District Township of Boomer v. French , 40 Iowa 601 ( 1875 )

Cole, J.

By our statute,- causes of action against a jmblic officer growing out of the omission of an official duty, must limitations01 fraud! be brought within three years after their causes accrue. Nev. 1860, Sec. 2740, Code 2529. This cause of action accrued on March 21, 1870, -and suit was not brought until 1874. It is therefore barred, nothing further appearing. Powesheik, Co. v. Ogden, 7 Iowa, 177; The State v. Dyer, 17 Iowa, 222; Prescott v. Gonser, 34 Iowa, 175. But it is claimed that it is saved by the provisions of Code, “ Sec. 2530. 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.”

This action does not come within the language or meaning’ of the section quoted, for the reason that the action is not for relief on the ground of fraud, but on the ground that the defendant failed to j>ay over money received by him. The cause of action does not grow out of the fraud alleged; it existed independent of the fraud. Under the provisions of the section quoted above, the fact that the plaintiff by reason of the fraud of the defendant, failed to discover the cause of action, does not defeat the bar of the statute, that is defeated by the terms of that section only wffiere the cause of action is grounded ín fraud.

We have thus far discussed the question made, upon the basis of the arguments submitted to us by the respective coun-2.-: fraudulent conceal-men);. sel. Doubtless the District Court decided the . ■ , question upon the construction of the statute quoted, and upon the «ame basis of argument as presented to-us; 'and thereon, alone, the correctness of its decision could not probably be successfully controverted. But, upon an appeal, while we are limited to the points or questions made, we are not limited to the arguments submitted, or to the authorities cited. Looking beyond, we find the rule to have been very well settled, under the English statute of limitations, that where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented 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 use of diligence, have been discovered. Booth v. Lord Washington, Br. Parl. Cas., 163; Hovenden v. Lord Annesley, 2 Sch. & Lefr. 607, (i.e. 634;) Western v. Cartwright, Select Cas. in Ch. 34; South Sea Co. v. Wymondrell, 3 Peere Wm., 143; Deloraine v. Browne, 3 Bro. Ch., 633; Bree v. Holbeck, 2 Dong., 654; recognized in Short v. McCarthy, 3 Barn. & Ald.,403; confirmed in Brown v. Howard, 2 B. & B., 73, s. c., 4, J. B. Moore, 508; Clark v. Hougham, 2 Bamm. & Criss, 149; Granger v. George, 5 Ibid, 149, s. c., 7, Dowl. & Ryl., 729; Howell v. Young, 5 Barn. & Cress, 259; Ex parte, Bolton 1 Mont. & Ayrton, 60; Macdonald v. Macdonald, 1 Bligh., 315; Wally v. Wally, 3 Bligh., 12; Cooper v. Godmond, 9 Bing., 748. And the same doctrine has been recognized and established in this country. See, First Mass. S. P. Co. v. Field, 3 Mass., 201; Bishop v. Little, 3 Greenl., 405; Morton v. Chandler, 8 Greenl., 9; Cole v. McGlathery, 9 Greenl., 131; Sherwood v. Sutton, 5 Mason, 143, where Ludge Story reviews the English and American cases at length; Payne v. Hathaway, 3 Vermt., 212; Mussi v. Lorain, 2 P. A. Brown, (Penn.,) 59; Pennoch v. Freeman, 1 Watt., 401; Jones v. Conaway, 4 Yeates, 109; Harnell v. Kelley, 2 McCord, 426; Homer v. Fish, 1 Pick., 435; Wells v. Fish, 3 Pick., 73, and cases cited in note, page 75, and many other and later cases; see also 2 Greenl. on Ev., § 448, and cases cited. The same doctrine is recognized in courts of equity in New York, Butine and wife v. Varian, 1 Edward’s Ch., 343, and other cases; while it is not there enforced by courts of law. Troup v. Smith, 20 Johns., 40. Similar rules obtain; also in North Carolina and Virginia, Hamilton v. Sheppard, 2 Murphey, 115; Callis v. Waddy, 2 Munf., 511; see also Shelby v. Shelby, Cooke’s (Tenn.,) 183.

• It must be understood that, in order to defeat the bar of the statute, actual fraudulent concealment must be averred and shown, — mere ignorance is not enough. Here such fraudulent acts and concealment are directly averred, and these being admitted by the demurrer it was error to sustain it.

REVERSED.