vested with a good and indefeasible title in fee to the land described in his assurance of title. But no title shall be vested by virtue of such adverse possession, unless such conveyance, devise, grant, or other as- surance of title shall have been recorded in the register's oflBce for the county or counties in which the land lies during the full term of said seven years' adverse possession. Sec. 4457. Seven Years' Neglect Bars Action. — ^And, on the other hand, any person, and those claiming under him, neglecting for the said term of seven years to avail themselves of the benefit of any title, legal or equitable, by action at law or in equity, eflfeotually prosecuted against the person in possession, under recorded assurance of title, as in the foregoing section, are forever barred. Sec. 4458. Suit Must be Brought within Seven Years. — 'No person, or any one claiming under him, shall have any action, either at law or in equity, for any lands, tenements, or hereditaments, but within seven years after the right of action has accrued. Sec. 4459. School Lands. — The provisions of the foregoing sections do not apply to lands, tenements, or hereditaments reserved for the use of schools. Sec. 4460. Twenty Years' Adverse Possession Bars Husband and Wife, when. Sec. 4461. What Possession is not Adverse. — ^Possession is not adverse, within the meaning of this article, as to any person claiming a right or in- terest in the land, when taken and continued under a title bond, mortgage or other instrument acknowledging that right or interest, or when taken and continued in subordination to the right or interest of another. Sees. 4464, 4465. Leins on Realty Barred after Ten Years — Exceptions. Aet. III. — ^liiMiTATroN of Actions othee than ebal. Sec. 4466. Actions to be commenced within the Time limited. — ^All civil actions, other than those for causes embraced in the foregoing article, shall be commenced after the cause of action has accrued, within the periods pre- scribed in this chapter, unless otherwise expressly provided. See. 4467. Property lost at Gaining. — Within nimety days. Tennessee. 1665 Sec. 4468. Slander. — Actions for slanderous words spoken shall be com- menced within siso months after the words are uttered. Sec. 4469. Libel, Personal Injuries, etc. — Actions for libel, for injuries to the person, false imprisonment, malicious prosecution, criminal conversation, seduction, breach of marriage promise, and statute penalties, within one year after cause of action accrued. Sec. 4470. Injuries to Property, etc. — Actions for injuries to personal or real property; actions for the detention or conversion of personal property, within three years from the accruing of the cause of action. Sec. 4471. Against Sureties of Collecting Officer, when Process returned satisfied. — ^Actions against sureties of any collecting oificer, for failing to pay over money collected, when he has made return of an execution or other pro- cess that the money is made or the process satisfied, within three years from the return of the process. Sec. 4472. Use and Occupation, Rent, Surety for Official Delinquencies, etc. — ^Actions for the use and occupation of land and for rent; actions against the sureties of guardians, executors, and administrators, sheriffs, clerks, and other public officers, for nonfeasance, misfeasance, and malfeasance in office; a<;tions on contracts not otherwise expressly provided for, within six years after the cause of action accrued. Sec. 4473. Guardians, Executors, Administrators, Public Officers, on Judg- ments, etc. — ^Actions against guardians, executors, administrators, sheriffs, clerks, and other public officers on their bonds, actions on judgments and decrees of courts of record of this or any other State or government, and all other cases not expressly provided for, within ten years after the cause of action accrued. Sec. 4474. Exception in Favor of Merchants' Accounts. — The limitations herein provided do not apply to such actions as concern the trade of merchan- dise between merchant and merchant, their agents and factors, while the accounts between them are current. Sec. 4475. Mutual Accounts between Individuals. — ^When there are mutual accounts between persons who are not merchants, the time is computed from the true date of the last item, unless the account is liquidated and a balance «truck. Sec. 4476. Note Issued as Money. — The provisions of this chapter do not apply to actions to enforce payment of bills, notes, or other evidences of debt issued or put in circulation as money. Sec. 4477. Time runs from Accrual of Right, not Demand. — When a right exists but a demand is necessary to entitle the party to an action, the limita- tion commences from the time the plaintiff's right to make the demand was completed, and not from the date of the demand. Sec. 4480. Action Barred in another State. — When the statute of limita- tions of another State or government has created a bar to an action upon a cause accruing therein, whilst the party to be charged was a resident in such State or under such government, the bar is equally effectual in this State. Sec. 4481. Against Personal Representative by Resident, Two Years, and l)y Non-resident, Three Years. 105 1&60 Statutes of Limitation. Sec. 4482. Delay upon such Representative's Si>ecial Request not Counted. Sec. 4483. Seven Years' Bar in Favor of Decedent's Estates. — But all ac- tions against the personal representatives of a, decedent for demands against such decedent shall be brought within seven years after his death, notwith- standing any disability existing; otherwise they will be forever barred. Sec. 4013. Suits against Decedent's Estates. — The creditors of deceased per- sons, if they reside within this State, shall within two years, and if without,, shall, within three years, from the qualification of the executor or adminis- trator, exhibit to them their accounts, debts and claims, and make demand, and bring suit for the recovery thereof, or be forever barred in law and equity. Sec. 4013. Suspension through Request of Executor. — ^But if any creditor, after making demand of his debt or claim, delay to bring suit for a definite time, at the special request of the executor or administrator, the time of such delay shall not be counted in said periods of limitation. Sec. 5096. Forcible Entry and Detainer. — The uninterrupted occupation or quiet possession of the premises in controversy by the defendant, for the space- of three entire years together, immediately preceding the commencement of the action, is, if the estate of the defendant has not determined within that time, a bar to any proceeding under this article. TEXAS. m'eACHIN's civil statutes AlfNOTATED^ 1913, VOL. 3. TiTi-E 87. Limitations. Ohap. 1. — Limitation of Actions for Land. Art. 5672. (3340.) Three Years' Possession, when a Bar. — Every suit to be instituted to recover real estate, as against any person in peaceable and adverse possession thereof under title or color of title, sha.ll be instituted within three years next after the cause of action shall have accrued, and not afterwards. Art. 5673. (3341.) "Title" and "Color of Title" defined. Art. 5674. ((3343.) Five Years' Possession, when a Bar. — Every suit to be instituted to recover real estate as against any person having peaceable and adverse possession thereof, cultivating, using, or enjoying the same and pay- ing taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after the cause of action shall have accrued, and not afterward: Provided, that this article shall not apply to any one in possession of land, who, in the absence of this article, would deraign title through a forged deed: Provided, further, that no one claiming under a forged deed, or deed executed under a forged power of attorney, shall be allowed the benefits of this article. Art. 5675. (3343.) Ten Years' Possession, when a Bar — Any person who has a right of action for the recovery of any lands, tenements, or hereditaments against another having peaceable and adverse possession thereof, cultivating^ Texas. 1667 using, or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward. Arts. 5676-5878, 5681. (3344-3346, 3349.) Adverse Possession defined. Art. 5679. (3347.) Possession gives Full Title, when. — ^Whenever in any case the action of a person for the recovery of real estate is barred by any of the provisions of this chapter, the person having such peaceable and ad- verse possession shall be held to have full title, precluding all claims. Art. 5682. (8350.) Possession may be held by Different Persons. — Peace- able and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them. Art. 5683. (3351.) Limitation not to Run against State nor Favor Ad- verse Holder of Road. [As amended' 1887.] — ^As to university and asylum lands, see Acts of 1899, chap. 150. Art. 5684. (3352.) Does not Run against Infants, Married Women, etc. — If a person entitled to commence suit for the recovery of real property, or to make any defense founded on the title thereto, be, at the time such title shall first descend or the adverse possession commence, 1. Under the age of twenty-one years; or, 2. rf unsound mind; or, 3. A person imprisoned, the time during which such disability shall continue shall not be deemed any portion of the time limited for the commencement of such suit, or the making of such defense; and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this chapter: Pro- vided, that limitation shall not begin to run against married women until they arrive at the age of twenty-one years; and, further, that their disability shall continue one year from and after July 29, 1895, and that they shall have thereafter the same time allowed others by the provisions hereof; and, further, that this article shall in no way affect suits then pending, and all such suits shall be tried and disposed of under the law then in force. Chap. 2. Limitation of Personal Actions. Art. 5685. (3353.) Actions to be commenced in One Tear. — 1. Actions for malicious prosecution or for injuries done to the character or reputation of another by libel or slander. 2. Actions for damages for seduction, or breach of promise of marriage. Art. 5686. (3358a.) Survival of such Cause of Action. Art. 5687. (3354.) Actions to be commenced in Two Years. — 1. Actions of trespass for injury done to the estate or the property of another. 2. Actions for detaining the personal property of another, and for convert- ing such personal property to one's own use. 3. Actions for taking or carrying away the goods and chattels of another. 4. Actions for debt where the indebtedness Is not evidenced by a contract in writing. 1668 Statutes of Limitation. 5. Actions upon stated or open accounts, other than such mutual and cur- rent accounts as concern the trade of merchandise between merchant and mer- chant, their factors or agents. In all accounts, except those between merchant and merchant as aforesaid, their factors and agents, the respective times or dates of the delivery of the several articles charged shall be particularly spe- cified, and limitation shall run against each item from the date of such de- livery, unless otherwise specially contracted. 6. Actions for injuries done to the person of another. 7. Actions for injuries done to the person of another where death ensued from such injuries; and the cause of action shall be considered as having accrued at the death of the party injured. Art. 5688. (3356.) What Actions Barred in Four Years.— 1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing. 2. Actions for the penalty or for damages on the penal clause of a bond to convey real estate. 3. Actions by one partner against his copartner for a settlement of the part- nership accounts, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents; and the cause of action shall be considered as having accrued on a, cessation of the dealings in which they were interested together. Art. 5689. (3357.) On Bond of Executor, Administrator, or Guardian. — All suits on the bond of any executor, administrator or guardian shall be commenced and prosecuted within four years next after the death, resigna- tion, removal, or discharge of such executor, administrator, or guardian, and not thereafter. Art. 5690. (3358.) All other Actions. — Every action other than for tlie recovery of real estate, for which no limitation is otherwise prescribed, shall ■be brought within four years next after the right to bring the same shall have accmed, and not afterward. Art. 5691. (3359.) Actions on Foreign Judgments. — Every action upon a judgment or decree rendered in any other State or Territory of the United States, in the District of Columbia, or in any foreign country, shall be Jjarred, if by the laws of such State or country such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there; and whether so barred or not, no action against a person who shall have re- sided in this State during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years be- fore the commencement of such action. Art. 5693. (3360.) Actions for Specific Performance. — Any action for the specific performance of a, contract for the conveyance of real estate shall be commenced within ten years next after the cause of action shall have accrued, and not afterward. Art. 5698. (3363.) On the Action of Forcible Entry, etc. — No action of forcible entry or forcible detainer, as provided for by law, shall be prosecuted at any time after two years from the commencement of the forcible entry or detainer. Utah. 16&9 Art. 5699. (3364.) On Actions to Contest a Will.— Within four years. Chap. 3. — General Promsions. Art. 5706. (3371.) Limitation Must be Pleaded, etc.— The laws of limita- tion of this State shall not be made available to any person in any suit in any of the courts of this State, unless it he specially set forth as a defense in this answer. Art. 7440. (5357.) Action of Trespass to try Title.— In actions of tres- pass to try title, the defense of limitation must be specially pleaded. UTAH. COMPLIED LAWS^ 190Y. Title 88. Code of Civil PEocEDtrRE. Chap. 2. — ^Limitations — In Gbnbeal. 2855. (3129.) (Sec. 175.) When Time commences to Run. — Civil actions can be commenced only within the period prescribed in the three succeeding chapters, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute. Chap. 3. Limitations — Real Peopeett. See. 2859. Suits for Real Property. — No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor, was seized or possessed of the property in question within seven years before the commencement of the action. Sec. 2860. Suits for Rights Growing out of Real Property. — No cause of action, or defense or counterclaim to an action, founded upon the title to real property or to rents or profits out of the same, shall be effectual, unless it appears that the person prosecuting the action, or interposing the defense or counterclaim, or under whose title the action is prosecuted or defense or counterclaim is made, or the ancestor, predecessor, or grantor of such per- son, was seized or possessed of the property in question within seven years before the committing of the act, in respect to which such action is prose- cuted or defense or counterclaim made. Sec. 2861. Presumption of Possession. — In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property shall be presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that the property has been held and possessed adversely to such legal title for seven years before the commencement of the action. Sec. 2862. Effect of Color of Title.— Whenever it shall appear that the oc- cupant, or those under whom he claims, entered into possession of the prop- erty, under claim of title exclusive of other right, founding such claim upon 1670 Statutes ob Limitation. a written instrument, as being a conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property included in such instru- ment, decree, or judgment, or of some part of the property under such claim, for seven yea/rs, the property so included shall be deemed to have been held adversely, except that where the property so included consists of a tract di- vided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. Sees. 2863-^866. Adverse Possession defined. Chap. 4. — Limitations othee than Real Propebty. Sec. 2874. Eight Years. — An action upon a judgment or decree of any court of the United States, or of any State or Territory- within the United States. Sec. 2875. Six Years. — 1. An action for the mesne profits of real property. 2. An action upon any contract, obligation, or liability, founded upon an instrument of writing, except those mentioned in the preceding section. Sec. 2876. Contract not in Writing, Four Years. — ^An action upon a con- tract, obligation, or liability not founded upon an instrument of writing; also on an open account for goods, wares, and merchandise, and for any ar- ticle charged in a store account: Provided, that action in said cases may be commenced at any time within four years after the last charge is made, or the last payment is received. Sec. 3877. Three Years — Fraud, etc. — 1. An action for a liability created by statute of a foreign State or by the statute of this State, other than a penalty or forfeiture under the laws of this State. 2. An action for waste or trespass of real property; provided, that when the waste or trespass is committed by means of underground works upon any mining claim, the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting such waste or trespass. 3. An action for taking, detaining, or injuring personal property, including actions for the specific recovery thereof; provided, that in all cases where the subject of the action is a domestic animal usually included in th^ term " live stock," having upon it at the time of its loss a recorded mark or brand, and when such animal was strayed or stolen from the true owner without his fault, the statute shall not begin to run against an action for the recovery of such animal until the owner has actual knowledge of such facts as would put a reasonable man upon inquiry as to the possession thereof by the de- fendant. 4. An action for relief on the ground of fraud or mistake ; the cause of ac- tion in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. Sec. 2878. Two Years. — 1. An action against a marshal, sheriff, constable, or other officer upon a liability incurred by the doing of an act in his official caipacity, and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution. But this section shall not apply to an action for an escape. TJtah. 16V1 2. An action to recover damages for the death of one caused by the wrong- ful act or neglect of another. Sec. 2879. One Year. — 1. An action upon a statute for a penalty or for- feiture where the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation. 2. An action upon a statute, or upon an undertaking in a criminal action, for a forfeiture or penalty to the State. 3. An action for libel, slander, assault, battery, false imprisonment, or seduction. 4. An action against a sheriff, or other officer, for the escape of a prisoner arrested or imprisoned upon either civil or criminal process. 5. An action against a, municipal corporation for damages or injuries to property caused by a mob or riot. Sec. 28S0. Six Months. — An action against an officer, or officers de facto: — 1. To recover any goods, wares, merchandise, or other property, seized by any such officer in his official capacity, as tax collector, or to recover the price or value of any goods, wares, merchandise, or other personal property so seized, or for damages for the seizure, detention, sale of, or injury to any goods, wares, merchandise, or other personal property seized, or for damages done to any person or property in making any such seizure. 2. For money paid to any such officer under protest, or seized by such officer in his official capacity, as a collector of taxes, and which, it is claimed, ought to be refunded. Sec. 3881. On Claim against County or City, One Year. — Actions on claims against a county, incorporated city or town, which have been rejected by the board of county commissioners, city council, or board of trustees, as the case may be, must be commenced within one year after the first rejection thereof by such board, city council, or board of trustees. Sec. 2882. Open Account. — In an action brought to recover a balance due upon a mutual, open, and cun-ent account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. Sec. 2883. Excepted Cases. — An action for relief not hereinbefore provided for must be commenced within fo^lr years after the cause of action shall have accrued. See. 2887. Bank Deposits. — To actions brought to recover money or other property deposited with any bank, banker, trust company, or savings or loan corporation, association, or society, there is no limitation. Chap. 5. — ^Limitations — Miscexlaneous. Sec. 2899. Limitation Laws of other States. — ^When a cause of action has arisen in another State or Territory, or in a foreign country, and by the laws thereof an action thereon cannot there be maintained against a person by rea- son of the lapse of time, an action thereon shall not be maintained against him in this State, except in favor of one who has been a citizen of this State, and who has held the cause of action from the time it accrued. 1672 Statutes of Limitation. VEEMONT. PtTBLIC statutes 1906, TITLE 12, PABT 1. Chap. 78. — Limitation of Time Within Which Actions Can Be Commenced. Sec. 1544. (1193.) Actions to Recover Lands. — No action for the recovery of lands, or the possession thereof, shall be maintained, unless commenced within fifteen years after the cause of action first accrues to the plaintiff, or those under whom he claims. Sec. 1545. (1194.) Entry into Houses or Lands. — No person having right or title of entry into houses or lands, shall enter after fifteen years after such right of entry accrues. Sec. 1546. (1195.) Actions on a Covenant of Seisin. — Actions of covenant, brought on a covenant of seisin in a deed of conveyance of land, shall be brought within fifteen years after the cause of action accrues, and not after. Sec. 1547. (1196.) On Judgments and Specialties. — ^Actions of debt or scire facias on judgment shall be brought within eight years next after the rendition of such judgment, and actions of debt on specialties within eight years after the cause of action accrues, and not after. See. 1548. (1197.) On Covenants, unless of Warranty or Seisin. — Actions of covenant, other than the covenants of warranty and seisin, contained in deeds of lands, shall be brought within eight years after the cause of action accrues, and not after. Sec. 1549. (1198.) On a Covenant of Warranty. — ^Actions of covenant, brought on a covenant of warranty in a deed of land, shall be brought within eight years after a final decision against the title of the covenantor in such deed. Sec. 1550. (1199.) On Simple Contracts, Foreign Judgments, and on the Case. — The following actions shall be commenced within six years after the cause of action accrues, and not after: Actions of debt founded upon a contract, obligation, or liability, not upder seal, or npon the judgment of a court, excepting such as are brought upon the judgment or decree of a court of record of the United States, or of this or some other State. Actions of debt for rent. Actions of account, assumpsit, or on the case, founded on contract or lia- bility, express or implied. Actions of trespass upon land. Actions of replevin, and other actions for taking, detaining or injuring goods or chattels. Other actions on the case, except actions for slanderous words and for libels. Sec. 1552. (1201.) On Witnessed Notes. — The foregoing provisions shall not apply to an action brought on a promissory note signed in the presence of an attesting witness; but such action shall be commenced within fourteen yea/rs after the cause of action accrues, and not after. VeEMONT VlEGINIA. 16Y3 Sec. 1554. (1202.) On Evidences of Debt Issued by Moneyed Corporations. — The provisions of this chapter shall not apply to suits brought to enforce payment on bills, notes, or other evidences of debt issued by moneyed cor- porations. Sec. 1555. (1203.) Demands Alleged in Set-off.— The provisions of this chapter shall apply to debts and contracts alleged by way of set-off, and the time of limitation of such debts or contracts shall be computed as if an action had been commenced thereon at the time of the commencement of the plain- tiff's action. ' Sec. 1556. (1204.) Action against Sheriffs for Deputies' Misfeasance. — ^Ac- tions against sheriffs, for the misconduct or negligence of their deputies, shall be commenced within four years after the cause of action accrues, and not after. See. 1557. (1205.) Assault and Battery — False Imprisonment. — ^Actions for assault and battery, and for false imprisonment, shall be commenced within three years after the cause of action accrues, and not after. See. 1558. (1206.) Slanderous Wotds and Libels. — ^Actions for slanderous words, and for libels, shall be commenced within two years after the cause of action accrues, and not after. Sec. 1559. (1207.) Actions to recover money paid, under protest, for taxes, shall be. commenced within one year after the cause of action accrues, and not after. By section 2840 (3452) an action by the personal representative to Recover for Death resulting from a wrongful act, neglect, or default of a person or corporation, etc., must be commenced within two yea/rs from the decease. SUPPUEMENTAO:, ACTS. By the Act of 1896, chap. 30, the above chapter is not to apply to actions against school districts during a vacancy in the office of clerk and prudential committee. Sec. 1553. The Act of 1900, chap. 34, prescribes the time for enforcing the liability of stockholders in foreign corporations. YIRGmiA. POLLAEd's AITWOTATED CODE, 1904, TITLE 42, CHAP. 139. LiiMirATioN OF Suits. Sec. 2915. Limitation of Entry. — ^No person shall make an entry on, or bring an action to recover, any land lying east of the Alleghany Mountains, but vpithin fifteen years, or any land lying west of the Alleghany Mountains, but within ten years, next after the time at which the right to make such entry or bring such action shall have first accrued to himself or to some person through whom he claims. For the purposes of this section, the county of 1674 Statutes op Limitation. Carroll shall be held and considered as lying wholly west of the Alleghany Mountains. Sec. 2916. Right not Saved by Claim. — No continual or other claim upon or near any land shall preserve any right of making an entry or of bringing ■an action. Sec. 2919. Period of Civil War excluded. {Amended by the Act of 1888, chap. 295.) Sec. 2930. Limitation of Personal Actions generally. — Every action to re- cover money which is founded upon an award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have first accrued, that is to say: if the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator, guardian, curator, committee, sheriflF or sergeant, deputy sheriflF or sergeant, clerk or deputy clerk, or any other fiduciary or public oflicer, or upon any other contract by writing under seal, within ten yearrs; if it be upon an award, or be upon a contract by writ- ing, signed by the party to be charged thereby, or by his agent, but not under seal, within five, years; if it be upon any oral contract, express or implied, for articles charged in a store account, although such articles be sold on a written order, within two years; and if it be upon any other contract, within three years, unless it be an action by one partner against his copartner for a settlement of the partnership accounts, or upon accounts concerning the trade of merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from a cessation of the dealings in which they are interested together, but not after; provided, that the right of action against the estate of any person hereafter dying, on any such award or contract, which shall have accrued at the time of his death, or the right to prove any such claim against his estate in any suit or proceeding, shall not in any case continue longer than five years from the qualification of his per- sonal representative, or if the right of action shall not have accrued at the time of the decedent's death, it shall not continue longer than five years after the same shall have so accrued. Sec. 2923. Effect of Promise of Personal Representative or Joint Contrac- tor. — TSo acknowledgment or promise by any personal representative of a de- cedent, or by one of two or more joint contractors, shall charge the estate of such decedent, or charge any other of such contractors, in any case in which but for such acknowledgment or promise the decedent's estate or another con- tractor could have been protected under section 2920. Sec. 2934. Effect on Right of Action of Devise for Payment of Debts. — No provision in the will of any testator devising his real estate, or any part thereof, subject to the payment of his debts, or charging the same therewith, shall prevent this chapter from operating against such debts, unless it plainly appear to be the testator's intent that it shall not so operate. Sec. 2925. Limitation of Actions, etc., on Recognizances, Ten Years. Sec. 2937. Of Actions not before Specified. — Every personal action for Washington. 1675 ■which no limitation is otherwise prescribed shall be brought within five years next after the right to bring the same shall have accrued, if it be for a mat- ter of such nature that in case a party die it can be brought by or against his representative; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued. Sec. 2938. Actions on Judgments, etc., of another State. — Every action upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such State or country such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there; and, whether so barred or not, no action against a person who shall have resided in this State during the ten years next preceding such action shall be brought upon any such judgment or decree, rendered more than ten years before the commencement of such action. Sec. 2929. Suits to Avoid Voluntary Deeds, etc., and to Repeal Grants, Five Years. Sec. 3933. Saving to Plaintiff where Suing was Prevented by Defendant. {Amended, by the Act of 1898, chap. 404.) Sec. 3934. Further Time given when Suit Abates. (Amended by the Act of 1898, chap. 226.) Sec. 2935. Mortgages, etc., by Natural Person. {Amended hy the Act of 1898, chap. 487.) Chap. 123, Sec. 3716, limits an Action for Forcible Entry and Detainer within three years after such forcible or unlawful entry, or such unlawful detainer. Chap. 137, Sec. 2790, limits a Distress for Rent within five years from the time it becomes due, and not afterwards, whether the lease be ended or not. WASHIJSTGTOISr. CODES AND STATUTES (bY EEMINGTON & EALLINGEE^ 1910). Codes of PBocEa>uRB, Tuxe II, CSap. Ill — [Limitation of Actions. See. 155. (4796.) Limitations prescribed. — ^Actions can only be com- menced within the period herein prescribed after the cause of action shall have accrued, except when in special cases a different limitation is prescribed by statute; but the objection that the action was not commenced within the time limited can only be taken by answer or demurrer; Sec. 156. (4797.) Within Ten Years.— Actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, ■predecessor, or grantor, was seized or possessed of the premises in question within ten years before the commencement of the action. Sec. 157. (4798.) Within Six Years. — 1. An action upon a judgment or decree of any court of the United States, or of any State or Territory within the United States. 1676 Statutes of Limitation. 2. An action upon a contract in writing, or liability express or implied arising out of a, written agreement. 3. An action for the rents and profits or for the use and occupation of real estate. Sec. 158. (4799.) Within Five Years. — ^No action for the recovery of any real estate sold by an executor or administrator under the laws of this State, or the laws of the Territory of Washington, shall be maintained by any heir or other person claiming under the deceased, unless it is commenced within five years next after the sale, and no action for any estate sold by a guardian shall be maintained by the ward, or by any person claiming under him, unless commenced within five years next after the termination of the guardianship, exceipt that minors and other persons under legal disability to sue at the time when the right of action first accrued may commence such action at any time within three years after the removal of the disability. Sec. 159. (4800.) Within Three Years. — 1. An action for waste or trespass upon real property. 2. An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any other injury to the per- son or rights of another not hereinafter enumerated; 3. An action upon a contract or liability, exipress or implied, which is not in writing, and does not arise out of any written instrument; 4. An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud; 5. An action against a sherifi', coroner, or constable upon a liability incurred by the doing of an act in his official capacity and by virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution ; but this subdivision shall not apply to action for an escape ; 6. An action upon a statute for penalty or forfeiture, where an action is given to the party aggrieved, or to such party and the State, except when the statute imposing it prescribed a different penalty [limitation] ; 7. An action for seduction and breach of promise of marriage. Sec. 160. (4801.) Within Two Years. — 1. An action for libel, slander, as- sault, assault and battery, and false imprisonment. 2. An action upon a statute for a forfeiture or penalty to the State. See. 161. (4802.) Within One Year. — 1. An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process ; 2. An action by an heir, legatee, creditor, or other party interested, against an executor or administrator, for alleged misfeasance, malfeasance, or misman- agement of the estate within one year from the time of final settlement, or the time such alleged misconduct was discovered. Sec. 163. (4803.) Special Provisions for Action on Penalty. — An action upon a statute for a penalty given in whole or in part to the person who may prosecute for the same shall be commenced within three years [one yearl after the commission of the offense; and if the action be not commenced within West Virginia. 1677 one yea/r by a private party, it may be commenced within two years after the commission of the offense in behalf of the State by the prosecuting attorney of the county where said offense was committed. See. 164. (4804.) Within Three Months.— 1. An appeal from an order of a board of county commissioners, or upon a. claim registered by said board; 2. Upon claims against an estate, rejected by an executor or administrator within three months after the rejection. Sec. 165. (4805.) Actions not before Specified. — ^An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued. Sec. 166. (4806.) Actions on Mutual Open Accounts. — ^In an action brought to recover a balance due upon a mutual, open, and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the ac- count on either side; but whenever a period of more thah one year shall have elapsed between any of a series of items or demands, they are not to be deemed such an account. See. 178. (4818.) Foreign Statutes, How Applied.— Where the cause of action has arisen in another State, Territory, or country between nonresidents of this State, and by the laws of the State, Territory, or country where the action arose, an action cannot be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this State. SUPHLEMENmAL ACTS. Sec. 459. (5148.) The Act of 1897, chap. 39, limits Judgment liens to six years. WEST VIEGINIA. Hogg's code^ 1913, chap. 104. Limitation of Suits. Sec. 4414. (1.) Entry on or Action for land. — No person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims. Sec. 4415. (2.) Continual Claim. — 'So continual or other claim, upon or near any land, shall preserve any right of making an entry or bringing an action. See. 4419. (6.) Personal Actions — Limitation of Personal Actions. — Every action to recover money, which is founded upon an award, or in any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the same shall have accrued, that is to say: If the case be upon an indemnifying bond taken under any statute, or upon a bond of an executor, administrator, guardian, curator, com- 1678 Statutes of Limitation. mittee, slierifiF or deputy sheriff, clerk or deputy clerk, or any other fiduciary or public officer, within ten years; if it be upon any other contract by writ- ing under seal, executed before the first day of April, 1869, within twenty years; but if executed on or after that day, within ten years; if it be upon an award, or upon a contract by writing, signed by the party to be charged thereby, or by his agent, but not under seal, within ten years; and if it be upon any other contract, within five years, unless it be an action by one partner against his copartner for a settlement of the partnership accounts. Or upon accounts concerning the trade or merchandise between merchant and merchant, their factors or servants, where the action of account would lie, in either of which cases the action may be brought until the expiration of five years from' a cessation of the dealings in which they are interested to- gether, but not after. {Ais amended by the Act of 1895, ch. 2.) Sec. 4430. (7.) Bonds of Fiduciaries. Sec. 4424. (11.) Recognizances.-^Every action or scire facias upon a recognizance shall, if it be not a recognizance of bail, be commenced within ten years next after the right to bring the same shall have first accrued, and if it be a recognizance of bail, within three years after the right to bring the same shall have first accrued. Sec. 4435. (13.) Other Actions. — Every personal action for which no limi- tation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his repre- sentative; and if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued. Sec. 4436. (13.) Fo-reign Judgment. — Every action or suit upon a judg- ment or decree, rendered in any other 'State or country, shall be barred, if by the laws of such State or country such action would there be barred, and the judgment or decree be incaipable of being otherwise enforced there. And whether so barred or not, no action against a person who shall have resided in this State, during the ten years next preceding such action, shall be brought upon any such judgment or decree, rendered more than ten years before the commencement of such action. Sec. 4437. (14.) Suits to Avoid Gifts. — No gift, conveyance, assignment, transfer, or charge, which is not on consideration deemed valuable in law, ' shall be avoided, either in whole or in part, for that cause only, unless, within five years after it is made, suit be brought for that purpose, or the subject thereof, or some part of it, be distrained or levied upon by or at the suit of a creditor, as to whom such gift, conveyance, assignment, transfer, or charge is declared to be void by the second section of the seventy-fourth chapter of this Code. Sec. 4438. (15.) Repeal of Grants. — ^A bill in equity to repeal, in whole or in part, any grant of land by this State or of the State of Virginia, shall be brought within ten years next after the date of such grant, and not after. Sec. 4431. (18.) Prosecution prevented — Lex Loci. — ^Where any such right as is mentioned in this chapter shall accrue against a person who had before Wisconsin. 1679 resided in this State, if such person shall, by departing without the same, or by absconding or concealing himself, or by any other indirect ways or means, obstruct the prosecution of such right, or if such right has ibeen or shall be hereafter obstructed by war, insurrection, or rebellion, the time that such obstruction may have continued shall not be computed as any part of the time within which the said right might or ought to have been prosecuted. But if another person be jointly or severally liable with the person so ob- structing the prosecution of such right, and no such obstruction exists as to him, the exception contaifled in this section as to the person so absconding shall not apply to him in any action or suit brought against him to enforce such liability. And upon a contract which was made and was to be per- formed in another State or country, by a person who then resided therein, no action shall be maintained, after the right of action thereon is barred by the laws of said State or country. 1513, Chap. 37, Sec. (5), limits a Suit against the State to f/ve years from the time the claim might have been presented or asserted; but in cases of legal disability, to tvx) years after the removal thereof. 3765, Chap. 50, Sec. (311), limits an Action for Forcible Entry and Detainer to two yea/rs after the cause of action accrues. 4136, Chap. 93, Sec. (10), limits a Distress for Rent "within one year after the time it becomes due, whether the lease be ended or not." By Acts of 1873-3, Chap. 61, Sec. 1 (Comp. 1891, p. 1045), an action to recover possession of lease of Oil and Mineral Lands or the profits, against a lessee in continuous possession, expending in good faith, etc., is limited to three years. WISCONSIN STATUTES, 1913. CHAP. 177 (kTASH AND BELITZ, EEVISEEs). Of Limitations of Time fob Commencement of Actions and Peooeedings. Sec. 4307. Relating to Real Property. — No action for the recovery of real property, or the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action. Sec. 4208. Defence not to be made unless seisin within Twenty Years. — ^No defense or counterclaim, founded upon the title to real property, or to rents or services out of the same, shall be effectual, unless the person making it, or under whose title it is made, or his ancestor, predecessor or grantor, was seized or possessed of the premises in question within twenty years before the committing of the act with respect to which it is made. Sec. 4209. — Entry not valid, unless. — ^No entry upon real estate shall be deemed sufficient or valid, as a claim, unless an action be commenced there- upon within one year after the making of such entry and within twenty yea/rs from the time when the right to make such entry descended or accrued; and 1680 Statutes ob Limitation. when held adversely under the provisions of section 4212, within ten years from the time when such adverse possession began. Sec. 4210. Possession presumed, when. — ^In every action to recover real property, or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by another person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for ten years under the provisions of the next section, or twenty years under the provisions of section 4213, before the commencement of such action. Sec. 4211-4315. Adverse Possession. See. 4219. The following actions must be commenced within the periods respectively hereinafter prescribed, after the cause of action has accrued: Sec. 4230. Within Twenty Years. — 1. An action upon a judgment or de- cree of any court of record of this State or of the United States sitting within this State. 2. An action upon a sealed instrument when the cause of action accrues within this State, except those mentioned in sections 984, 3968, and 4222. Sec. 4321. Within Ten Years. — 1. An action upon a judgment or decree of any court of record of any other State or Territory of the United States or of any court of the United States sitting without this State. 2. An action upon a sealed instrument when the cause of action accrued, without this State, except those mentioned in the next section. 3. An action for the recovery of damages for flowing lands, when such lands have been flowed by reason of the construction or maintenance of any mill- dam. 4. An action which, on and before February 28, 1857, was cognizable by the Court of Chancery, when no other limitation is prescribed in this chapter. 5. An action for the recovery of damages for flowing lands when such lands shall have been flowed by reason of the construction or maintenance of any flooding dam or other dams constructed, used, or maintained for the pur- pose of facilitating the driving or handling of saw logs on the Chippewa, Menomonee, or Eau Claire rivers or any tributary of either of theija, pro- vided that in cases where the ten years have already expired, the parties shall have six months from and after the passage and publication hereof within which an action may be brought. See. 4232. Within Six Years. — 1. An action upon a judgment of a court not of record. 2. An action upon any bond, coupon, interest- warrant, or other contract for the payment of money, whether sealed or otherwise, made or issued by any town, county, city, village, or school district in this State. 3. An action upon any other contract, obligation, or liability, express or implied, except those mentioned in the last two preceding sections. 4. An action upon a liability created by statute, other than a. penalty or for- feiture, when a different limitation is not prescribed by law. 5. An action to recover damages for an injury to property, real or personal. Wisconsin. 1681 or for an injury to the person, character or rights of another, not ari3ing on contract, except in case where a different period i3 expressly prescribed (also as to foreign limitation, and notice within two years of the injury).^ 6. An action to recover personal property or damages for the wrongful tak- ing or detention thereof. 7. An action for relief on the ground of fraud, in a case which was, on and before February 28, 1857, solely cognizable by the Court of Chancery. The cause of action in such case is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. Sec. 4223. Within Three Years.— An action against a sheriff, coroner, town clerk or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office or by the omission of an official duty, including the non-payment of money collected upon execution. But this section shall not apply to an action for an escape. Sec. 4224. — Within Two Years. — 1. An action upon a statute penalty or for- feiture when the action is given to the party prosecuting therefor and the State, or to the State alone, except when the statute imposing it provides a different limitation. 2. An action to recover damages for libel, slander, assault, battery, or false imprisonment. 3. An action brought by the personal representatives of a deceased person to recover damages, when the death of such person was caused by the wrong- ful act, neglect, or default of another. 4. An action to recover a forfeiture or penalty imposed by any by-law, ordi- nance or regulation of any town, county, city or village or of any corporation organized under the laws of this State, when no other limitation is prescribed by law. Sec. 4225. Within One Year. — An aettion against a sheriff or other officer, for the escape of >■ prisoner arrested or imprisoned on civil process. Sec. 4226. Accounts. — In actions brought to recover the balance due upon a mutual and open account current the cause of action shall be deemed to have accrued at the time of the last item proved in such account. Sec. 4227. Other Personal Actions, within Ten Years. — All personal action3 on any contract not limited by this chapter, or any other law of this State, shall be brought within ten years after the accruing of the cause of action. Sec. 4228. Statute applied to Defences, etc. — ^A cause of action upon which an action cannot be maintained, as prescribed in this chapter, cELjinot be effect- ually interposed as a defense, counterclaim, or set-off. Sec. 4250. Where Answer or Counterclaim is interposed and Suit is dis- missed or discontinued. — When a defendant in an action has interposed an answer, as a defense, set-off or counterclaim upon which he would be entitled to rely in such action, the remedy upon which, at the time of the commence- ment of such action, was not barred by law, and such complaint is dismissed or the action is discontinued, the time which intervened between the com- mencement and the termination of such action shall not be deemed a part of the time limited for the commencement of an action by the defendant to 106 1682 Statutes op Limitation. recover for the cause of action so interposed as a defense, set-off or counter- claim. Sec. 4251. Time extended when. — There being no person in existence who is authorized to bring, an action thereon at the time a cause of action accrues, shall not extend the time within which, according to the provisions of this chapter, an action can be commenced upon such cause of action, to more than double the period otherwise prescribed by law. WYOMING. COMPILED statutes, 1910 (mULLEIST). CIVIL PEOCEDUEE CODE. Ohap. 290. Tvme of commencing Actions. Aet. 1. Actions in General — Abatement. Sec. 4390. (3447.) Causes of Action that survive. — In addition to the causes of action which survive at common law, causes of action for mesne profits or for an injury to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same. Sec. 4291. (3448.) Actions for causing Death which survive. — Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in re- spect thereof; then, and in every such case, the person who, or the corpora- tion which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter. Asm. 2. Actions concerning Real Property. Sec. 4295. (3451.) Recovery of Lands, etc.. Ten Years. — ^An action for the recovery of the title or possession of lands, tenements or hereditaments, can only be brought within ten years after the cause of such action accrues. Sec. 4296. (3452.) Saving to Persons under Disability. — -Any person en- titled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within ten years after the disability is removed. Art. 3. Other Actions. Sec. 4297. (3453.) Civil Actions. — Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action accrues. Wyoming — Ejstglish S'itatutes of Limitation. 1683 Sec. 4398. (3454.) Five Years.— An action upon a specialty or any agree- ment, contract or promise in writing, and on all foreign claims, judgments or contracts, express or implied, contracted or incurred before the debtor be- comes a resident of this State, action shall be commenced within two years after the debtor shall have established his residence in this State. Sec. 4399. (3455.) Eight Years. — An action upon a contract not in writ- ing, either express or implied; an action upon a liability created by statute other than a forfeiture or penalty. Sec. 4300. (3456.) Four Years. — An action for trespass upon real prop- erty; an action for the recovery of personal property, or for taking, detain- ing or injuring the same, but in an action for the wrongful taking of per- sonal [property the cause of action shall not be deemed to have accrued until the wrongdoer is discovered; an action for an injury to the rights of the plaintiff not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud; but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud. Sec. 4301. (3457.) One Year. — An action for liable, slander, assault, bat- tery, malicious prosecution or false imprisonment; an action upon a statute for a penalty or forfeiture; but where a different limitation is prescribed in the statute, by which the remedy is given, the action may be brought within the period so limited. See. 4303. (3458.) Ten Years. — An action upon the official bond or un- dertaning of an officer, assignee, trustee, executor, administrator, or guardian, or upon a bond or undertaking given in pursuance of a statute can only be brought within ten years after the cause of action accrues; but this section shall be subject to the qualification in section 4294 (3450). Sec. 4303. (3459.) General Provision. — ^An action for relief, not hereinbe- fore provided for, can only be brought within ten years after the cause of action accrues. Sec. 4308. (3464.) Lex Loci. — If by the laws of the State or country where the cause of action arose the action is barred, it is also barred in this State. ENGLISH STATUTES OF LIMITATION (Vol. 6 of 'Ohitty's Statutes, Lely's edition (1895), with notes of decisions, should be consulted on these statutes.) i The Act 31 Eliz., ch. 5, limited suits upon penal statutes to two years for actions by the crown, and one year by other parties. The Limitation Act, 1623 (21 James I., ch. 16.) Sec. 3. All actions of trespass quare clausum fregit, all actions of trespass, detinue, action, sv/r trover, and replevin for taking away of goods and cattle, all actions of account, and upon the case, other than such accounts as concern 1684 Statutes of Limitation. the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty; all actions of debt for arrearages of rent, and all actions of assault, menace, battery, wounding, and imprisonment, or any of them, which shall be sued or brought at any time after the end of this present session of Parlia- ment, shall be commenced and sued within the time and limitation hereafter expressed, and not after; (that is to say) (2) the said actions upon the case (other than for slander) , and the said actions for account, and the said actions for trespass, debt, detinue, and replevin for goods or cattle, and the said action of trespass quare clausum fregit, within three years next after the end of this present session of Parliament, or within six years next after the cause of such actions or suit, and not after; (3) and the said actions of trespass, of assault, battery, wounding, imprisonment, or any of them, within one year next after the end of this present session of Parliament, or within four years next after the cause of such actions or suit, and not after; (4) and the said action upon the case for words, within one year after the end of this present session of Parliament, or within two years next after the words spoken, and not after. 4 Anne, c. 16 (Seamen's Wages) §§'17, 18, and 19 {A. D. 1705). 17. All suits and actions in the Court of Admiralty for seamen's wages, which shall become due after the said first day of Trinity term, shall be com- menced and sued within six years next after the cause of such suits or actions shall accrue, and not afterwards. 18. Provided, nevertheless, and be it enacted, that if any person or persona who is, or shall be, entitled to any such suit or action for seamen's wages be, or shall be, at the time of any such cause of suit of action, accrued, fallen, or come within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or beyond the seas, that then such person or persons shall be set at liberty to bring the same actions, so as they take the same within six years next after their coming to, or being of full age, discovert, of sane memory, at large, and returned from beyond the seas. 19. If any person or persons against whom there is or shall be any such cause of suit or action for seamen's wages, or against whom there shall be any cause of action of trespass, detinue, actions for trover or replevin, for taking away goods or cattle, or of action of account, or upon the case, or of debt grounded upon any lending or contract without specialty, of debt for arrear- ages of rent, or assault, menace, battery, wounding, and imprisonment, or any of them, be, or shall be, at the time of any such cause of suit or action given or accrued, fallen, or come beyond the seas, that then such person or persons, who is, or shall be entitled to any such suit or action, shall be at liberty to bring the said actions against such person and persons after their return from beyond the seas, so as they take the same after their return from beyond the seas within such times as are respectively limited for the bringing of the said actions before by this act, and by the said other act made in the one-and-twentieth year of the reign of King James the First. English Statutes of Limitation. 1685 9 Geo. III., c. 161 {"Nullum Tempus Act," A. D. 1768). By the first section of this act the crown is disabled to sue or implead any person for any manors, lands, tenements, rents, tithes, or hereditaments where the right had not, or shall not first accrue and grow within sixty years next before commencing suit, unless the same shall have been duly in charge, or stood insuper of record, or been answered to the crown. The second section provides for cases where the rent and profits of such hereditaments shall be duly in charge to the crown. The third and fourth sections provide for and exempt from the operation of the act reversions in the crown and grantees of the crown. The fifth and sixth sections provide for payment of certain ser- vices to the crown, and contain a general reservation of the rights of others than the crown. The seventh section secures to the crown such fee farm or other rents as had been paid within a limited time. The eighth and ninth sec- tions contain temporary provisions. The tenth section declares what shall and shall not be deemed a putting in charge, standing insuper or taking or answering by or to the crown within the meaning of the first section. 9 Geo. IV., c. 14 {"Lord Tenterden's Act"), §§ 1, 2, 3; 4, and 82 {May 9, 1828). 1. Whereas by an act passed in England in the twenty-first year of the reign of King James the First, it was among other things enacted that all actions of account and upon the case other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, all actions of debt grounded upon any lending or contract without specialty, and all actions of debt for arrearages of rent, should be commenced within three years after the then present session of Parliament, or witliin six years next after the cause of such action or suit and not after; and whereas, a similar enactment is contained in an act passed in Ireland in the tenth year of the reign of King Charles the First; and whereas, various questions have arisen in actions founded on simple contract as to the proof and efi'ect of acknowl- edgments and promises offered in evidence for the purpose of talting cases out of the operation of the said enactment; and it is expedient to prevent such questions and to make provision for giving effect to the said enactments and to the intention thereof: Be it therefore enacted, by the King's most excel- lent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons in the present Parliament assembled, and by the au- thority of the same, that in actions of debt or upon the case grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the said enactments or e'ther them, or to deprive any party of the benefit thereof unless such acknowledgment or promise shall be made, or contained by or in some writing to be signed by the party charge- 1 Extended to the Duchy of Cornwall by 23 & 24 Vict. c. 53, infra, p. 650; and see 24 & 25 Vict. c. 62, infra, p. 650. 2 See 19 & 20 Viet. c. 97, § 13, infra, p. 649. 1686 Statutes of LniiTATioN. able thereby; and that where there shall be two or more joint contractors or executors, or administrators of any contractor, no such joint contractor, execu- tor, or administrator shall lose the benefit of the said enactments or either of them, so as to be chargeable in respect or by reason only of any written ac- knowledgment or promise made and signed by any other or others of them : Pro- vided always, that nothing herein contained shall alter or take away or lessen the effect of any payment of any principal or interest made by any person what- soever: Provided also, that in actions to be commenced against two or more such joint contractors or executors or administrators, if it shall appear at the trial or otherwise that the plaintiff, though barred by either of the said recited acts or this act, as to one or more of such joint contractors or execu- tors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants by virtue of a new acknowledgment or promise, or otherwise judgment may be given and costs allowed for the plain- tiff as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff. 2. If any defendant or defendants, in any action on any simple contract, shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued and issue be joined on such plea, and it shall appear at the trial that the action could not by reason of the said recited acts, or this act, or either of them, be maintained against the other person or persons named in such plea or any of them, the issue joined on such plea shall be found against the party pleading the same. 3. No indorsement or memorandum of any payment written or made, after the time appointed for this act to take effect, upon any promissory note, bill of exchange or other writing, by or on the behalf of the party to whom such ■ payment shall be made, shall be deemed sufficient proof of such payment so as to take the case out of the operation of either of the said statutes. 4. The said recited acts and this act shall be deemed and taken to apply to the case of any debt or simple contract alleged by way of set-off on the part of any defendant either by plea, notice, or otherwise. 8. No memorandum or other writing made necessary by this act shall be deemed to be an agreement within the meaning of any statute relating to' the duties of stamps. 9. Nothing in this act contained shall extend to Scotland. 3 & 4 Wm. IV., c. 271 ("Real Property, Limitation Act, 1833"). This Act, which is lengthy and important chiefly in England, may be thus outlined : Sec. 1. Interpretation. Sec. 2. (Repealed by 37 and 38 Vict., c. 57 §§ 1, 9.) See. 3. When right of action for rent, etc., accrues. Sec. 4. Remaindermen. Sec. 5. (Repealed by 37 and 38 Vict., c. 57, §§ 2, 9.) Sec. 6. Administrator. < 1 See 37 & 38 Vict. c. 57, §§ 1, 9, infra, p. ^^^. English Statutes of Limitation. I&ST See. 7. Tenant at will. Sec. 8. Tenant from year to year. Sec. 9. Tenant by lease in writing. Sec. 10. Mere entry is not possession. See. 11. No right by continual claim. Sec. 12. Oopareeners. Sec. 13. Brother, etc., of heir. Sec. 14. Written acknowledgment equivalent to possession. iSec. 15. (Spent.) Sees. 16, 17. (Repealed by Heal Property Limitation Act, 1874, §§ 3-5, 9.) Sec. 18. Succession of disabilities. Sec. 19. (What is deemed "beyond seas.") Sees. 20-22. Future estates and tenancies in tail. Sec. 23. (Repealed by Real Property Limitation Act, 1874, §§ 6, 9.) See. 24. Suits in equity. Sec. 25. Express trusts. Sees. 26, 27. Concealed fraud to prevent time from running. Sec. 28. (Repealed by Real Property Limitation Act, 1874, §§ 7, 9.) Sec. 29. Limit of action for land, etc., by ecclesiastical corporation sale, two incumbencies and six years, or sixty years. Sec. 30. For advowson, three incumbencies, or sixty years. Sees. 31, 32. Incumbencies and advowsons. Sec. 33. For advowsons, one hundred years. Sec. 34. Extinction of right at end of period for action. See. 35. [Receipt of rent deemed receipt of profits. Sec. 36. (Abolition of real and mixed actions, except ejectment.) Sees. 37, 38. (Repealed by Stat. Law Rev. Act, 1874, § 1. Sec. 39. No descent cast, discontinuance, or warranty which may happen or be made (after Dec. 31, 1833), shall toll or defeat any right of entry or action for the recovery of land. Sec. 40. (Repealed by Real Property Limitation Act, 1874, §§ 8, 9.) Sec. 41. Limit of actions for arrears of dower, six years. Sec. 42. For arrears of rent, or legacy, six years. See. 44. This Act does not extend to Scotland. 3 & 4 Wm. IV., c. 421 (Speoialties), §§ 3-7 {August 14, 1833). This Act, which was extended to Ireland by 6 and 7 Vict., c. 54, may be Thus outlined: Sec. 3. Limit for action for rent, on covenant, or on bond or other specialty, twenty years; on award, where submission is not by penalty, or for fine or copyright, six years; for action on statute by party aggrieved, two years. Sec. 4. Party under disability. Sec. 5. Acknowledgment in writing or part payment. Sec. 6. Judgment reversed. 1 Extended to Ireland by 6 & 7 Vict. c. 54. 1688 Statutes of Limitation. 7. Wm. IV. & 1 Vict., c. 28 (Mortgages, July 3, IS37). It shall and may be lawful for any person entitled to, or claiming under any mortgage of land within the definition contained in the first section of the said act (3 and 4 Wm. IV., e. 27), to make an entry, or bring an action at law or suit in equity to recover such land at any time within twenty years next after the last payment of any part of principal money or interest secured hy such mortgage, although more than twenty years may have elapsed since the time at which the right to make such entry, or bring such action or suit in equity, shall have first accrued, anything in the said act notwithstanding. See 16 & 17 Vict., c. 113 (C. L. P. Amendment Act, Ireland), §§ 20-27. Mercantile Law Amendment Act (19 & 20 Vict., c. 97), §§ 9-16 {July 29, 1856). Sec. 9. Limits actions on merchants' accounts to six years. See. 10. Absence beyond seas is not a disability. Sec. 11. Joint debtors. Sec. 12. What is "beyond seas." Sec. 13. Acknowledgment by agent. Sec. 14. Joint contractors. 23 & 24 Vict., c. 38 {Intestate's Estate), § 13 {July 23, 1860). 13. This section, after reciting the 3 and 4 Wm. IV., c. 27, § 40, enacts that, after the thirty-first day of December, 1860, no suit or other proceedings shall be brought to recover the personal estate of any person dying intestate, but within twenty years next after a, present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of such estate or share, or some in- terest in respect thereof, shall have been accounted for or paid, or some ac- knowledgment of the right thereto shall have been given in writing, signed by the person accountable for the same, or his agent, to the person entitled thereto, or his agent; and in such case no such action or suit shall be brought but within twenty years after such accounting, payment, or acknowledgment. Or the last of such accountings, payments, or acknowledgments, if more than one was made or given. 23 & 24 Vict., c. 53 {Duchy of Cornwall Act), §§ 1 and 2. By section 1 of this Act all the provisions of the Act 9 Geo. III., c. 16, as to limitation of actions and suits, are extended to the Duke of Cornwall, sub- ject to the provisions of certain previous Acts affecting the duchy. 24 & 25 Vict., c. 62 {The Oroton Act, 1861). By section 1 of this Act the crown is not to sue after sixty years by reason of the lands having been in charge or stood insuper of record. English Statutes of Limitation. 16891 By section 2 a similar provision is made as to the rights of the crown in respect of the Duchy of Cornwall. By the third section provision is made as to the effect of answering of rents to the crown. The fourth section contains a reservation of reversionary interests in the crown and Duke of Cornwall. 36 & 37 Vict., c. 66 (Supreme Court of Judicature Act, 1873). 25. Ko claim of a cestui que trust against his trustee for any property held on an express trust, or in respect to any breach of such trust, shall be held to be barred by any statute of limitations. 37 & 38 Vict., c. 57 (" The Real Property Limitation Act, 1874"). This Act may be thus outlined: Sees. 1, 2. Limit for action for land or rent, twelve years; or where the person entitled to a particular estate is out of possession, six years. Sec. S. Allows an extension of six years in case of infancy, coverture, or lunacy. Sec. 4. No time allowed for absence beyond seas. Sec. 5. Utmost allowance for infancy, etc., thirty years. Sec. 6. Tenancy in tail. Sec. 7. Limit for action to redeem mortgage, twelve years. Sec. 8. Limit for action for money charged on land or legacy, twelve years. Sec. 9. Eepeals part of 3 and 4 Wm. IV., c. 27, and this Act is to be read as one with the residue. Sec. 10. The time for recovering charges is not to be enlarged by express trusts. 38 & 39 Vict., c. 77 (The Supreme Court of Judicature Act, 1875), Order Tin, § 1. 1. No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date, etc. See 39 & 40 Vict., c. 37 (Nullum Tempus, (Ireland) Act, 1876). 51 & 52 Vict., c. 59 ("The Trustee Act, 1888"). Sec. 1. "Trustee" includes executor. Sees. 1, 8. Pleading of statutes of limitations by trustees. 56 & 57 Vict., c. 61 (" Pu:blic Authorities Protection Act, 1893 "). Sec. 1. Limitation of action against persons acting under statute, etc. INDEX. [The references are to sections.'i Absconding Debtor. See Disabilities. Absence. See Disabilities. section of owner, does not aflfect adverse holding 256 n. Acceptor. of bill of exchange, lien of 21, note quaere, as to right of acceptor of bill drawn by bankrupt 21, note Account. for what it lies 24 tenants in common 24 what must be alleged in action of, between co-tenants 24 n. scope of action of, extended by statute in some States 24 assumpsit lies in place of, when 24 proceeding to reopen, ibarred 58 n. between partners, in equity 24, 60 n. entry of credit on, within statutory period, disavowed by defendant, effect of 68 n. settlement of, and striking a balance 211, note 3 general payment on, when insufficient as an admission 70 n. entry of credit in, by defendant, effect of 97 n. entry of credit in, as part payment 116e payment on, as an acknowledgment 116h (2 ) 1 actions to open, on discovery of fraud 276b(9) Accounting. equitable actions for an 62a between partners 62a by a trustee 62a Accounts. in general, limitations applicable 280a ( 1 ) [1691] \ 1692 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Accounts — Continued. section what constitutes 280a (2 ) stated 280a(3) partnership 280a(4) in general, accrual of right of action 2S0b ( 1 ) nature of 280b(2) for services rendered 280b(3) , partnership 280b(4> mutual, necessity for mutuality of 280c ( 1 ) effect of mutuality of 280c(2) closing 880c(3) Accrual of Eight of Action or Defense. equitable actions and remedies 62a contracts in general 119a(l)-119a(12) implied contracts 119b(l)-H9b(8) continuing contracts 119e(l)-119c(3) severable contracts 119d(l)-119d(3) generally 122a-122j causes of action in general 122a title to or possession of personal property 122b instruments for payment of money, bills and notes 122c ( 1 ) indefinite time for payment 122c (2) conditional obligations 122c ( 3 ) bonds 122c(4> effect of indorsement of note 122c ( 5 ) municipal obligations 122c ( 6 ) effect of security 122c(7) reimbursement or indemnity from persons ultimately liable, in general 122d( 1> indemnity , 122d(2) action by surety against principal I22d(3) action by agent against principal 122d ( 4 ) liability for acts or omissions in official capacity, in general. . . . 122e(l) failure to require sufficient bond or security 122e(2) misappropriation of public funds 122e ( 3 ) failure to pay over money due in official capacity 122e ( 4 ) liabilities created by statute 122f penalties and forfeitures 122g civil proceedings other than actions 122h recent English decisions 122i specialties 176b(l)-176b(4) torts quasi e contractu 187d ( 1 ) -187d ( 8 ) title to or possession of real property 272b ( 1 ) -272b ( 8 > accounts 280b(l) -ISOclsy Index. 1693 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Accrual of Right of Action or Defense — Continued. section «et-oflFs and counterclaims 281b defenses in general 284b effect of subsequent accrual of new cause of action 284o See Cause of Action; Computation of Peeiod of Limitation. Acknowledgment. historical review of law relating to 64, 65 of debt, rules relating to 64 reasons for these judicial exceptions 64 must warrant inference of promise 64 must be to the proper person 64 must be made with the requisite formalities 64 must be distinct and unequivocal 64 n must not repel inference of promise 64 n., 68 the words " it is a just debt " when sufficient as 64 n. "prove by A. that I had the timber and I will pay," etc 64 n. to a, stranger not sufficient 64 and note fluctuation in law relating to 65 former theory relating to 65 true theory on which founded 66, 67 present theory 68 unqualified, raises implied promise to pay 65 n. applies only to assumpsit 66 of bond 66 conditional, is sufficient 65 n., 97 n., 14 quality of, is for court, but whether made or not, for jury 65 n. of tort does not revive right of action 66 and n. 20 no distinction now exists between, before, and after the bar of the statute 66 n., 20 crucial test as to i 67 elements requisite to make efficacious 68 naked, not sufficient < 68 n. not to plead statute, statute runs on from date of 68 n, need not be entirely by words 68 n. payment of money into court does not amount to 68 n. of debt, but claim that it is void, effect of 68 n. claim that debt has been paid, when it has not, effect of 68, 70 of debt, but claim that statute has run on, effect of 68 n. what, sufficient 68 and notes must be consistent with promise, and evince intention to pay 68 n. offer of compromise not 68 n. qualified, effect, must be accepted ■ 68 n. conditional, subject to conditions 180, note, 68 three questions arise as to ' 68 1694 Ii^DBx. Vol. 1 ends with § 140. Vol. 2 begins witli § 141. Acksowledgmeut — Continued. section exact amount need not be known 68 written, instances of sufficient 68 n. indefinite, not sufficient 68 n. general direction in will does not amount to 68 n. amount of debt need not be known 68 n. that signature to note is genuine and that it was never paid, but claim that statute has run on, effect of 68 n. of existing debt, when sufficient 68 n. hope to pay, is when 68 n. desire to pay, not 68 n. promise to arrange a debt not sufficient 68 n. ambiguous, may be sufficient, when 68 n. whether relates to particular debt, for jury 68 n. essentials of 68 n. must be before action is brought 68 n. before or after statute has run, no distinction in effect of 68 n. must relate to debt in suit 68 n. proof required, to apply to a particular debt 68 instances where such proof was insufficient 68 presumption as to what debt it relates to in certain cases 68 rule when part of a debt ig barred, and part not 68 n. vague and indefinite 68 n. general, where there are several debts, effect of 68 amount to be settled by arbitration 68 n.- question for jury, when 68 what will rebut inference of promise to pay 69 suggestions which destroy 69 n. conditional made operative, how 69 n. of subsisting liability 69 n. of sense of shame that debt has not been paid 70 n. essential requisites of, and rules relating to 70 and notes former rules 70 bare, effect of 71 expressions of willingness to pay if debt established 70 n. insertion of debt in schedule of insolvency, or in a will.. 71, 79, 85, 92 distinction between compulsory and voluntary 71 accompanied by express or implied refusal to pay, effect of 69 settling account and striking balance 70 n. giving note of third person as collateral security, effect of 70 n. rule in Louisiana as to proving 70 n. mortgage made to secure debt, but never delivered, effect of 71 written, not delivered, effect of 219 connecting conversations or letters, to show 72 n., 86, 85 ii., 7 promise to settle not sufficient 72 ImDEx. 1695 Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Acknowledgment — Continued. section failure to deny liability, effect of > 73 expressions of regret at inability to pay 73 in answer to bill in equity, or in affidavit, for leave to plead the statute 73 n. conditional, when insufficient 73 n. indefinite 73 n. offer to mortgage lands to secure debt 73 n. must be made by preson competent to contract 73 n. effect of 74 offer to pay in specific property 75, 78 offer to compromise, or to pay less than is due, is not 78 distinction, whether made before or after statute has run 78, 81 by and to whom must be made 77 made to agent of creijitor, what must be shown 79 inures to benefit of creditor's assignee 79 made in paper not intended for the creditor, not sufficient 79 inventory of assets of estate, debt due from executor in 79 entry by person on books of a creditor, of a debt due from himself. ... 79 recital of debt in deeds, etc 80 offer to arbitrate 80 when must be made 81 action predicated on the old debt 81 made on Sunday, effect of 81 causes of action which may be renewed or revived 81a or new promise 81b nature of in general 81b persons to whom made 81c persons by whom made in general 81d(l) joint and several obligations 81d(2) by partners 81d ( 3 ) by husband and wife 81d(4) by executor or administrator 81d(5) by parties to incumbrance or their successors in interest 81d(6) form and requisites of in general 81e ( 1 ) proceedings by municipal corporation or officers 81e(2) judicial admissions 81e(3) consideration for ._ 81e ( 4 ) recent English authorities 81f effect of, on specialties 176 by executor or administrator, effect of 190-192 or new promise by mortgagor, effect of upon mortgage 230 when rights of third persons,^ claiming through him, intervene 230 by mortgagee of mortgagor's rights 235 by parol, effect of 235 n. 1696 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Acknowledgment — Continued. sectioit of owner's title breaks continuity of adverse possession, when 270 parol, when sufficient 270 how and by what may be shown 270 recognition of owner's title, effect of 270 by part payment, effect of. 68 n., 96-116i See Pabt Payment; New Peomises. Acknowledgment in Writing. when sufficient 84, 85 amount need not be known or stated 68, 86 n., 88 essentials of 86, 89 mortgage made to secure debt, but never delivered, is not 71 writing found among debtor's papers after his death is not 71 See Acknowledgments. effect of statutes requiring 82-84 what, sufficient i 85, 89 must clearly refer to debt in suit 68, 86 distinction between absolute and qualified 87 must be definite 88 must be delivered to the creditor 71, 85 may be shown by parol 68, 87 direction in will to pay 90 debts due from corporations, who may make 91 entry of debt in schedule, deeds, etc 71, 79, 85, 92 question of sufficiency of, for the court 93 must be signed by the debtor 94 must bind debtor personally 95 conditional effect of 87, 95 See Indobsement. requirement of writing in general 95a(l) effect of verbal, or promise 95a (2) sufficiency of writing or signature 95a ( 3 ) including debt in schedule on assignment for creditors 95b sufficiency of, or promise, in general 95c ( 1 ) essential elements in general 95c ( 1 ) implied promise 95c ( 2 ) sufficiency of compliance with requirements as to essential elements in general 95o ( 3 ) admission of existing liability and renewal of obligation 95e(4) assertion of payment 95c(5) acconnta 95c(6) qualifications and conditions in general 95d(l) provisions for payment 95d (2) refusal or inability to pay and claim of set-off 95d(3) compromise or settlement 95d ( 4 ), Index. 1697 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Acknowledgment in Writing — Continued. section acceptance of offer 95d(5) fulfillment or compliance with condition 95d(6) certainty and deflniteness in general 95e ( 1 ) provisions for payment 95e(2) identity of debt 95e(3) amount of debt 95e(4) construction and operation in general 95f ( 1 ) renewal or revival of cause of action 95f (2) time of making, or new promise 95f (3) accrual of right of action and limitations 95f (4) effect of condition or contingency 95f ( 5 ) Acknowledgments by Part Payment. persons to whom made 116a persons by whom made in general 116b ( 1 ) joint and several obligations 116b(2) sureties, indorsers, and guarantors 116b ( 3 ) by partners 116b (4) by husband and wife '. . . . 116b ( 5 ) by executor or administrator 116b ( 6 ) by heirs, devisees, or life tenants 116b(6) by assignee, receiver, or trustee 116b(7) by parties to incumbrance and their successors in interest 116b (8) sufficiency of, in general 116c(l) admission or denial of liability and payment by way of compromise and settlement 116e(2) payment of interest 116c(3) application of payments 116c(4) payments from proceeds of security 116c ( 5 ) security and realization thereon 1 16c ( 5 ) medium of payment 116d entry of credit in account 116e indorsements on notes and other instruments 116f ratification of unauthorized payments 116g operation and effect of, in general 116h ( 1 ) payment on account 116h(2) renewal or revival of cause of action 116h(3) effect of statute requiring written acknowledgment or promise.. 116h(4) time of making 116h (5 ) accrual of right of action and limitations 116h(6) revival of debt as revival of lien or other security 11 6i Acquiescence. effect of, in equity gl distinction between, and laches 62 107 1 ! I •' 1698 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Action. SECTION " commencement of, what is 48 delay induced by defendant 49 when claim arises 50. pendency of 253a(l), 253a(2) Actions. lex loci controls, when 7 n., 8, ft lex fori controls, when 8 of assumpsit, embraced in Stat. James 1 16-21 what, ex contractu, are within the statute 16-26 for debt revived by new promise are on the old debt 65 n. right of, may be lost through suit brought, when 48 n., 23 right of, revived by acknowledgment, on old debt 70 n. upon debt, revived by new promise or acknowledgment, must be upon the old debt 81 when promise or acknowledgment is conditional, what must be stated 81 pleadings in 7, 81 See Account; Assumpsit; Debt; Pi.eedings. premature 44 limitations applicable to particular 57a, 571 limitation as affected by nature or form of remedy in general 57a effect, on limitation, of election between remedies 57b particular forms of action 57o recovery of personal property 57d contracts in general 57e ( 1 ) construction, of contract 57e(2) employment 57e (3 ) carriage 57e(4> liability of corporate stockholders 57e(5) contract for reimbursement 57e(6> written contracts in general 57f ( l ) what constitutes written contract in general 57f (2) subscription 57f (3> contract of sale 57f ( 4 ) corporate charter 57f ( 5 ) covenants of warranty 57f (6) instruments for payment of money in general 57g ( 1 > what constitutes instrument for payment of money 57g(2) bill or note in general 57g(3V purchase-money notes ,. 57^ ( 4 1 indorsement of bill or note 57e(5) receipt for money with promise to repay 57g(6) attested writings 57™ ( n \ municipal or county warrants 57g(8> Index. 1699 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Actions — Continued. section- bankbook . 57g(9) mortgage or security 57g(10) judgment . '. 57g(ll) agreement of attorney to collect claim and account for the pro- ceeds 57g(12) offer of reward 57g(13) oral contracts, express 57h implied contracts and debts and obligations not evidenced by writ- ing 57i(l) implied contract growing out of breach of written contract 57i (2) liabilities for acts or omissions in official capacity 57] civil proceedings other than actions 57k recent English decisions 571 commencement of, or other proceedings 297-313 See Commencement of Action ok Otheb Pkocbeding. Adjustment. . of insurance loss, when essential 45 Administration. statute suspended until letters of, granted 6 n., 54 u., 5 bond, when suable 162 n., 40 Administrator. right of aetion vested in, does not suspend statute as to heir 6 effect of statute upon, and relief in equity 6 n., 64 See ExECTJTOBS and Administea.tobs. Admiralty. State statutes of limitations apply to actions in, when 27 stale demands not favored by 27 Admission. of claim, effect of 69 notes See ACKNOWXEDGMENTS. Adverse Possession. doctrine of, virtually abolished by Stat. 3 & 4 Wm. IV. in England . . 3 when title by, has been acquired, cannot be impaired by subsequent repeal of or change in law 14 title to lands of government cannot be acquired by 52, 254 n., 9 grant from State may be presumed, when 52 equity bound by 5g possession of trustee, possession of cestui que trust, when 58 n. party claiming title acquires title by, although mistaken in his claim 59 n. 1700 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Adverse Possession — Continued. section mortgage in possession holds adversely to mortgagor 224-227, 235 how it may cease to be so 58 n., 5, 235 nature of title by 254, notes 1 and 9, 255 n., 13 as to riparian lands 258 n., 93, 269 n., 79 as to ways 258 n., 94 title by and period of occupancy, under statutes 254, 255 when under color of title, fee passes 254 n., 259 what constitutes, under these statutes 256 cultivation and improvement as establishing 255 using land for pasture occasionally not sufficient 255 must be intent and effectuated to usurp dominion 256 entry need not be originally wrongful 256 naked possession in subservience to the legal title 256, 257 claim and occupancy without color of title limited to actual occupancy 257 mere verbal objections to the occupancy by the owner does not in- terrupt 258, note must be actual entry or action to recover possession 258, note statutory provisions as to, in some States 255 mode of occupancy prescribed by statute must be strictly pursued .... 255 inclosure, must be by substantial fence 255, 257 fence must have been built by the occupant 255 ■disseisin, what constitutes, when statute makes no provision as to 256, 258 must be entry and possession hostile to owner 256-258 when possession commences by permission of the owner, how it may become adverse 256, 260, note distinction between disseisin in fact and by election 256 must be entry or possession under claim of title 256, and notes naked possession not sufficient 256 color of title, entry or possession without effect of 257 species of occupancy required 257, 258 must be an actual pedis possessio 257, 258 qualities of, and acts which constitute 257, 258 of land bounded by river restricted to banks of 257 n. may give title to land under water by actual user 257 n. acts which are not possessory 257, 258 see illustrating 258 natural barriers, substitute for fence, when 257 entry under deed, and inclosing more land than the deed covers, effect of 257 n. must be intention to claim title 258, note question whether there has been a disseisin for the requisite period is for the jury 258 question as to what constitutes, is for the court 258 what proof requisite to establish 258 Index. lYOl Vol. 1 ends with § 140. Vol. 2 begins with § 141. Adverse Possession — Continued. section acts of ownership, and not mere trespasses, must be shown 258 exercise of customary rights is not 258, and note notoriety of, must be established 258 need not show that owner actually knew of the hostile claim.. 258, note entry under color of title, effect of 259 what is color of title 259 may be by parol in certain cases 259 land must be definitely described in deed or writing 259 color of title dispenses with pedis possessio, and sufficient occupancy of part, constructively extends to the land described 259 species of occupancy required 259 must conform to the character of the land, and the ordinary pur- poses for which such lands are used in same section of country.. 259 1st note bona fides, not requisite, except 259, and note executory contracts, etc., possession under 260 vendee's possession not adverse until he fully performs contract. . . . 260 after performance, he holds as owner and adversely 260 exchange of lands, diflference to be paid, possession not adverse until payment is made , 260 entry under license not adverse unless 260, and note entry under parol gift 260 mixed possession, effect of 261 title in such cases draws to it the possession 261 best title prevails , 261 limitations upon constructive possession 262 possession of wrong land by mistake, effect of 263 grantor in possession, when adverse 264 landlord and tenant, possession of, not adverse, unless.. 265, 271 n., 26 co-tenants, what acts of, are adverse 266 what possession will sustain constructive possession 267 how adverse possession may be proved 268 continuity of possession 269 how continuity may be broken 270 tacking of different possessions, when permitted 271 ejectment, effect of 272 continuity of, broken by entry of legal owner 270 by acknowledgment of owner's title 270 by recognition of ovnier's title 270 by abandonment of possession, what is 269, 270 See CoLOK of Titie. recovery of real property, in general, limitations applicable 272a ( 1 ) actions at law in general , 272a(2) equitable actions 272a(3) partition 272a (4) 1702 Index. Vol. 1 ends with^ § 140. Vol. 2 begins witli § 141. Adverse Possession — Continued. section foreclosure of mortgage or deed for security 272a(5) redemption from mortgage or deed for security 272a ( 6 ) title under forced sale 272a(7) establishment of lost deed 272a(8) title to or possession of, in general, accrual of right of action . . 272b ( 1 ) nature of entry or possession 272b (2) title to support action in general 272b (3) title under forced or judicial sale 272b (4) title or right of parties to mortgage or deed as security 272b (5) rights of heirs and devisees t 272b (6) tacking successive possession or right 272b (7) forcible entry and detainer 272b(8) recent English decisions 272c Agent. fraud of, computation of period of limitation 276b (8) Agents. part payment by, not operative, unless 99, 100, 103 what payments by, operative 79 n., 65, 101 n., 103 n. acknowledgment by 209 payment made to, operative, .when 103 for sale of goods, statute begins to run against, when 123 for investment of money 123 and notes collection - 123 and notes demand, presumed, when 123 demand must be proved or presumed 123 when demand dispensed with 123 implied contract between, and principal 123 rule when account has been rendered 123 rule when principal has been notified that collection has been made. . 123 when he stands in position of trustee 123, 200 n., 9 general 123 n. retaining possession of lands or other property purchased for prin- cipal, is trustee for him 200 and notes See Crkditoe. Agreements. as to period of limitation 53d waiving limitation 53e Alien Enemy. See Disabilities. Amendment. See Judicial Pbocess. Index. 1*^03 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Ancestor. seotiok statute having begun to run against, not suspended by disability of heir , 6 Annuity. meaning of, when charged on land 32 n. 18 Answer. of statute, available, when 7 n. in New York, statute must be set up by way of 7 n. to bill in equity, admission of debt in, effect of 73 n. Appeal. pendency of 253b Appropriation. of payments, rules relating to 110 See Pabt Payment; Payments. Arbitration. offer to submit debt to, effect of 80 See Acknowledgment; Awabd. pendency of 253e Assault, Etc. statute T)egins to run against actions for, when 123 Assessment. subscription to stock, payable by, when statute begins to run 119 n. notes subject to 129 statute ibegins to run against, when 164 presumed to be paid, when 172 Assignee. payment of dividend by, effect of ■ 101 for life, payment of interest by, 80 and n. 99 in bankruptcy and insolvency 202 acknowledgment by part payment 116b (7) Assignee in Bankruptcy. has same remedies as bankrupt had 16 Assignment. of property in trust to pay debts, effect of 21 n. 5, 86 n. disseised mortgagee cannot make 235 n., 39 pendency of proceedings under 253g 1704 Indbx. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Assumpsit. SECTION treated as embraced by trespass on the case 2 n. when action of, first came into use 2 n. embraced in Stat. 21 James I., though not mentioned 2 n., 16-20 for what it lies 20, 21 foreign judgments recoverable in action of 16, 20 promissory notes, bills of exchange, checks, etc 16 attorney's bills 16 money lent on deposit of title-deeds 16 express or implied 20 and n., 55 for torts, when 21, 177 may be brought instead of account, when 24 lies to recover money paid by co-obligor on bond 35 balance between partners, when 35 legacy, when 35 balance, though arising from specialty debt 35 debt may sometimes be brought when action of assumpsit would be barred 58 n. Attested Writings. limitations applicable to actions on 57g ( 7 ) Attorney. bills of, recoverable in assumpsit, and when due 16 statute begins to run for money collected by, from date of collection. . 18 except when he fraudulently conceals the fact 18, 122 debt taken for collection on shares, statute begins to run on claims, when . , 119 statute begins to run on claim of, for services, when 121 against, for misfeasance or malfeasance, when 122 lien of, may be enforced, though debt is barred 222 n. limitations applicable to actions on agreement of, to collect claim and account for the proceeds . .' 57g(12) fraud of, computation of period of limitation 276b (8) Available. limitations, for and against whom 41-53e Award. payment of, how pleaded 15 n., 2 is a specialty - 29 n., 2 B. Bank. when a trustee 200 n., 1 1 Ihdex. 1T05 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Bank Bills. section See Notes. Bankbook. limitations applicable to actions on 57g(9) Bankruptcy. payment of a dividend under commission against one partner saves statute as to the other 58 n. effect on statute . 21 n., 5 See Insolvency. pendency of proceedings in 253g Begins to Run. See Running of Statute. Bills of Exchange. payable one " month " after date, means calendar month 55 giving in part payment, effect of 114 See Assumpsit; Check; Notes. Bills and Notes. See Notes. limitations applicable to actions on, in general 57g(3) purchase-money notes 57g (4 ) indorsement of 57g ( 5 ) Bond. surety on, suing for contribution, statute relative to simple contracts applies 19 oflBleial, when not within the statute 52, 154 n., 26 co-obligor, who has paid, may bring assumpsit for 35 action upon title, equity applies statute to 58 effect of acknowledgment of 66, 176, 285 as specialties, presumed to have been paid, when 29, 172 statute begins to run on, when 172 n., 175 See Specialties. Boundaries. See Adyebse Possessioit. Burden of Proof. See Evidence. "By" a Certain Day. act to be done, must be fully completed the day before 56 By-Laws. , action on, within the statute 19 1706 IlTOEX. Vol. 1 ends with § 140. Vol. 2 begins with § 141. 0. Cancellation. section of instruments, equitable actions for 62a on ground of fraud 276a{3), 276b(10) Carriage. limitations applicable to actions on contracts for carriage 57e(4) Cause of Action. when it accrues 118 n., 13, 119 Certificate of deposit, when statute begins to run on 118 n., 142 and n. of stock, right to demand 149 u., 80 Cestui Que Trust. may set up statute whenever trustee could 41 possession of trustee inures to benefit of, when 58n. laches of, effect 200 n., 8, 205 n., 42, 218 n., 27 See TEtrsTS. Change in Statute. when constitutional 11 when made, which governs 12 as affecting crimes 13 rule when title to land is concerned 14 Chattel Mortgages. See MOBTGAQES. Check. assumpsit on 16 when it discharges debt for which given ,. . 16 rules relating to 124 n., 18, 140 City Orders. See Oedees. Cloud on Title. equity may prevent 255 Co-Contractors, Etc. statutory provisions as to 285 doctrine of Whitcdmb v. Whiting generally repudiated 286 present doctrine in this country 287 partners, effect of part payment or acknowledgment by one, after dis- solution 287, 287a payment by one at request or by direction of the other 288 Index. 1Y07 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Collateral Security. sectiow giving, for debt on which statute is running, effect of. . 21, 70 n., 101 and n., 44, 145 n. loss of remedy on, effect 282 n., 42 Collateral Undertaking. debt lies upon, when 25 Color of Title. what is, and effect of 258 n., 79, 259 See Adverse Possession. Commencement of Actions 48, 118, 289-291, 294 Commencement of Action or /Other Proceeding. mode of computation of time limited 297 proceedings constituting, in general 298 ( 1 ) filing pleadings 298 (2) issuance and service of process 299 ( 1 ) -299 (6) issuance of process 299(1) delivery of process to officer 299 ( 2 ) service of process 299 (3) service on part of defendants 299 (4 ) substituted service 299 (5) subsequent, alias, or pluries process 299 ( 6 ) want of jurisdiction 300 defects as to parties in general 301 { 1 ) amendment of defects 301 ( 2 ) defects of irregularities in process or service 302 defects or irregularities in process or service 302 intervention or bringing in new parties 304 substitution of parties 305 effect as to persons not parties 306 amendment of pleadings in general 307 (1) amendment restating original cause of action 307 (2 ) amendment introducing new cause of action 307(3) new action after dismissal, or nonsuit, or failure of former action in general 308(1) nature, or form, or identity of actions or proceedings 308 ( 2 ) abatement or abandonment of former action 308 (3) dismissal or nonsuit in general 308(4) new action in different forum 308 (5) failure of action for want of jurisdiction 308 (6) failure for defects as to parties 308 ( 7 ) failure of action for want of, or defects in, process or service thereof 308 (8) failure of action for defects in pleading 308(9) 1708 Index. Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Commencement of Action or Other Proceeding — Continued. SECTiopf identity of, or change in, parties 308 ( 10 ) decisions on review 308 ( 11 ) action on set-off, or counterclaim, or cause of action alleged as a de- fense 308(12) civil proceedings other than actions in general 309 presentation of claim against estate of deceased 310 presentation of claim against estate of insolvent or bankrupt 311 proceedings in other court or tribunal 312 excuses for delay 313 Composition. default in payment under, effect 137 u., 93 Compromise. offer of, not an acknowledgment 68 n., 78, 97 n., 14 See New Peomise. Compulsory Pajmients. effect of 101 See Past Payment. Computation of Period of Limitation. death and administration 199a- 199c (4) trusts and trustees 220a ( 1 ) -220b ( 4 ) personal disabilities and privileges 237-253 title to or possession of real property 272b ( 1 ) -272b ( 8 ) fraud as ground of relief 274-276b(13) ignorance of cause of action 276c(l), 276c(2) mistake as ground for relief 276d(l), 276d(2) duress as ground for relief 276e concealment of cause of action " 276f ( 1 ) -276f ( 3 ) accounts in general 280b (1) -280b (5) mutual accounts 280c (1) -280c (3) set-offs and counterclaims 281b defenses in general 284b pendency of legal proceedings, injunction, or stay 253a(l)-253j commencement of action or other proceeding 297-313 absence, nonresidence, and concealment of person or property . . 244-249c See AccEUAL of Right of Action oe Defense. Computation of Time. how time is computed under statutes of limitations. . . . 126 n., 23, 54-57 fractions of days may be reckoned, when 54 "from" debt payable, whether included or excluded 54 meaning of "month" in 55 "years," meaning of, in 57 Index. 1709 Vol. 1 ends with i§ 140. Vol. 2 begins witli § 141. Concealment. section absence as a 249 See Disabilities. of cause of action, in general 276f ( 1 ) what constitutes concealment 276f (2) by agent or third person. 276f (3) Concurrent Jurisdiction. rule in equity in cases of 58 Concurrent Remedies. rule as to, when statute gives 38 Condition Precedent. statute runs only when performed 119 and n., 43 Conditional Acknowledgment. when sufBcient 73 n., 77 offer to pay in specific property 75 See Acknowledgment. condition must be accepted 77 can only be enforced according to the condition 77 n. offer to compromise 68 n., 78 Conflict of Laws. between statutes of different States i 42 n., 14 See Foreign Statute. Consequential Injury. action for, arises, when 178 ignorance of, does not suspend the statute 178 damage must ensue from, before cause of action arises 178 flee Bonomi v. Backhouse 178 n. Cbnstitutionality. of limitation acts 4 n., 11, 11a, 12 power of legislature to change 11 right relating to remedy not vested 11, 39 n., 95 after statute bar complete, cannot by change of statute revive the claim 11 change affecting existing claims, must give reasonable time to bring action 11 statute may be made retrospective 11 n. statute barring foreign judgments 8 n., 8 statute allowing conveyance of land held adversely 264 n., 98 Construction. of limitation laws in general lib 1710 Index. Vol. 1 ends with i§ 140. Vol. 2 begins with § 141. Constructive Possession. See Adyeese Possession. Constructive Trusts. See Teusts. Contract. section obligation of, is what 11 rights relating to remedy upon, not vested 11 covered by Stat. James 1 16-20 clauses in statutes that cover simple contracts 23-26 waiver of the statute by 7, 51 shortening statutory period by 41 n., 1, 76 n. limitation may depend upon presumed intent of the parties. . 20 n., 89 substitutions and renewals of, effect 35 n., 53 action to annul, barred 58 n. to be performed in one "month," etc., means calendar month 55 action to reform, barred by statute 58 limitations by . 42 parol 47 equitable actions for enforcement of 62a Contracts. limitations applicable to 57e ( 1 ) -57i ( 2 ) contracts in general 57e(iy construction of contract 57e(2) employment 57e ( 3 ) carriage 57e(4)' liability of corporate stockholders 57e(5) contract for reimbursement 57e(6y' written contracts in general 57f ( 1 ) what constitutes written contract in general 57f (2) subscription 57f ( 3 ) contract of sale i 57f (4) corporate charter 57f(5> covenants of warranty 57f ( 6 ) instruments for payment of money in general 57g ( 1 ) what constitutes instrument for payment of money 67g ( 2 ) bill or note in general 57g(3)' purchase-money notes 57g (4) indorsement of bill or note 57g(5) receipt for money with promise to repay 57g ( 6> attested writings 57g ( 7 ) municipal or county warrants 57g ( 8 ) bankbook 57g(9) ' mortgage or security 57g(10)> Index. 1711 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Contracts — Continued. section judgment 57g(ll) agreement of attorney to collect claim and account for the pro- ceeds 57g(12); offer of reward 57g(13) oral contracts, express 57h implied contracts and debts and obligations not evidenced by writ- ing 57i ( 1 ) implied contract growing out of breach of written contract 57i(2) Contracts, When Statute Begins to Run. contracts in general 119a( 1 ) conditional contract 119a(2) indefinite time for performance 119a(3> contract to pay on demand 119a(4) contract to pay after death 119a(5) breach of contract in general 119a(6) contract of employment 119a(7) contract with agent 1 19a ( 8 ) contract of sale i 119a(9>' guaranty 119a (10) contract of carriage 119a ( 11 > assumption of debt or mortgage 199a(12) implied contracts in general 119b ( 1 )' liability for services rendered 119b(2) liability of agent or attorney for frauds collected 119b (3 >! funds received on invalid obligation or without authority...... 119b(4) liability to refund overpayment by mistake 119b (5) liability to contribution 119b(6) implied warranty 119b (7> usury 119b (8) continuing contracts in general 119c ( 1 ) contract of employment or agency in general 119c (2) professional services by attorney H9c(3) severable contracts and installments in general 119d(l) installments in general 119d(2) interest 119d(3) contracts for services 120 rule as to services of attorneys 121 when attorney is charged with misfeasance or malfeasance 122 express or implied, when statute begins to run on 141 See CoiirsTiTUTioNALiTT; Lex Loci Contractus; Simple Contbacts; Specialities ; Waiveb. Contribution. between sureties 145 n., 37, 47 1712 IlTOEX. Vol. 1 «nds with § 140. Vol. 2 begins with § 141. Co-Obligor. See Bonds. Co-Purchasers. section statute begins to run between, wh«n 171 Corporation. bill to compel issue of stock by, will not lie when party has been guilty of gross laches 60 n. as to officers' frauds 59 n., 68, 155 n., 28, 187n., 68 acknowedgment or new promise by, who may make 91 See Stockholtebs. Corporations. limitations applicable to actions against stockholders of 57f(5) on stock subscriptions 57f (3) under corporate charter 57f (5) Co-Sureties. statute begins to run between, when 171 Co-Teaants. action lies by, when 24, 169, 276 Counterclaim. plaintiff cannot avail himself of statute against, unless replied thereto 11 n. See Set-off. Counterclaims. limitations applicable 281a accrual of right of action or defense 281b See Set-offs. Counties. subject to statute 53 new, made liable for the old, effect 39 n., 93 County. limitation as against, or officers thereof 53a ( 1 ) County Warrants. See Waebants. Coupons. when statute begins to run on 127 IinjEx. 1Y13 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Court. SECTIOK quality of acknowledgment la one for 66 n. questions for, relating to acknowledgments 68 payment into, effect of 107 orders of, statute begins to run on, when 157 Covenant. for what, action of, lies 26 effect of varying, sealed contract by agreement not under seal 26 assumpsit or, when 35 for quiet enjoyment, statute begins to run on, when 173 of warranty, broken, when 39 n., 95, 173, 174 Covenants. limitations applicable to actions on, of warranty 57f (6) Coverture. See Disabilities; Maebied Women. Creditor. may appropriate payments, when 110 cannot, as agent, make payment to hinjiself 101 and n., 44 bill by, stops statute 289 n., 2 allowance of claim of, in Probate Court, effect 199 n., 86 See Pabt Payment; Payments. Ciim. Con. statute begins to run in actions for, when 185 Crimes. penal statutes never extraterritorial 8 n., 8 statute barring prosecution of, cannot be changed so as to apply thereto after the bar is complete 13 may be changed the bar is complete 13 no limitation to prosecution of, at common law 28 Cross- Actions. limitations applicable ; 281a accrual of right of action 281b See Set-Offs. Cumulative Disablities. when may be relied on 23-24 illustration 23, 24, 599-604 and notes See Disabilities. 108 1714 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Curtesy. section tenant by, is estopped from denying the title of those under whom the tenancy is derived 265 Custody of the Law. property in 253£ Custom. money due by virtue of, within the statute 19 D. Days. upon which debt is due, excluded or included in computing time from which action accrues 54-57 included in some States and excluded in others 54 when act is to be done " after " a certain rule 54 fractions of, when reckoned. See CoMPUTATioisr of Time. 0eaf and Dumb. persons, not within the disabilities of the statute 239 Death. of party, effect of, on running of statute 6 Debt. action of, lies' on simple contracts, when 25 when, upon a specialty 25 action of assumpsit superseded it, when 25 may be brought whenever indebitatus assumpsit can 25 statutory provisions relative to 25 n. in action of, statute applicable to, applies although assumpsit might be brought, and action of, would be barred 58 n. amount of, may be shown by parol 87 identity of, must be established, when 108 Debtor. may direct appropriation of payment 110 See Paet Payment; Payments. Deceit. action for 276b(5> Declaration. new, filed in case statute runs from date of filing 7 n. amended, when statute attaches to 7 n., 294 n., 36 Index. 1*715 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Decree. See Judgment. Deed. bection operation and effect of bar of limitation on, as security 63c(2) Deeds. specialties 26, 29 recital of debt in, effect of 80, 92 Defenses. in general, limitations applicable 28?a(l) fraud as a defense 284a (2) in general, accrual of right of action or defense 284b effect of subsequent accrual of new cause of action 284c Demand. statute does not begin to run until, for deposits with bankers 17 when necessary to put statute in motion 24 n., 66, 118 See Running of Statute. when necessary to put statute in motion as to bills, notes, etc. . . 124-140 presumed to be made within " reasonable time " 125 when, in fact is made 125 in actions against agents, factors, etc., when necessary. . , 123 when delay in making, is contemplated 124 on note payable " any time within two years " puts statute in motion at once 125 Demurrer. when statute may be made available by 7 and n., 85, 200 n., 6 to bill for recovery of legacy is not supported by presumption of pay- ment 199 Deposit. certificate of, when statute begins to run on 118 n., 142 with bankers, being loans, are recoverable in assumpsit. . . 17, 118 u., 37 when statute runs against 17, 119 n., 142 special, rule as to 18 De Son Tort. See ExEcuTOEs and Administbatoes. Detinue. wager at law formerly check upon actions of 2 n. Devastavit. executor, etc., liable for, when time is allowed to run against the estate 197 1716 . Index. Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Devisee. section disability of, does not suspend statute, wben 6 acknowledgment by part payment 116b(6) Devisor. statute having begun during life of, runs as to devisee C Disabilities. statute having begun to run, not stopped by intervening 6 must have existed when statute began to run 6 of devisee 6 cumulative, when may be relied on 6, 237 n., 251 what, exist by statute 237 " under legal disabilities," meaning 237 and n., 240 in general 237a ( 1 of part of several jointly interested 237a (2 infancy, in general 238, 238a ( 1 personal actions 238a ( 2 actions for recovery of real property 238a ( 3 eflfect of marriage 238a (4 effect of absence or nonresidence 238a (5 effect of action during disability 238a (6 insane persons, non compotes, etc 239, 239a ( 1 removal of disability 239a (2 coverture, in general 6, 237, 240, 240a(l effect of separate acts 240a (2 nature of property or cause of action involved 240a (3 claim by wife against husband 240a (4 claim to real property in general 240a ( 5 recovery of property disposed of by husband 240a (6 recovery of property purporting to have been conveyed by wife 240a (7 effect of separation from husband 240a ( 8 effect of disability on joint action of husband and wife.... 240a (9 effect on husband of wife's disability 240a { 10 effect on husband's right to wife's property 240a ( 11 effect on wife's heirs of surviving husband's interest 240a (12 imprisonment 241 alien enemy 6, 242 disability intervening after accrual of cause of action, in general 242a (1 infancy 242a(2 coverture 242a ( 3 insanity 242a ( 4 injunction 243 absence of defendant from State 244-246 Index. lYlY Vol. 1 ends with § 140. Vol. 2 begins with § 141. Disabilities — Continued. section what constitutes absence from State 245 absence at time of accrual of cause of action 245a departure after accrual of cause of action 245b joint debtors, absence of one, eflfect of 246 residence, if not continuous, must aggregate the full period 247 residence in one State, and doing business in another 247 nonresidence, in general 247a ( 1 ) persons entitled to sue 247a(2) persons liable . -. 247a ( 3 ) nature of residence 247a(4) actions relating to specific property or interests therein... 247a (5) effect of agency within jurisdiction 247a ( 6 ) corporations 247a(7) return and residence after absence 247b absconding debtors 248 concealment 249, 275 concealment of person or residence, in general 249a(l) ignorance of person entitled to sue 249a(2) concealment of property involved or liable 249b effect as to parties jointly or severally liable, guarantors, and sure- ties 249c foreign corporations 250 cumulative 251 co-existing 251a tacking successive 25Ib co-existing, all must be removed 6, 251 must be one provided by statute 252 of defendants 253 Discharge. in bankruptcy, effect 21 n. 5 of mortgage 84 n., 4 Disseisin. what constitutes 256 of mortgagee 235 n., 39 , See Adverse Possession. Distributive Shares. See Estates. Dividends. effect of statute upon 20 n. 89 21 n. 2 Divorce. proceeding to annul, within statute 6g n_ 1718 Index, Vol. 1 ends with § 140. Vol. 2 begins with § 141. Dower. section tenant by, is estopped to deny title of those under whom the ten- ancy is derived 265 See Advebse Possession. not within the statute, unless made so expressly 256 n., 20, 273 statutory provisions as to 273 proceedings for assignment or recovery of, limitations applicable 273a(l) actions for, limitations 273a(2) laches 273a(2) Duress. as ground for relief, computation of period of limitation 276e E. Effect. of bar by limitation 63a-63i See Limitations; Operation and Effect. Ejectment. limitation as to 35 n., 53 action of, barred, equity will not give relief 58 n. effect of bringing, upon adverse possession 272 Elegit. tenant by, is estopped from denying title of those under whom the tenancy is derived 265 See Adveesb Possession. Eminent Domain. limitation in matters of 19 n., 258 n., 94, 260 n., 66 Employment. limitations apt)licable to actions on contracts for 57§ ( 3 ) Entry. right of, barred, equity will not give relief 58 n. non-payment of rent for twenty years will not bar entry 58 n. of legal owner, breaks continuity of adverse possession 270 how must be made 270 statutory provisions as to 270 Equitable Actions. adoption of statute in 58, 59 See Equity. and remedies in general 62a for rescission and cancellatoin of instruments 62a for reformation of instruments . . . . , 62a IWDEX, 1719 Vol. 1 «nds with § 140. Vol. 2 begins with § 141. Equitable Actions — Continued. section of cause o faction, in general 276f (1) for specific performance 62a for enforcement of vendors' liens 62a for an accounting 62a for accounting between partners 62a for accounting by a trustee 62a for enforcement of contract 62a for recovery of purchase money on failure of title 62a for quieting title 62a for subrogation 62a Equitable Estoppel. See Estoppel. Equitable Lien. for purchase-money of land, not defeated by running of statute upon the debt 232, 236 n. distinction between, and mortgage 232 Equity. continuing trust, not barred in 58 n. stale demands discouraged in 58 n., 59 and n., 68 will not give relief in cases of constructive trusts when statute has run 58 n. rule, when suit at law could be brought for same matter 58 applies statute, where money is paid by mistake 58 n. will not give relief where right of entry or ejectment is barred. ... 58 n. rent-charge not barred in 58 n. limitations strictly applied in case of executors, etc 58 n. courts of, in cases of concurrent jurisdiction adopt statute by analogy 58, 59 will not relieve against usury when statute has run 58 n. fraud sav«s rights in, though barred at law 58, 275 statute expressly applied to, in some States 58 will not treat demand as stale, when 60 statute does not apply as to purely equitable matters 59 Federal courts of, apply State statutes 27, 40 a and n., 3 will refuse relief when party guilty of gross laches ; . . 27, 59, 62 trustee not permitted to set tip statute in, when 59 n. will effectuate legal rights of parties when barred at law, in certain cases 60, 63 will prevent cloud on title 255 n., 12 discourages stale demands 60 makes distinction between laches and acquiescence 61, 62 admission of debt in answer to a bill in, effect of 73 n. See Injunction; Mistake; Specific Peefosmance. equitable actions and remedies in general 62a 1Y20 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Estates. section action for distributive share of, not within statute 40 by the curtesy, relation of statute to 259 n., 34 Estoppel. by deed, arises only between privies 41 n., 7 mere equitable, will not prevent party from relying on statute 41 by inducing delay 42 n., 17, 66 n., 20, 119 by silence, effect 60 n., 93 to rely on limitation 53o Evidence. parol, admissible to show amount of debt revived by written acknowl- edgment or promise 87 burden of proving exceptions to the statute 7 n., 81 burden of showing that promise, etc., applies to debt in suit, etc., is upon plaintiff 94 n., 97 n., 11© parol, admissible as to part payment, when 98 n.. Ill, 115, 116 to supply a date or name 94 indorsement of payment on notes, effect of 115 parol, admissible to show that deed was intended as mortgage 236 Execution. issued on judgment, effect 30 n., 10, 101 n., 37 and n., 44 Executors and Administrators. executor, having personal assets, liable in assumpsit for legacy, when 35 statute strictly applied in favor of, in equity 58 n. as to legacies 58 n. actions for fraud of, against sureties, must be commenced, when.... 58 quaere, whether one can plead statute when the other refuses to.. 68 n. payment by, under decree of court, does not remove statute bar .... 229- appointed in one State does not put statute in operation in another 117 n. statute does not begin to run for or against estate until appointment of 117 statute begins to run in favor of sureties upon bonds of,' when 162 may pay debts barred by statute, when 188 when creditor is executor, etc 189^ acknowledgment by .' . . < 188 n., 1, 190 by one of several executors 190 n. what acknowledgment by, is sufficient 191 where executor is also devisee in trust 192 where statute has run upon debt due the estate 193 where statute has begun to run in life of intestate 194 acknowledgments by 81d { 5 ) by part payment 116b (6> Index. 1Y21 Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Executors and Administrators — Continued. section de son tort • • • 195 ■effect of appointment of, in another State 19* statutory provisions relative to actions by 19S when parties in interest may set up statute 197 right of, to set off debt 198 rules in equity as to claims against decedent's estates 199 allowance of account of, effect 199 n., 86 accounting for new assets 199 n., 87 liable for devastavit by allowing statute to run against estate 197 executor entering on lands of estate is trustee for heirs, unless. . . . 200 n. hold property of estate in trust 58 n., 1, 205 of trustee, have no title to trust property 206 death of person entitled to sue 199a accrual of cause of action before issuance of letters testamentary or of administration 199b death of person liable in general 199c ( 1 ) effect of administration of estate of decedent or want thereof.. 199c (2) death of person jointly liable. 199c(3> death after commencement of action 199c (4)| Express Trusts. See Tetjsts. F. Factors. See Agents. False Imprisonment. ^ statute begins to run, when 178 Federal Courts. See United States. Federal Statute. effect of, in State courts 12a(3> Feme Covert. See Married Woman. Fence. to evidence adverse possession, must be substantial 255, 257 must extend around the whole lot, when 257 built merely for convenience does not show ownership 257 not sufficient evidence of possession, of itself 257 Fines. with proclamation, effect of, and to what applied 2 n. 1722 Iotjex. Vol. 1 ends with. § 140. Vol. 2 begins with § 141. Forcible Entry and Detainer. See Keal Pbopeett. Foreclosure. See MOETGAGES; REAL PeOPEBTT. Foreign Corporation. section not within the statute 250 Foreign Judgment. what are 30 simple contract debt, when 30 rules in different States, as to 8 n., 8, 30, 31 only prima facie evidence of debt, when 30 See Jttdgments. Foreign Statute. when may bar a domestic claim 8 n., 10, 23 n., 55 when may be enforced 149 n., 80 Forged. instrument, when statute begins to run on 143 Fractions of Days. when reckoned. See CoMPTTTATioN or Time. Fraud. equity will relieve against, when action at law is barred 58n. in cases of trust 60 n., 93 at law, in some States, statute runs only from discovery of 58 this does not apply to negligence 289 n. in actions against executors, statute runs from commission of, unless* the fraud was that of executor himself 58 actions for, against sureties of administrator must be commenced, when 58 by attorney in conceding fact of collection, effect 18, 122 fraudulent representations, statute runs on, when 155 property obtained by 158 in dealing with lunatic's estate 239 n., 44 concealment of conversion, etc., effect upon statute.... 13 n., 34, 59 n., 68, 184 n. on part of mortgagee, effect of 231 effect of, in suspending the statute 274-276 statutory provisions as to 21 n., 91, 274 equitable rule in case of, concealed 275 Ihdex. 1723 Vol. 1 ends with § 140. "Vol. 2 b«gins with § 141. Fraud — Continued. section actual and constructive 276 n., 43 statutory provisions as to 274 equitable rule in cases of concealed fraud 275 instances in which the statute will not run until fraud is discovered. 276 as ground of relief, in general 276a(l ) in obtaining possession of or title to property 276a (2) cancellation of instrument 276a ( 3 ) discovery of, in general 276b ( 1 ) what constitutes cause for relief on ground of 276b(2) in obtaining possession of or title to property 276b(3) in obtaining judgment 276b ( 4 ) action for deceit 276b(5) in sale of property 276b ( 6 ) of person acting in official or fiduciary capacity 276b (7) of agent or attorney 276b(8) actions to open account or settlement 276b { 9 ) cancellation of instraments 276b( 10) diligence in discovering fraud 276b(ll) what constitutes discovery of 276b( 12) constructive notice of 276b ( 13 ) concealment of cause of action in general 276f ( 1 ) what constitutes concealment 276f (2) concealment by agent or third person 276f (3) as a defense 284a (2 ) Fraudulent Concealment. See Feaui). Fraudulent Representations. See Fraud. "From" and "After." See Computation of Time; Days. G. Government. in actions against, courts bound to take notice of statute, when . . 7 n. ; see 62 n., 55 adverse possession against 52, 254 n., 9, 258 n., 94 limitation as against, or ofScer thereof. 52a, 53b(2) Grant. from State may be presumed, when 52 statute applies to equitable right when it would operate against a . . 58 n. 1724 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Ground Rent. section presumed to have been paid, when 172 Guarantors. who are 146 statute begins to run for or against, when 146, 151, 154 n., .26 as to separate advances 20 n., 89 distinction between contingent and absolute 146 payments by obligor do not afifect 41 n., 7 acknowledgment by part payment 116b (3) Guardians. statute begins to run in favor of, when 163 in possession of estate of ward, holds it in trust for 204 H. Heir. statute not suspended in favor of, because right to sue is in adminis- trator 6 disability of, does not suspend statute when it had begun to run dur- ing life of ancestor 6 may avail themselves of statute, when 41 statute begins to run for or against alien, when 161 acknowledgment by part payment 116b(6) Henry VIII. statute of, gave first relief against stale claims 2 History. of limitation acts 2 Husband and Wife. adverse possession between 265 n., 1 tacking possessions of 271 payment by husband, effect. See Mabeied Woman. acknowledgments by 81d(4) by part payment 116b(5) I. Ignorance. of cause of action, in general 276c ( 1} want of diligence of person entitled to sue 276c (2) computation of period of limitation 276c ( 1 ) , 276c ( 2 ) Iotdex. > 1725 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Imprisonment. See Disabilities. Incumbrances. sectioit agreement to pay, statute runs on, when 165 acknowledgments by parties to, or their successors in interest. . . 81d(6) by part payment 116b(8) Indebitatus Assumpsit. remedy of surety against principal 145 See Assumpsit. Lidemnity. contracts of, what are, and when statute rims on 146 Indorsement. on note, at time of making, requesting indulgence if not paid at ma- turity, effect of 70 n. of payment on note 41 n., 7, 97 n., 13, 105 n., 67 liability on, not afifeeted by maker's acknowledgment. ... 97 n., 14, 103 n. 54, 134 n., 80 when statute begins to run against indorser 145 on notes and other instruments, as acknowledgment by part pay- ment 116f Indorsers. acknowledgment by part payment 116b(3) Infancy. what constitutes ^ 237 See Disabilities. Injunction. preventing the bringing of an action at law, does not suspend stat- ute, unless 6 n., 243 statutory provision as to, in certain States... 243 application for, does not suspend the statute 243 only suspended while injunction is actually in force 6 u., 243 See Disabilities; Pendency of Legal Pkoceedings. Insane Persons. statute does not run against, imtil sanity is restored 239 See Disabilities. Insolvency. effect on the statute 21 n., 5, 46, 86 n., 22 debtor's part payment, as a preference 101 n., 36 1Y26 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Insolvency — Continued. section discharge iinder, in one State not binding in another 20 n. See Bankbuptoy; Receivee. pendency of proceedings in 253g Instalments. money payable by, statute begins to rim on, when 151 mortgage payable by, statute begins to run, when 224 Instruments for Pa3mient of Money. limitations applicable to actions on, in general 57g(l) what constitutes 57g ( 2 ) Insurance Policies. limitations in, efifect of 42-47, 289 n. may be waived 42, 51 n., 35 what will excuse delay 42 when claim arises under 42-45 Insurrection. States in. See Rebellion; Wab. Interest. payment of, revives principal, when 32 n., 18, 68 n. and n., 31, 80 and n., 99, 105 warrants for 127 See Coupons. payment of, as acknowledgment 116c(3) Inventory. inserting debt in, effect of. See Acknowledgment. J. James I. statute of, took place of all others 2 rights of crown barred by, when 2 n. statute of, embraces simple contracts 16, 20 Joint Debtors. acknowledgments by 81d (2 ) by part payment - 116b (2) payment by one, effect 171 Ikdex. 1Y27 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Joint Tenants. effect of disability of one. See Tenants in Common. Judgment. section merger of cause of action in 21 n.j 12, 30 n., 6 of inferior court, debt lies for 25 when barred • 21 n., 1'5 specialties, when 30 effect on, of issue of execution 30 n., 4 proceedings in equity to set aside, for fraud, statute applied 58 n. payment on, for part of debt, effect of 101 and n., 37 payment of costs does not remove the statute bar 97 n. confessed, clerk to assess, statute begins to run on, when 119 n. presumed to have been paid, when 172 agreement to pay, effect of statute upon 20 n., 55 municipal assessments, treated as 172 n. See Execution. discovery of fraud in obtaining 276b (4) Judgments. limitations applicable to actions on 57g(ll) Judicial Admissions. as acknowledgment of debt 81e(3) Judicial Process. when action is treated as commenced 289 statutory provisions as to 290 issue of writ suspends statute, when 289, 291 how kept on foot 290, 291 date of writ not conclusive 291 filing claim before commissioners of estate, effect of 292 pleading matter in set-off 292 mistaken remedy, effect of 293 when plaintiff becomes nonsuit 293 abatement of suit, judgment reversed, or suit dismissed, effect. . 293, 296 amendment of process, effect of 183 n., 49', 294 bringing in new parties 294 bill in equity does not suspend 295 Judicial Process and Proceedings. mode of computation of time limited 297 proceedings constituting commencement of action in general . . . 298 ( 1 ) filing pleadings 298 (2) issuance and service of process 299(1) -299 (6) 1728 IiTOEX. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Judicial Process and Proceedings — Continued. section issuance of process 299 ( 1 ) delivery of process to officer 299 (2) service of process 299 ( 3 ) service on part of defendants 299 (4) substituted service 299 (5) subsequent, alias, or pluries process 299 (6) want oi jurisdiction , 300 defects as to parties in general 301 ( 1 ) amendment of defects 301 (2) defects or irregularities in process or service 302 defects or irregularities in pleadings or other proceedings 303 intervention or bringing in new parties 304 substitution of parties 305 effect as to persons not parties i 306 amendment of pleadings in general 307 ( 1 ) amendment restating original cause of action 307 (2) amendment introducing new cause of action 307(3) new action after dismissal, or nonsuit, or failure of former action in general 308 ( 1 ) nature, or form, or identity of actions or proceedings 308(2) abatement or abandonment of former action 308 (3) dismissal or nonsuit in general 308 (4) new action in different forum 308 (5) failure of action for want of jurisdiction 308 (6) , failure for defects as to parties 308(7) failure of action for want of, or defects in, process or service thereof 308(8) failure of action for defects in pleading 308(9) identity of, or change in, parties 308 ( 10) decisions on review 308(11) action on set-off, or counterclaim, or cause of action alleged as a defense 308(12) civil proceedings other than actions in general 309 presentation of claim against estate of deceased 310 presentation of claim against estate of insolvent or bankrupt 311 proceedings in other court or tribunal 312 excuses for delay 313 Jury- question whether acknowledgment was made or not, is for 66 n. whether it relates to a particular debt 68 what question relating to acknowledgments are for 68 questions for, relating to part payment 109 as to appropriation of HO Index. 1V29 Vol. 1 ends with § 140. Vol. 2 begins with § 141. L. Laches. section in admiralty 27 in Federal courts 27, 40a, n., 3 not imputable to State 52 not applicable at law 60 n., 86 party may be held guilty of, in equity, where action at law is not barred 27, 58-60 gross, party guilty of, equity will not relieve 27, 59, 62 excused, when 60, 61 in cases of fraud or trust 59 n., 68, 60 n., 93 as a defense 200 n., 6 distinction between, and acquiescence 62 in foreclosure 222 n., 19 See Acquiescence; Fbattd; Trusts. Land. title to, acquired by adverse possession, cannot be invalidated by subsequent repeal of or change in the statute 14 action to subject testator's, to payment of debts, barred, when 58 power of Probate Court to direct sale of, within equity of statute. . 58 n. action to recover for, taken under legislative proceedings, barred . . 58 n. See Adverse Possession. Xandlord and Tenant. tenant cannot deny landlord's title 265 effect of tenant's possession 265 n., 1 tacking possessions of 271 n., 26 exceptions to the rule 265 n. Leases. specialties, when 29 Legacy. statute applies to, when 19, 40 assumpsit lies to recover, when 33 when statute begins to run against 35 presumption of payment of, arises when 40, 199 presumed to have been paid, when 172 not within the statute, unless 199 rule when real estate is charged with payment of 199 n. lapse of time does not raise such presumption as to support de- murrer to bill for 199 Legal Memory. See Memory. 109 1Y30 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Lex Fori. SECTION prevails as to limitations, unless statute otherwise provides S, statute only relates to remedy In., 1, 8 n. situs of contract does not control remedy 8, 11 n., 31 distinction when statute destroys both the remedy and right 8 n. when right is created and limited by statute 1 n., 1, 8 n., & Lex Loci Contractus. prevails, when 8 n., 9, 11 u., 31 Lex Rei Sitae. prevails as to realty 8, 14 as to personal actions, when 8 n., 10 when right is created and limited by statute 8 n. Lien. vendor's statute applies to 20 by statute, for simple contract debt not barred when debt is 21 given by law, statute begins to run on, when 170, 221 n., 1 attorney's, remains, though debt is barred 222 n. generally 3 n., 29, 222 mortgage, remains valid, although debt is barred 222, 234 how mortgagee's rights may be defeated 222 u. See Equitable Lien. for purchase-money of land, distinction between, and mortgage 232 exists, though debt is barred 232, 236 u. See Mobtgaqe; Pledge; Vendor's Lien. Life Tenants. acknowledgment by part payment 116b (6) Limitations. statutes of, what are 1 illustrations of distinctions between, and restrictory 1 distinction between, and prescription 1 n. history and origin of , 2 none at common law 2, 15 except by a fine and proclamation 2 n. supplied by presumptions in certain cases 2 n. and by wager of law ■ 2 abuses from stale demands led to adoption of 2 periods fixed from which they ran 2 none in Stat. James I. expressly, as to assumpsit 2 n. nature of 1 n., 4 now regarded as statutes of repose 1 n., 4 principles on which founded 6. Index. 1Y31 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Limitations — Continued. section lapse of statutory period raises no presumption as to payment 5 not suspended, having commenced to run, except 6 by death of debtor 6 by injunction 6 n. by war 6 n., 43, 242 courts cannot make exceptions to 6 statute must be pleaded and when 7 may be waived 7, 41, 51 will not be regarded, unless pleaded 7 plaintiff must reply to plea 7 when lex loci prevails 8 when statute gives title to land, lex rei sitae controls 8 when statute gives and limits right 9 when title passes to chattels under statute, rule 10 constitutionality of statutes of 4 n., 11, 12 See CONSTITUTIONALITT. affect only the remedy 1 n., 1, 11, 20, 21 statute may be changed before it has run on existing claim 11 may shorten or lengthen period of 11 n. so by parties' agreement, where 41 n., 76 n. when changes in, to be construed as prospective 11 reasonable time to bring action in, when necessary 11 exception to rules as to power of legislature to change period of limitation 11 what statute governs 12 See Change in Statute; Fobeign Statute. title to land acquired by, cannot be divested by subsequent change in statute 14 apply to assumpsit upon simple contracts under Stat. James 1 16-19 rule as to mortgages when note is barred 21 as to pledges, when debt is barred 21 n. action of assumpsit for tort, not barred, because tort is 21 in the Federal courts 27, 40a and n., 3 statute of, a personal privilege 41 may be waived 7, 41, 51 when his privies may set it up 41 cestui que trust may set it up, when 41 heirs, when 41 party may, by agreement, be estopped from relying on 42 not by mere equitable estoppel 42 by contract 42-47 in insurance policies 42-47 what will excuse 42-51 who may set up the statute 42-53 1732 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Limitations — Continued. section cannot be set up against the State, unless 42-53 State not bound by 52 general government not bound by,' except when title to debt is derived from individual 52, 254 n., 9, 258 n., 94 when stockholder in corporation 52 municipal corporations and counties, subj ect to 53 available for and against whom 41-53e persons as against whom available 51a as against Government, State, or oflScer thereof 52a as against county or officers thereof 53a ( 1 ) as against municipality or officers thereof 53a { 2 ) as against public corporations or officers thereof 53a (3) persons who may rely on, in general 53b ( 1 ) Government, municipality, or officers thereof 53b ( 2 ) estoppel to rely on 5'ir- agreements as to period of o3d agreements waiving 53e computation of time under statute of 54-57 See Computation of Time. act to be done after certain day, rule as to whether last day to be excluded or included 54 act to be done by a, certain day, rule as to 56 applicable to particular actions 1 57a-571 limitation as affected by nature or form of remedy in general 57a effect, on limitation, of election between remedies 57b particular forms of action 57c recovery of personal property 57d contracts in general 57e ( 1 ) construction of contract 57e ( 2 ) employment 57e ( 3 ) carriage 57e ( 4 ) liability of corporate stockholders 57e ( 5 ) contract for reimbursement 57e(6) written contracts in general 57f(l) what constitutes written contract in general 57f (2) subscription 57f ( 3 ) contract of sale . .' 57f ( 4 ) corporate charter 57f ( 5 ) covenants of warranty 57f ( 6 ) instruments for payment of money in general 57g( 1 ) what constitutes instrument for payment of money 57g ( 2 ) bill or note in general 57g ( 3 ) purchase-money notes 57g ( 4 ) indorsement' of bill or note 57g ( 5 ) Index. 1733 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Limitations — Continued. section receipt for money with promise to repay 57g(6) attested writings 57g(7) municipal or county warrants 57g ( 8 ) bankbook 57g(9) mortgage or security 57g( 10) judgment 57g(ll) agreement of attorney to collect claim and accotmt for the pro- ceeds 57g(12) offer of reward 57g(13) oral contracts, express 57h implied contracts and debts and obligations not evidenced by writ- ing . 57i ( 1 ) implied contract growing out of breach of written contract 57i(2) liabilities for acts or omissions in official capacity 57 j civil proceedings other than actions 57k recent English decisions 571 adoption of statute of, in equity 58-63 See Equity. operation and effect of bar by 63a-63i operation as to rights or remedies in general 63a nature and extent of bar 63b bar of debt as affecting security in general 63c ( 1 ) mortgage or deed as security 63c { 2 ) vendor's lien 63c ( 3 ) bar of security as affecting debt 63d effect as to remedies in other states 63e actions and other remedies barred 63f persons to whom bar is available in general 63g( 1 ) personal nature of defense 63g ( 2 ) persons barred in general 63h ( 1 ) effect on beneficiary of limitations against trustee or person acting in representative capacity 63h (2) waiver of bar 63i statute does not extinguish the debt 65 old debt, good consideration for new promise 65 unqualified acknowledgment raises implied promise to pay 65 Limitations ApplicaMe. specialties 176a(l)-176a(8) torts quasi e contractu 187a-187c actions for recovery of real property 272a(l)-272a(9) accounts 277-280a(4) set-offs 281a counterclaims ' 281a 1734 IwDEx. Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Limitations Applicable — Continued. section cross-actiona 281a defenses in general 284a ( 1 ) fraud as a defense 284a(2) recovery of personal property 57d contracts in general 57e ( 1 ) -57e ( 6 ) written contracts 57f (l)-57f (6) instruments for payment of money 57g ( 1 ) -57g ( 13 ) oral contracts 57'li implied contracts 57i(l), 57i(2) to particular actions 57a-571 liabilities for acts or omissions in official capacity 57 j civil proceedings other than actions 57k equitable actions and remedies 62a See AocBUAt of Right of Action oe Defense; Computation of Peeiod OP Limitation. Lunatic. See Insane Pebson. M. Mandamus. to enforce a judgment, effect 30 n., 1* Marriage. action to annul, barred by statute in six years, in New York 58 n. Married Women. within the disabilities of the statute, when 240 coverture comes within the words " persons under legal disabilities " 237 and note, 240 rule where vrife can sue or be sued 79 n., 76, 240 See DiSABiLmES. Memory. legal, dates from time of Richard 1 2 n. Merchants' Accounts. what are, and statutory provisions as to 279 See Accounts. Mining. effect of statute in 178 n. Mistake. money paid by, statute runs from date of payment 58 n., 152 Index. 1735 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Mistake — Continued. section when equity will give relief for, when statute has run. , 58 n., 110 n., 41 276 n. statute runs from date of 119 ". possession of wrong land by, eflfect of 263 as to remedy, eflfect 293 as ground for relief, in general 276d ( 1 ) discovery of 276d (2) Money. lent on deposit of title-deeds recoverable in assumpsit 16 cannot, by paying debt already barred, charge principal therefor .... 145 rule when there are two or more 145 paid for another, statute begins to run on, when 147 payable by instalments, statute begins to run on, when 151 paid by mistake 58 n., 152, 276 n. paid where consideration has failed 153 had and received 20 n., 55, 144, 158 n., 32 Month. meaning of lunar or calendar 55, 125 and n., 27 in contracts, how construed ■ 125 n. Mortgage. limitations applicable to actions on, or security 57g( 10) operation and effect of limitation on, or deed as security 63c(2) Mortgages. what English statute applies to 3 n., 29 not barred because note is 21 n. in New Hampshire, note not barred until mortgage is 21 n. in New York, a deficiency judgment must be perfected before statute can run 30 n., 8 distinction between pawn and mortgage 21 n., 233 redemption of, when barred 58, 222 n., 37 foreclosure of, when barred 222 n., 19, 223 n., 47, 224 n., 64 of personal property 21 n., 3, 58 remedy on, may be pursued in equity although debt is barred 58 n. but not when mortgage is barred 58 action to annul, barred, when 58 n. equitable, action for accounting under, barred, when 59 n. recital of debt in, effect of 92 presumed to have been paid, when 172 n. not barred ' because note is . , 222 rule that discharge of debt discharges mortgage does not apply. . . 222 n. 1Y36 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Mortgagor and Mortgagee. section relation of, to property 221 distinction between the debt and the mortgage 222 limitations fixed in the several States 223 when statute begins to run in favor of, or against the mortgagor. . . . 224 right of redemption barred, when 225 effect of acknowledgment of mortgagor's rights by mortgagee. . 225, 235 how may be shown, and by what 235 mortgagee in possession holds adversely, when 225, 235 how it may cease to be adverse 235 when mortgagor is in possession of part of the premises 226 liability of mortgagee in possession 227, 235 Welsh mortgages, what are, and operation of statute on 228 presumption of payment 222 n., 229 part payment, effect of 99 n., 28, 229 presumption, how rebutted 222 n., 229 acknowledgment or new promise, effect of 222 n., 230 fraud on part of mortgagee, effect of 231 distinction between mortgage and lien for purchase-money 2S2 lien exists though debt is barred 232 pledge and mortgage, distinction between 233 discharge of mortgage debt, effect of 155 n., 222, 234 absolute conveyance treated as mortgage, when 236 may be shown to have been given as mortgage by parol evidence .... 236 mortgage not barred because debt is 222 note is simple contract, and mortgage a specialty, and statute applies to each distinctively 222 in some States, mortgage falls with the debt 222 in New Hampshire, note is kept on foot during life of mortgage .... 223 statutory provisions relating to 223 equity adopts statute by analogy in case of mortgages 2^5 mortgagee's possession, to defeat right of mortgagor to redeem, must be adverse 225 when mortgage is payable by instalments 224 when mortgagee enters under agreement to pay himself from rents and profits, statute does not run against the mortgagor 224 Municipal Assessments. presumed to be paid, when 172 n. treated as judgments 172 n. Municipal Bonds. legislature no power to shorten limitation upon, when II Municipal Corporations. statute may be set by or against 53 IlTDBX. 1737 Vol. 1 ends witli § 140. Vol. 2 begins with § 141. Municipal Corporations — Continued. section municipal orders, must be presented for payment before statute runs 142 n., 17 proceedings by, or ofBeers, as acknowledgment of debt 81e(2) Municipal Warrants. See Waeeants. Municipality. limitation as against, or officers thereof 53a(2) government, or officers thereof 53b{2) Mutual Accounts. statutory provisions as to 277 what are 278, 278a merchants' accounts 279 stated accounts 280, 280a(3) necessity for mutuality of 280c ( 1 ) effect of mutuality 280c ( 2 ) closing accounts 280c ( 3 ) See Accounts. N. Negligence. when statute begins to run against actions for. . 179, 200 n., 9, 289 n. 4 rule when person is liable over for 179 in actions against public officers for 179 in examining titles 179 n., 20, 289 n. New Promise. offer operates as, when 68 n. conditional, rule as to 68 to settle, effect of 68 n. how may be established 68 n. to settle, effect 68, notes, 70 n., 71 n., 72 n. to pay, if debtor owes, but disclaimer, effect of 68 n. must be made before action brought 68 n. express, excludes all implied 68, 69 to pay in specific articles, effect of 69 n. not to be extended by inference 69 n. general, sufficient, when 69 n. not to be implied from acknowledgments, when 69 from unqualified acknowledgment, may be implied 68, 69 to raise promise, acknowledgment must be unqualified 68 n., 1 explicit 68 n., 1 to pay all notes produced, but denying that any exist 70 n. 1738 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. New Promise — Continued. section to attend to debt, effect of 70 n., 72 to examine and adjust 70 n. to pay when able 70 n. not to plead the statute, eflfeet of 41 n., 1, 42 n., 17, 76, 276 n. conditional, effect of 77 condition must be accepted 77, notes to pay when able 77 to pay as soon as possible 77 n. to pay as soon as the debtor gets the money - 77 as soon as money can be obtained from a certain source 77 prove it by A. and I will pay 77 to pay if a certain business does not fail 77 promise to pay if interest is thrown off, effect of , 77 n. to pay in Confederate money , 77 to pay "if I can" 77 hope to pay 77 n., 78 to pay less than is due 78 to give a certain article , 78 made on Sunday, effect of Si See Acknowledgment. New Promise in Writing. what sufficient 77 n., 82-95 effect of statutes requiring 84 must clearly refer to debt in suit 86 distinction between absolute and qualified 87 amount need not be stated 88 direction in will to pay , , 90 debts due from corporations, who may make , 91 entry of debt in deeds, schedules, etc 92 question of sufficiency of, for the court 93 must be signed by the debtor 94 must bind debtor personally 95 conditional, effect of 95 See Acknowledgment. Nonresidence. See Disabilities. Notes. do not discharge debt for which given, unless 16 n. under seal, specialty debts 29 surrender and renewal of, effect 35 n., 53 payable in one " month," calendar month is treated as intended 55 Index. 11 S9 Vol. 1 ends with § 140. Vol. 2 begins with § 141. notes — Continued. , section executed for debt, but not accepted by creditor, will not renew the debt 85 given up to debtor, effect of 85 n. part payment by, effect of ^^^ indorsements on, effect of 1-^^ evidence of part payment of 115 n., 116 entitled to grace, rule as to when statute begins to run 118 n. when given without interest, but separate instrument is executed agreeing to pay 118 n. payable in labor, statute begins to run on, when 119 n. bill of exchange accepted after maturity, statute begins to run, when. 131 payable by instalments, statute begins to run, when '126 when demand is necessary to put statute in motion 124, 125 bills payable on " sight " 125 payable " any time within two years " 125 in specific articles , 128 presentment of bill for acceptance, etc., rules relating to 125 n. subject to assessment 129 bills payable at particular place 130 ■ accepted after maturity 131 subject to grace 132 payable upon happening of a contingency 133 action against indorser 134 against acceptor 135 against drawer 136 goods sold on credit to be paid by note 137 bank bills 138 witnessed, rules relating to 139 under seal, presumed to have been paid, when 172 though secured by mortgage, still remains a simple contract 222 barred at law, mortgage given to secure, still remains enforceable. . . 222 See CHECK; Indorsement; Payment. Notice. when required, effect on the statute 1 n., 13 Nuisances. every continuance of, gives new cause of action 180 rule, when of a permanent character 180 prescription for 181, 182 Nullum Tempus Occurrit Regi. municipal corporations not within the maxim 53 applies to general and State government, unless. . 52, 254 n., 9, 258 u., 94 See Government; Limitations; State. 1740 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. 0. Obligation. section of contract, what is 11 Offer. to pay in specific property, effect of , 75 Offer of Reward, limitations applicable to actions on 57g ( 13 ) OfScers. for and against whom limitation is available 52a-53b ( 2 ) OfScial Bonds. effect of statute upon 52 n., 52 Offset. See Set-off. Operation. retroactive, of statutes 12b provisions for existing causes of action or defenses 12c Operation and Effect. of bar by limitation 63a-63i aa to rights or remedies in general 63a nature and extent of bar 63b bar of debt as affecting security in general 63c ( 1 ) mortgage or deed as security 63c ( 2 ) vendor's lien 63c ( 3 ) bar of security as affecting debt 63d effect as to remedies in other states 63e actions and other remedies barred , 63f persons to whom bar is available in general 63g ( 1 ) personal nature of defense 63g(2) persons barred in general, 63h ( 1 ) effect on beneficiary of limitations against trustee or person B/ctiag in representative capacity 63h(2) waiver of bar 63i Option. effect on statute 118 n., 29 Orders. town or city, within statute 19 Orders of Court. See CoTJET. Index. 1741 Vol. 1 ends with § 140. Vol. 2 begins with § 141. P. Parol. SECTION contracts 47 Parties. new, cited in, statute runs from time when cited 7 n., 294 defects as to, in general 301(1) amendment of defects as to 301 ( 2 ) intervention or bringing in new 304 substitution of 305 effect as to persons not 306 failure of action for defects as to 308 ( 7 ) identity of, or change in 308 ( 10 ) Partition. See Beat. Pbopektt. Partners. action of account by 24 assumpsit lies between, to recover balance, when 35 what statute applies - 35 payment of dividend under commission in bankruptcy against one, effect of upon statute as to others 58 n. equity will not settle rights between, where party has been guilty of laches 60, notes trustees for each other 201 fraud of one, effect 158 n., 32 effect of acknowledgment by one 171, 2H acknowledgments by 81d(3) by part payment i 116b (4) Partnership. accounts, limitations applicable 280a(4) accrual of right of action 280b ( 4 ) Part Payment. indorsement upon note, not sufficient evidence of 68 n. goods delivered, to be sold and applied as, effect of 68 n. payment of interest is 68 n. of principal, does not revive interest 68 n. is acknowledgment of whole debt 68 n., 97 n., 14 in specific property, effect of 75 effect of 96 provisions of 9 Geo. IV 96 rule adopted under 96 1742 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Part Payment — Continued. section of principal or interest 96, 105 raises implied promise to pay balance ; 96 n. how must be made 97 intended as in full, is not ; 97 must be on account of the debt in suit , 97 principal upon which it removes the statute bar 97 n., 104 when not operative as 97 essential requisites of 97 n., 104 by whom must be made 97 n., 99-101 general payment on account of greater debt, is, when 97 must be unaccompanied by any words which repel admission that more is due 98 naked payment, effect of . . . , 98, 100, 105 when there are two accounts, effect of 98 how intention as to application of, may be shown 98 burden of establishing, is upon plaintiff 98 by representative of debtor, what must be shown 99, 101, 102 must be voluntary and authorized 101 by assignee, effect of 101 of judgment 101 of costs on judgment 97 n. of dividend under order of court 101 compulsory, effect of ■ 101 by administrator under decree of court 101 by husband, for wife 285 n., 4 by third person, who has agreed to pay the debt 101 by sale of collaterals, by creditor, effect of 101 must be made to creditor or his authorized agent 103 ratification of payment to agent, effect of 103 before statute has run, effect of 105 on indeterminate debt '105 rebuttal of inference of promise from 106 on debt payable by instalments, effect of 105 n. payment into court, effect of 107 identity of debt must be established 108 questions for jury, relating to 109 appropriation of, general rules relating to 110 appropriation where there are several distinct debts 110 right of debtor to direct 110 when creditor may apply 110 when court will apply it 110 when may be applied to debt barred 110 when may be applied to take several debts out of statute 110 oral proof of 1 H IlTDEX. 1Y43 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Part Payment — Continued. SECTioif need not be in money 1^^ test as to what amounts to 113 by bill or note 114 indorsements of, on notes, etc., effect of 115 evidence of • • 115, 116 persons to whom made 116a persons by whom made in general 116b (1) joint and several obligations 116b (2) sureties, indorsers, and guarantors 116b(3) by partners 116b (4) by husband and wife 116b (5) by executor or administrator 116b (6) by heirs, devisees, or life tenants 116b (6) by assignee, receiver, or trustee 116b ( 7 ) by parties to incumbrance and their successors in interest 116b (8) sufficiency of, in general 116c ( 1 ) admission or denial of liability and payment by way of compromise and settlement 116c(2) payment of interest 116c(3> application of payments 116c(4) payments from proceeds of security 116c{5) security and realization thereon 116c ( 5 ) medium of payment 116d entry of credit in account 116e indorsements on notes and other instruments 116f ratification of unauthorized payments 116g operation and effect of, in general 116h ( 1 ) payment on account 116h(2) renewal or revival of cause of action 116h(3) effect of statute requiring written acknowledgment or promise.. 116h(4) time of making 116h(5) accrual of right of action and limitations 116h(6) revival of debt as revival of lien or other security 116i Patents. for inventions, application of statute to 40a for land 40a, n., 3, 52 n., 55 Pawn. See Fledge. Pawnor. right of, to redeem pledge '. 22 n. executor of, may redeem 22 n. 1744 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Payment. section plea of, as to award 15 n., 1 by mistake, statute runs upon, from date of 58 n. equity will not give relief for, after statute has run 58 n. by obligor does not affect guarantor 41 n., 7 indorsement of, upon note, not sufficient evidence of 68 n., 115 goods delivered to be sold and applied on debt, effect of 68 n. of interest, effect of 68 n. of principal does not revive interest 68 n. of money into court does not revive debt 68 n. statement that debt has been paid in certain way, not acknowl- edgment of, though it was not so paid 68 n. appropriation of 110 rules relating to 110 See Pabt Payment. Penalty. given by statute, debt lies for, when 25 Pendency of Legal Proceedings. computation of period of limitation ' 253a { 1 ) -253 j action or other proceeding, in general 253a ( 1) action or different cause or in different forum 253a(2) appeal 253b suspension or stay, in general 253o supersedeas or stay of proceedings 253d arbitration or reference 253e property in custody of the law 253f proceedings under assignment for creditors 253g in solvency 253g in bankruptcy 253g injunction 253h stay laws 253i suspension of statute of limitations 253j Personal Privilege. limitation plea a 41 Personal Property. limitations applicable to actions for the recovery of 57d Persons. as against whom limitation is available 51a who may rely on limitations 53b ( 1 ) Index. 1T45 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Readings. section statute must be pleaded by debtor 7 by demurrer or answer 7 and n., 85 diligence required 7 in criminal cases 28 n., 3 plaintiff must reply 7 when new declaration is filed 7 n. when new parties cited in 7 n. when declaration is amended so as to introduce new matter 7 n. when court may take notice of statute without plea 7 n. statute must be replied to counterclaim 7 n. not to set-oflf i 7 n. when courts bound to notice 7 n. statute may be set up by way of answer, when 7 n. when statute may be made available by demurrer 7 how new promise, etc., made available by 81 filing, as commencement of action or other proceeding 292, 298(2) defects or irregularities in 303 amendment of 307(1), 307(2), 307(3) Pledge. of personal property, lien upon, not lost because debt is barred. ... 21, 22 distinction between, and mortgage 21 n., 22 n., 233 how lien is created 21 n. when may be retained for future loans 21 n. when lien cannot be acquired under 21 n. property excepted from the rule 21 n. of property obtained by false pretences, no lien acquired upon. ... 21 n.; see 183 n. lapse of statutory period does not give pledgee title to 22 pledgee may sell 22 rule when he retains or loses it 22, 282 u., 42 rule when no time for redemption is fixed 22 executoi of pledgee bound to deliver on tender of payment by pledgor 22 right to redeem descends to pawnor's representatives 22 n. Possession, title by. See Advebse Possession. fraud in obtaining, of property as ground for relief. 276a(2) discovery of fraud 276b(3) Prescription. distinction between, and limitations 1 n. what requisite to acquire rights by 182 action barred by, when 181 110 1746 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Presumptions. section doctrine of, applied as limitation in certain cases at common law.. 2 n. applied under statutes 2 n. of payment not raised by lapse of statutory period 5 as to payments raised by statutory provisions 21 of payment of legacy cannot arise, when 40 of grant from State, when arises 52 that acknowledgment relates to certain debt, raised, when 68 difference in doctrine 68 n. not all have same force 172 n., 3 as to payment of specialties raised by lapse of time 172 n. equity acts in analogy to the statute 58, 172 n., 229 statutory provisions as to 172 of payment, cannot be rebutted by mere proof of non-payment. . . . 222 ii. of mortgage, admission by mortgagor, rebuts 222 n. that mortgage is paid, arises when and from what 229 how rebutted 229 that mortgage is paid, arises when 229 how overcome 229 n. acknowledgment or new promise by mortgagor, effect of 230 by mortgagee in possession 235 Principal. part payment of, effect of, as to interest 105 Principal and Agent. accounts between 280b (5) Principal Dett. payment of, does not revive interest 68 n. Probate Court. ppwer of, to direct sale of intestate's land, within equity of statute 58 n. statute of limitation as to matters in 6 n., 64 Proceedings. commencement of action or other 297-313 See Commencement op Action oe Othbe Pboceeding. Process. /See Commencement of Action oe Othbe Peoceedinq; JtrDiciAi, Peocess. Promise to Marry. statute begins to run on, when 159 See Notes. Promissory Notes. See Notes. Index. 1747 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Public Corporations. section limitation as against, or officers thereof 53a (3) Purchase Money. equitable actions for recovery of, on failure of title 62a Purchaser. ' of property for benefit of another, holds as trustee 220 Q. Questions for the Jury. See Jtjet. Quiet Enjoyment. statute begins to run on covenants for, when 173 how broken 173 and n., 21 Quieting Title. equitable actions for 62a R. Ratification. of unauthorized payments as an acknowledgment 116g Real Actions. adverse possession and 254-272c See Adveese Possession; Real Peopeett. Real Estate. statute as to 21 n., 8 charge on, statute applicable to, and effect.. 3 n., 29, 16 n., 32 n., 18 See Adverse Possession; Moetgages; Speciaities. Real Property. recovery of, in general, limitations applicable 272a ( 1 ) actions at law in general 272a ( 2 ) equitable actions 272a(3) partition : 272a(4) foreclosure of mortgage or deed for security 272a (5) redemption from mortgage or deed for security 272a (6) title under forced sale 272a(7) establishment of lost deed 272a{8) title to or possession of, in general, accrual of right of action . . 272b ( 1 ) nature of entry or possession 272b(2) title to support action in general 272b(3)' title under forced or judicial sale 272b(4) 1748 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Real Property — Continued. sectioit title or right of parties to mortgage or deed as security 272b (5) rights of heirs and devisees 272b(6) tacking successive possession or right 272b (7) forcible entry and detainer 272b (8) recent English decisions 272c fraud in obtaining possession of or title to, as ground for relief 276a (2) discovery of fraud 276b (3) Rebellion. statute suspended during 6, 242 grounds on which predicated 6 n. Receipt., limitations applicable to actions on, for money with promise to repay 57g(6) Receiver. whether statute runs against 46 and n., 21, 149 n., 80 effect of appointment of 46 acknowledgment by part payment H6b(7) Recitals. of debt in deeds, etc., effect of 80 Recognizances. presumed to have been paid, when 172 Record. action to restore, barred .' 68 n. Recoupment. See Sbt-Ofp. Redemption. of mortgage, statute quiets right of person having right of though not party to foreclosure 58, 225 of personal property pledged 58 Reference. pendency of 253e Reformation. of instruments, equitable actions for 62a Reformatio'n of Contract, action for. See CONTEACT. Index. 1749 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Remainder. bectioit statute does not run against owner of 259 when must enter 259 n. how entry must be made 259 n. effect on, of paying interest 229 n., 12 Remedies. choice of, between covenant and assumpsit, when 35 statute applies according to remedy employed 1 n., 58 n. when debt or assumpsit will lie, statute applicable to remedy chosen applies 58 equity will supply in certain cases when barred at law 63 Renewals. effect on statute 86 n., 2& Rent. specialty debt, when 30 n., 6, 32, 33 meaning of 32 n., 18 Rescission. equitable actions for, of instruments 62a Resulting Trusts. See Teusts. Retroactive Operation. of statutes of limitation 12b Reversioner. See Eemaindeb. Reward. limitations applicable to actions on offer of 57g ( 13) Rewards. debt lies for, when 25 Running of Statute. not suspended, except 6 by death 6 and note by injunction 6 n., 243 by war 6 n., 242 rule in this country as to effect of war 6, 242 intervening disability Q does not begin, until person to sue g ii_ when begins 117 1Y50 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Running of Statute — Continued. section must be party to sue or be sued 117 demand, when necessary to start 118 'starts from first demand, and cannot be started afresh by a second. 118 n. rule in equity, where demand is unreasonably delayed 118 when courts will presume a demand 118 rule when demand is delayed in obedience to an implied provision of the contract 118 as to demands payable in specific articles 118 n. rule when note is payable at sight or on demand 118, 124 rule when payable after sight or demand 118, 125 when note has no date 118 n. note payable " when called for " 118 note payable one day a,f ter date 124 n. note payable one day after a certain event 118 certificate of deposit payable on call 118 n. grace, notes or bills entitled to 118 n. when there is a condition precedent 119 must be a full and perfect right of action 119 n. for work, from time of its completion, when 119 n., 120 for work to be compensated by provision in testator's will 119 n. promise to pay balance 119 n. upon subscriptions to stock payable by assessment 119 n. balance arising from sale of collaterals 119 n., 123 n. debt to be paid upon certain conditions 119 debt to be paid from the avails of a certain sale or business 119 or after the happening of a certain event 119 or the accomplishment of a certain result 119 for reward ofi'ered for arrest and conviction of persons charged with a crime 119 on judgment confessed, for sum to he assessed by clerk 119 n. on note payable in labor 1 19 n. on promise to pay when amount is ascertained 119 where attorney takes debt to collect, upon shares 119 contracts in general 119a ( 1 ) conditional contract H9a (2) indefinite time for performance 119a(3) contract to pay on demand 119a(4) contract to pay after death 119a(5) breach of contract in general 119a ( 6 ) contract of employment ; 119a(7) contract with agent „ 119a(8) contract of sale 119a ( 9 ) guaranty 119a (10) contract of carriage 119a(ll) Index. 1Y51 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Kimning of Statute — Continued. section assumption of debt or mortgage 119a( 12) implied contracts in general 1191> ( 1 ) liability for services rendered 119b{2) liability of agent or attorney for funds ooUeeted 119b(3) funds received on invalid obligation or without authority 119b(4) liability to refund over payment by mistake 119b(5) liability to contribution 119b ( 6 ) implied warranty 119b ( 7 ) usury 119b(8) continuing contracts in general 119c( 1 ) contract of employment or agency in general 119c(2) professional services by attorney 119c(3) serverable contracts and installments in general 119d(l) installments in general ., 119d(2) interest 119d(3) rule as to sei^vices of attorneys 121 when attorney is charged with misfeasance or malfeasance 122 services, when statute begins to run upon claim for 120 rule when employer dies before the services are completed 120 rule when contract is entire \ 120 causes of action in general 122a title to or possession of personal property 122b instruments for payment of money, bills and notes 122o(l) indefinite time for payment 122c ( 2 ) conditional obligations 122c (3 ) bonds 122c ( 4 ) effect of indorsement of note 122e(5) municipal obligations 122o(6) effect of security 122c(7) reimbursement or indemnity from persons ultimately liable, in gen- eral 122d(l) indemnity 122d(2) action by surety against principal 122d (3) action by agent against principal 122d(4) liability for acts or omissions in official capacity, in general... 122e(l) failure to require sufficient bond or security 122e(2) misappropriation of public funds 122e(3) failure to pay over money due in official capacity 122e(4) liabilities created by statute 122f penalties and forfeitures 122o' civil proceedings other than actions 122h recent English decisions 122i in case of agents, factors, etc 123 ■See Agents. 1752 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Running of Statute — Continued. section as to notes, bills, etc 124-14(> See Notes. on coupons and interest warrants 127 on note payable " any time within two years " 124 n. presentment of bill for acceptance, etc., rules relating to 125 n. suspension of statute by agreement of parties 137 against acceptor of bills 135 against indorser '. 134, 145 against drawer 136 bank bills 13S checks 140 on contracts, express or implied 141 on deposits and on certificates of deposit 142 money received by one for use of another 142a money misappropriated 143 on forged or invalid instruments 143a money had and received 144 against sureties 145 on an implied warranty 144a for or against guarantors 146 for money paid for another 147 against actions under enabling acts 148 against stockholders of corporations 149^ stock subscriptions 150 money payable by instalments 151 mistake, money paid by 152 on over-payments 152 failure of consideration 153 against sherifi's for breach of duty 154 fraudulent representations in sale of property 155 when leave of court is necessary to sue 156 orders of court 157 fraud, property obtained by 158 promise to marry 159 for money paid under void contracts , 160 against heirs in certain cases 161 sureties on administrator's bonds 162 against guardians 163 assessments, taxes, etc 164 agreement to pay incumbrances 165 in actions " not herein enumerated " 166, 179 ii., 20 for advances upon property 167 for usurious interest 168 tenants in common of property 169- Index. 1753 Vol. 1 eniis with § 140. Vol. 2 begins with § 141. Running of Statute — Continued. section when the law gives a lien for property sold 170 against co-purchasers, co-sureties, etc 171 on specialties 172-176b(4) See Specialties. torts, quasi e contractu 177-187d (8) See TOBTS. against executors and administrators 188-199c (4) See ExECUTOES and Administbatobs. against trusts and trustees 200-220b(4) See Tbtjsts and Teustees. against mortgagor and mortgagee 221-236 See Moetgagobs and Moetgagees. s. Sabbath. promise or acknowledgment made on, effect of 81 Sale. of property, discovery of fraud 276b(6) Sales. upon order, effect of statute 20 n. fraudulent representations in, statute begins to rim on^ when 155 Schedule. insertion of debt in, effect of 92 See ACKNOWIEDGMENT. Sealed Instruments. are specialties 29 when party may maintain assumpsit on 19 Securities. two for same debt, party may pursue one, though the other is barred 58 n. to be compensated by provision in employer's will, statute does not ' begins to run until his death 119 n. Security. limitations applicable to actions on 57g(10) bar of debt as affecting, in general 63c ( 1 ) mortgage or deed as 63c (2) vendor's lien 63c(3) bar of security as affecting debt 63d Seduction. statute b^ins to run in actions for, when Igg 1754 IlTOEX. Vol. 1 «nds with § 140. Vol. 2 begins with § 141. Services. section statute begins to run upon contracts for, when 120 and n., 33 accounts for, rendered 280b(3) Set-Ofi. statute may be relied on against, without plea 7 n. statute applies to .'19 executor, etc., may, debt barred, due from legatee 198 statute begins to run against, when 281-284 available as simultaneous cross-action 281 bringing of action suspends the statute as to all of the defendant's demands which may be set up in reduction of the principal debt. . 282 recoupment, when, action barred 282 executor may deduct debt due from heir, although barred 283 statutory provisions as to 284 Set-Offs. counterclaims, and cross-actions, limitations applicable 281a counterclaims, and cross-actions, accrual of right of action or de- fense 281b Settle. promise to, does not revive debt 68 u. promise to, when suflElcient 68 n. promise to, effect of 70 n., 72 See Compromise. Settlement. actions to open, on discovery of fraud 276b(9) Sheriff. actions against, within statute 19 statute begins to run against, when, for money collected on execution 154 for money collected on foreclosure proceedings 154 for releasing property from attachment or levy 154 for an escape 154 for an insufBcient return 154 for attaching insufficient property 154 for taking insufficient bail 164 for taking insufficient receiptors 154 for failure to return property to debtor after attachment is dis- solved 154 Simple Contracts. no limitation of, at common law 15 embraced in Stat. James I , 15 Index. 1755 Vol. 1 ends with § 140. "Vol. 2 begins with § 141. Simple Contracts — Continued. section charged on land 3 n., 29, 16 n., 16, 32 n., 18 deposits with bankers 17 special deposits 18 assumpsit lies upon • 20 lies for tort, when 21 pledges, pledgee does not acquire title to, by lapse of time 22, 233 clauses in statutes embracing 23 account 24 debt 25 covenant 26 suits in admiralty. 27 See Contracts. Signature. acknowledgment by, when to be personal 82 n., 1 Societies. funds of, vested in trustees, statute runs on, when 217 Special Deposit. See Deposit. Specialties. covenant, usual remedy upon 26 debt lies for, when 25 all instruments under seal are 29, 172 debts of record 29 presumption as to payment of, raised by lapse of time 29 n. what are 29-40 judgments .t 30 rent, actions for 32 avowry for rent 33 foreign judgments 34 mixed claims 35 instances of 35 liability created by statute 36 statutory provisions relating to 31, 37 when concurrent remedy is given for 38 test as to whether specialty or not 39 action for distributive share of estate 40 patents, application of statute to 40a notes under seal 29, 172 deeds, leases, bonds 29 statute, rights created by 38 remedies upon, may be in assumpsit, when 35 1756 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Specialties — Continued. section distinction between action founded upon, and one which is only an incident of 35 Special statutory provisions relating to 37 test for determining whether statute creates specialty debt or not. . . . 39 statute begins to run on, when 172 presumption as to payment of 172 n. covenants for quiet enjoyment 173 bonds , 29, 172 n., 175 covenants of warranty 173 n., 174 legacies, presumption as to payment of 172 recognizances, presumption as to payment of 172 ground rent, presumption as to payment of 172 lien by law, statute begins to run on, when 170 sealed instruments in general, limitations applicable 176a(l) what constitutes instrument under seal in general 176a(2) mortgage 176a(3) sealed note or indorsement thereon 176a (4) coupons 176a (5 > convenants in conveyance 176a ( 6 > bonds in general 176a ( 7 > official bonds 176a(8) covenants and conditions in general, accrual of right of action.. 176b (1) covenants in sale or conveyance 176b(2> bond or contract of suretyship in general 176b (3) guardian's bond 176b (4> Specific Performance. equitable actions for 62a barred when under New York statute 140 • generally 141 right of, barred, when 225 what acts of mortgagee keep the right on foot 222 n., 225, 229 enforcing by, a title gained by adverse possession 260 n., 66 See MOBTGAGEE AND MoETGAGOK. Specific Property. offer to pay in, effect of 75 notes payable in, statute begins to run, when 128 Stale Demands. wager of law operated as check upon 2 abuses from, led to adoption of statutes of limitation 2 discouraged in admiralty 27 may be regarded as, though statute has not run at law 58, 59 reasonable excuse for delay saves claim from being treated as 59 equity discourages 60 Index. 1757 Vol. 1 ends with § 140. Vol. 2 begins with § 141. State. statute does not apply against, unless 52 title to land of, not acquired by adverse possession. . 52 n., 254 n., 9, 258 n. 79 controversies between States 52 n. as to effect of tnillum tempus act in England, see 52 and note may avail itself of statute 52 n. when grant from, may be presumed 62 when it has derivative title to debt, rule 52 n. rule as to, in England, see Lambert v. Taylor 52 n. laches not imputable to 52 cannot impose limitations against the general government 52 n. when it sues jointly with an individual 52 n. debts due to, not within the statute 52 actions by, to recover lands, not barred 52 statute may be set up against, when it seeks to enforce debt due to corporation or individual 52 limitation as against, or officer thereof 52a State Courts. effect of federal statute in 12a(3) Stated Accounts. See Accounts. what are 280, 280a(3) effect of , 280 Statute. what, governs 12, 12a ( 1 ) in actions for tort ,.... 12a(2) effect of federal, in state courts 12a(3) Statute of Frauds. contracts void uiider, statute begins to run on, when 160 Statute James I. general limitations provided by 2 n. did not expressly embrace assumpsit 2 n. Statutes. rights of action founded upon, specialty debts 19 not within statute of James 1 19 actions indirectly founded on 19 liability created by, is in nature of specialty, when 36 subject to statute applicable to specialties 37 concurrent remedies given by 33 rights given by, specialties 38^ 39 1V58 Index. Vol. 1 ends with § 140. Vol. 2 begins witk § 141. Statutes — Continued. section test for determining whether specialties or not 39 21 James I p. 1683 4 Anne p. 9 George III p. 9 George IV p. 3 & 4 Wm. IV. p. 3 & 4 Wm. IV. (as to specialties) P- 7 Wm. IV. & 1 Vict, (mortgages) P- 16 & 17 Vict p. 23 & 24 Vict p. 24 & 25 Viet p. 37 & 38 Vict, (real property) p. 38 & 39 Vict p. 39 & 40 Vict. {Nullum Tempus Act) '. p. 56 & 57 Vict ■ p. Alabama p. Alaska p. Arizona p. Arkansas p. California • ■ ■ P- Colorado p. Connecticut p. Delaware p. Florida P- Georgia p. Hawaiian Islands p. Idaho p. Illinois p. Indiana , p. Iowa p. Indiana Ter ■ p. Kansas p. Kentucky p. Louisiana p. Maine P- Maryland P- Massachusetts p. Michigan p. Minnesota p. Mississippi p- Missouri P- Montana P- Nebraska P- I Nevada P- Index. 1759 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Statutes — Continued. section New Hampshire p. 1633 New Jersey p. 1634 New Mexico p. 1636 New York p. 1638 North Carolina p. 1644 North Dakota p. 1648 Ohio p. 1651 ■Oklahoma p. 1653 Oregon p. 1655 Pennsylvania p. 1657 Rhode Island p. 1659 South Carolina p. 1660 South Dakota , p. 1663 Tennessee p. 1664 Texas p. 1666 United States p. 1567 Utah p. 1669 Vermont p. 1672 Virginia p. 1673 Washington p. 1675 West Virginia p. 1677 Wisconsin p. 1679 Wyoming p. 1682 Statute of Limitation. what are I history and origin of 2 nature of 4 principles on which founded 5 general rules applicable to 6-8 having commenced to run will not gtop 6 must be pleaded by debtor 7 part of leoo fori 8 distinction when statute gives and limits remedy , 9 when title to property is given by possession 10 constitutionality of 11 Hg, what, governs 12, 12a{l), 12a(2), 12a(3) effect of change of, as to crimes 13 effect of, on title to land I4 construction of in general lib what law governs, in general 12a ( 1 ) in actions for tort 12a ( 2 ) effect of federal, in state courts 12a ( 3 ) retroactive operation of 22b provisions for existing causes of action or defenses 12c 1760 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Statute of Limitation — Continued. SECTioisr personal privilege 41 limitations by contract 42 effect of war on conditions 43 waiver of limitation 51 against whom may be enforced 52 State not bound by, unless 52 municipal corporations witMn 53 computation of time under See Computation of Time; Equitakle Actions; Running of Statute. promise not to plead, effect of 41 n., 1, 76, 276 n. See Limitations. Stay. pendency of, in general 253c of proceedings 253d laws 253i Stock. subscription, when statute begins to run on 150 when subject to call 150 when subject to assessment 150 when no time for payment is fixed , 150 where notes are given for, payable upon notice 150 payable by instalments at certain definite periods 150 Stockholders. limitations applicable to actions against corporate 57e(5) on stock subscriptions 57f ( 3 ) under corporate charter 57f ( 5 ) of corporations, actions against, when the statute begins to run 58 n., 149 Subrogation. right of, when merely incidental, does not affect the statute. . 145 n., 40 equitable actions for 62a Supersedeas. pendency of 253d Sureties. acknowledgment by part payment 116b ( 3 ) on ofiicial bonds to State cannot rely on statute, unless 52 when statute begins to run for or against 145, 289 n. remedy of 146 action by, on what predicated 145 n. when less than the debt is paid and accepted in full 145 n. Index. 1761 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Sureties — Continued. Sectioit when note is given by, for the debt 145 n. judgment against, for the debt does not create right of action 145 rights of, to be subrogated to debtor's rights 145 when debt is jiayable by instalments 145 when mortgage to secure is given 145 cannot bind principal by payment of debt barred by statute 145 when debt is paid before it is due 145 Suspension. pendency of 253c of statute of limitations 253j T. Tacking. of disabilities 6, 251 of different possessions 271 Taxes. statute runs against, when 53 n., 3, 164 payment of, does not prove adverse possession apart from statute 258 n. Tenants at Will or at Sufferance. effect of their occupancy 265 n., 1 Tenants in Common. remedy between, in account 24 statute begins to run between, when 169, 255 n., 12, 266, 276 Tenterden's (Lord) Act, 83. Time. when statute begins to run. See Running of Statute. computation of. See Computation of Time. legislature may change as to limitation, when ■ H Title. fraud in obtaining, to property, as ground for relieT 276a(2)' discovery of fraud 276b(3) Title by Possession. See Adveese Possession. Ill 1762 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Torts. SECTION die with the person at common law 2 what law governs in actions for 12a { 2 ) assunlpsit lies for, when 21 party may waive, when 60, 60 n. when waived, assumpsit may be brought though an action for the tort is barred 13 acknowledgment of, does not revive 66 n., 20 acknowledgment of an indebtedness arising from, not sufficient 66 quasi e contractu, statute begins to run on, when 177 for consequential injury 178 for negligence 179 for nuisances 180 for trover or conversion , 183 for trespass, assault, etc 184- for crim. con 185 for seduction 186 for failure to perform duty imposed by statute 187 See Fraud; Negligence; Nuisances; Tbespass. in general, limitations applicable 187a injuries to the person 187b injuries to property 187c in general, accrual of right of action 187d ( 1 ) negligence 187d(2) negligence in performance of professional services 187d(3) injuries to person 187d ( 4 ) injuries to property in general 187d(.5) continuing injury in general 187d { 6 ) injuries to property by flowage, diversion or obstruction of waters 187d(7) wrongful seizure of property 187d ( 8 ) Town Orders. See OuDERS. Towns. \ subject to statute 53 vote at meeting of, " to settle dispute" not sufficient acknowledgment of claim to remove statute 68 n. Trade-Mark. laches in eases of 58 n, 8 Trespass. statute begins to run in actions for, when 178 n., 184 Index. 176 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Trespass on the Case. section embraced assumpsit under Stat. James 1 2 n. Trover. statute begins to run, when 21, iSS what amounts to conversion 183 n. rule when conversion not known 183 n. when demand is necessary 183 Trustee. See Trusts. acknowledgement by part payment 116b ( 7 ) Trusts. barred, when 19 constructive, subject to statute 58 n., 1 equity will not aid, when statute has run 58 n. continuing, not within statute 58 statute does not run on express 200 and notes express, what are 200 n., 201, 215 resulting or constructive, what are 215 possession of, inures to cestui que trust 58 n., 200 cestui que trust, in possession, tenant at will to trustee 200 n., 200 n., 203 cannot convey the estate 200 n. guardians hold property of ward in 204 administrators and executors hold property of estate in 5S n., 1, 205 when possession of trustee becomes adverse 200 n., 212 assignees in bankruptcy, etc., trustees for creditors 202 statute in such cases is suspended as to creditors 202 factors and agents trustees for principal 209, 276 n., 43 partners trustees for each other 210 trust created, how 207 cestui que trust barred when trustee is 208 exceptions to the rule relative to express trusts 213 stale, not favored in equity 214 mistake of trustee in possession, effect of a cestui que trust 216 funds of societies vested in trustee 217 liability of trustee for breach of trust creates trust debt 218 vendor and vendee of land 219 purchaser of property for benefit of another 220 See Laches. computation of period of limitation 220a ( 1 ) -220b ( 4 ) existence of, in general 220a ( 1 ) when relation exists, in general 220a (2 ) possession of property 220a ( 3 ) express or continuing 220a( j^) 1764 Index. Vol. 1 ends with § 140. Vol. 2 begins with § 141. Trusts — Continued. section what constitutes express or continuing , 220a ( 5 ) resulting or implied 220a(6) what constitutes resulting or implied 220a { 7 ) constructive 220a ( 8 ) what constitutes constructive 220a ( 9 ) rights of parties claiming under trustee 220a ( 10) termination of 220a ( 11 ) repudiation or violation of, in general ^ , 220b ( 1 ) necessity for disclaimer or repudiation 220b ( 2 ) what constitutes repudiation or violation of 220b ( 3 ) notice of repudiation 220b (4) u. United States. government, as to claims for or against, when bound by State stat- utes of limitations 27, 40a, 3 courts of, laches, and effect of State statutes. . 27, 40a and n., 3, 149 n., 40 in court of claims i 7 n., 77 See GovKRNMErfT. Use and Occupation. when action for, lies, statute relative to simple contract applies, al- though there is lease under seal 19 Usury. statute runs upon, from time of payment of 58 n., 105, 168 equity wiU not give relief against, when statute has run 58 n. V. Vendor's Lien. for purchase- money, when barred because debt is. . . . 21 n., 8, 235 n„ 39 See Lien. operation and effect of bar of limitation on 63c (3) VendoTs' Liens. equitable actions for enforcement of 62a Vendor and Vendee. of land, under contract to convey, vendor holds as trustee 219 235 n., 39 action by vendee to recover payments 20 n., 55 w. Wager of Law. operated as check on stale demands 2 and note only applied to debt on simple contract and detinue 2 n. Index. 1765 Vol. 1 ends with § 140. Vol. 2 begins with § 141. Wages. See Services. Waiver. section of the statute, by agreement 7, 41 n., 1, 42 n., 17, 51, 76 n., 22, 276 n. by parol 51 n., 35 by acknowledgment, in court of claims 7 n., 77 of tort and suing in assumpsit 21 of limitation 51 of bar of limitations 63i War. effect of, on running of statute 6, 242 on conditions 43 Warrants. limitations applivable to actions on municipal or county warrants 57g(8) Warranty. implied, when statute begins to run on 144a, 35 and n. breach of 173 and n., 21 covenant of. See Covenants. Welsh Mortgages. what are 228 operation of the statute upon 228 Will. general direction in, to pay testator's debts, does not amount to acknowledgment 68, notes creating a trust upon personal estate for payment of debts vriJl not remove statute bar , 68, notes services to be compensated by provision in, when statute begins to run 119 n. Witnessed Notes. See Notes. Writ. issue of, to suspend statute. See JtTDiciAi. Pbocess. Y, Year. meaning of, when employed in contracts 57 (Total number of pages 2032 >