McGinnis v. Hunt , 47 Iowa 668 ( 1878 )

Eothbook, Ch. J.

i..statute of relief on the fraud” ° I. Sub. 3 of Sec. 2740, of the Eevision of 1860, provided that actions “founded on unwritten contracts, those brought for injuries to property or for relief on the ground of fraud, in cases heretofore solely cogpizable in a court of chancery,” must be brought within five years after the cause of action accrued.

Sec. 2741 provided that “in actions for relief on the ground of fraud, as above contemplated, the cause of action will not be deemed to have accrued until the discovery of the fraud by the party aggrieved.”

It was held in Relf v. Eberly, 23 Iowa, 467, that, “ ib cases of fraud when the plaintiff’s remedy is concurrent, that is .when he could have the same relief either at law or in equity, the action must be commenced within five years after the perpetration of such fraud, and that he could not sue within that time after the discovery thereof.”

The reason of the rule was that the case was not one “ heretofore solely cognizable in. a court of chancery,” and, therefore, did not come within the exception of the statute.

The same may be said of the case at bar. Although it was commenced as an equitable action, by dismissing as to the subsequent grantee it was in substance an action at law, against the defendant Hunt alone, for damages for fraudulent representations.

Although the language of Sub. 4, of Sec. 2529 and Sec. 2530 of the Code is not precisely the same as the sections upon the same subject in the Revision of I860, which are above quoted, yet it was held in Gebhard v. Sattler, 40 Iowa, 152, that under the Code a party must bring his action for relief upon the ground of fraud within five years after the cause of action accrued, excepting in cases heretofore solely cognizable in courts of chancery. This has been followed in Brown v. Brown, 44 Iowa, 349, and in Phœnix Ins. Co. v. Dankwardt, p. 432, ante.

The case of Higgins v. Mendenhall, 42 Iowa, 675, is not inconsistent with the cases last above cited. That was an action at law to recover for money paid by mistake, and Sec. 9 of the act of 1870, being now substantially Sec. 2530 of the Code, expressly juovides that in actions for relief on the ground of mistake the cause of action shall not be deemed to have accrued until the mistake shall have been discovered by the party aggrieved.

There is no other provision as to the limitation of actions founded on mistake, as there is in case of actions founded on fraud, and construing Sec. 9 of 1870 alone we held that an action founded on mistake was not.barred until five years after the discovery of the mistake. It is true the petition in that case alleged a fraudulent concealment, but this was an immaterial allegation. The action was grounded upon the alleged mistake.

Affirmed.