Dee v. Hyland , 3 Utah 308 ( 1883 )

Twiss, J.:

This is an action for the recovery of the possession of a horse, alleged to be the property of the plaintiff, with a prayer for judgment against the defendant for the possession of the horse, in case possession can be had, but if possession thereof could not be had, then in such case for the value of the horse.

Among other defenses, the statute of limitations was pleaded. A trial by jury was waived, and-the case tried by the court.

Evidence was properly admitted at the trial upon which the court found the following facts: “The plaintiff purchased the horse in question in 1873, and used him until May, 1877, tben put him out to pasture. The horse disappeared in June, 1877. Plaintiff spent several days with others in looking for him, and notified the sheriff of Weber county of his loss, and desired him to keep watch for him, and also notified his friends among ranchers and cattlemen. The plaintiff never saw the horse again until he saw him in the possession of the defendants in Ogden, on the twenty-eighth or twenty-ninth day of September, A. D. 1881, at which time he demanded possession of the horse, and upon their refusal commenced this action. * * * The defendants bought the horse of Parsons, in March, 1878, and have used him on their ranch in Box Elder county, ever since, just as they used their other horses. There has been no effort on their part to conceal the horse, neither has he been concealed, but their possession has been open and notorious. Parsons, of whom the defendants purchased, bought the horse of Kimball & Bichardson prior to the tenth day of September, 1877, and Parsons’possession had also been open and notorious.” And finds as a conclusion of law that the statute of limitations pleaded by the defendants had run against the claim of the plaintiff, and that he is not entitled to recover the horse in this form of action, and that the defendants are entitled to the return of the horse, and in case return cannot be had, to a judgment for its value.

This case is to be distinguished from those in which the action is based upon a fraud committed by the, defendant upon the plaintiff, who, by reason of the fraudulent or wrongful conduct of the defendant, never discovers the fraud, and has no knowledge of a right of action until after the period of limitation has passed, like First Massachusetts Turnpike Corp. v. Field, 3 Mass. 201; Bailey v. Glover et al., 21 Wall. 342; Atlantia National Bank v. Harris, 118 Mass. 143; in these and similar cases, the plaintiff, by reason of the concealment on the part of the defendant, did not know of the injury or fraud committed until after the expiration of the statutory limitation; and the question as to the application of the statute was between the wrong-doer upon one side and the injured party upon the other. It would seem in such cases that justice and a sense of common honesty ought to prevent a person from using this statute as a means of successfully practicing a fraud upon his victim, unconscious of tbe wrong perpetrated upon and concealed from him. In the case at bar, the plaintiff knew he had lost possession of his horse, but did not know whether it was dead or alive; and if alive, whether it had strayed or been stolen, or where it was, or who, if any one, had possession of it. While this was the state of facts as to the plaintiff, the defendants and their vendors purchased, held, and used the horse in good faith, making no effort to conceal it, either from the plaintiff or any other person; their possession had been notorious more than three years before the plaintiff knew who had the horse, or made a demand for its possession. Which of these parties, plaintiff or defendants, both innocent and without fault, must be the loser ? It is not claimed that the horse was impounded and sold as an estray under the statute. The conclusion is therefore inevitable that some person, after the horse was turned out to pasture by the plaintiff, in June, 1877, wrongfully converted it to his own use, before it was sold to Nimball & Richardson in the following September ; and although the horse was honestly purchased by the defendants and their vendors, yet the possession and use of it by them was a wrong upon and in violation of the rights of the plaintiff from the time they respectively received it, for which he had a remedy by action at law for an unlawful conversion to their use: Gilmore v. Newton, 9 Allen, 171; Trudo v. Anderson, 10 Mich. 357.

Does the fact that the plaintiff did not know who had the horse nor where it was affect the rights of either party to this action as to the application of the statute of limitations pleaded as a bar ? The statute contains no exception exempting plaintiffs, who are ignorant of the facts necessary to give them a right of action, from its limitations, and there is none implied by law, unless that ignorance is occasioned by some improper conduct of the defendant: Smith v. Newby, 13 Mo. 159.

Where there is no proof of fraud on the part of the defendant, the general rule is, that the time of limitation runs from the time of the commission of the wrongful act, or the right of action accrues, and not from the time of the knowledge of the act by the plaintiff, there being no proof of any wrongful conduct on the part of the defendant, by means of which that knowledge is concealed from the plaintiff: Addison on Torts, 1164; Jordan v. Jordan,4 Greenl. 175; Thomas v. White, 3 Litt. 177.

Wells v. Halpin, 59 Mo. 92, was an action in the nature of replevin, and the only defense relied on was the statute of limitations; the court, quoting from Foley v. Jones, 52 Id. 64, say: “ It may be conceded that the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned by some improper conduct on the part of the defendant,” and then proceeds as follows: “ This is now the .uniform construction, and no reason is perceived warranting a departure from it.” The same doctrine is maintained in Wood on Limitations, 382,Band numerous authorities are cited in its support.

The judgment of the district court is affirmed.

Hunter, C. J., and Emerson, J., concurred.