and conveyed by a warranty-deed that is invalid because of the grantor's failure to comply with certain statutory requirements, the grantee instantly has a right of action to recover it back, and the statute begins to run from that time. Thus, where a person purchased land of a guardian, and the guardian having failed to comply with certain statutory provisions the deed was a nullity, in an action by the grantee to recover back the consideration-money it was held that the statute began to run from the day the money was paid, and not from the time that the defect in the conveyance was ascertained;1 and the same doctrine was held in Alabama in a case where a person went into possession under a void deed. Where, under a parol or even a written contract for the sale of lands, no time is fixed for a conveyance, the statute does not begin to run against the purchaser, as to the money paid, until he has demanded a deed or the other party has died, the rule being that the statute does not begin to run against a person who has paid money under a voidable contract until some act has been done by the other party, or by the person paying the money, evincing an intention to rescind the contract.1 SEC. 154. Sheriffs, Actions against, for Breach of Duty. - The statute does not begin to run against a sheriff for moneys collected on an execution until a demand has been made upon him therefor, or until he has made a proper return of the execution as required by law," or, if no 1 Furlong v. Stone, 12 R. I. 437. In Bishop v. Little, 3 Me. 405, a similar doctrine was held where the plaintiff purchased certain lands which were claimed by certain proprietors for whom the defendant acted or assumed to act as agent, and paid to him the purchase-money and took a deed under an assurance of the defendant that the title of the defendants extended to and included the land within six years before the commencement of the action; but more than six years after the delivery of the deed and payment of the money it was discovered that the title of the proprietors did not cover the land in question. The court held that the statute began to run against the plaintiff's claim to recover back the purchase-money, if he ever had any such claim, from the time when the money was paid and the deed delivered, and not from the time when the defect in the title was discovered, there being no fraudulent concealment on the defendant's part. 2 Molton v. Henderson, 62 Ala. 426. In this case it was held that where the legal title to land resides in trustees or the survivors of them, and such lands are sold under void proceedings by a guardian of Collins v. Thayer, 74 Ill. 138. 5 Governor v. Stonum, 11 Ala. 679; State v. Minor, 44 Mo. 373. Where an officer receives from an execution debtor a note in satisfaction thereof, payable to him. self, the statute does not begin to run against the judgment creditor's right to recover of him the proceeds of such note, until the creditor has made a demand upon the officer therefor, especially where the 2 return has been made, until the lapse of the time within which, by law, the return is required to be made. But in Georgia it has been held that the statute begins to run from the time the money was received.1 But this doctrine can hardly be regarded as well founded, because the sheriff has the whole period fixed by law within which to make his return, and until that time has elapsed the creditor has no means of knowing whether the sheriff intends to pay over to him the money collected, or not; nor, until the return-day has passed, can he maintain an action against him either for not collecting, or for refusing to pay over the money when collected. In Louisiana it is held that the statute does not begin to run in such cases until the judgment creditor has demanded the money. For money collected by a sheriff on foreclosure proceedings, the statute does not begin to run until the sale is perfected by a delivery of the deed. For not returning an execution on time, the statute begins to run the moment the time for returning expires, without demand or notice. The cause of action against a sheriff for damages occasioned by his unauthorized release of property attached on mesne process does not arise from the date of the release, but from the date of the judgment, and the statute begins to run from that time. In an action against a sheriff for an escape, the statute begins to run from the time of the escape. For making an insufficient return on mesne process, by reason of which the plaintiff lost the benefit of the attachment, the statute begins to run from the time the writ was returned to the proper officer, and not from the time when the damage therefrom accrued; and this is also the rule where he attaches insufficient property on the original writ, when he was directed to, and might have attached sufficient. But for taking insufficient bail it is held that the note remained uncollected until a short time before demand. Childs v. Jordan, 106 Mass. 321. And the same rule prevails as to money collected on an execution by an officer. Weston v. Ames, 10 Met. (Mass.) 244. An officer who sells an equity of redemption upon execution, and holds the surplus, upon a second attachment, which has since failed, is not liable to the judgment debtor for such surplus until he has received notice of the dissolution of the second attachment; consequently the statute does not begin to run in his favor until such notice is given. King v. Rice, 12 Cush. (Mass.) 161. 1 Thompson v. Central Bank, 9 Ga. 413; Edwards v. Ingraham, 31 Miss. 272. 2 Fuqua v. Young, 14 La. An. 216. Van Nest v. Lott, 16 Abb. Pr. (N. Y.) 130. 559. 5 Lessem v. Neal, 53 Mo. 412. 6 Rosborough v. Albright, 4 Rich. (S.C.) 39; West v. Rice, Met. (Mass.) 564; French v. O'Niel, 2 H. & M. (Md.) 401; Cockram v. Welby, 2 Mod. 222. 7 Miller v. Adams, 16 Mass. 456; Caesar v. Bradford, 13 id. 169. But in Bank of Hartford County v. Waterman, 26 Conn. 324, it was held, in a case where an officer made a false return, that the statute did not begin to run until the plaintiff had sustained actual damage therefrom. But ELLSWORTH, J., dissented from this doctrine, and maintains his position in a very strong and able dissenting opinion. 8 Betts v. Norris, 21 Me. 314. The doctrine of this case has been denied in a Connecticut case, Bank of Hartford County v. Waterinan, 26 Conn. 324, the facts in which, as well as the opinion of the court, 4 Peck v. Hurlburt, 46 Barb. (N. Y.) are given elsewhere; but the courts of Maine adhere to the doctrine of the prin statute does not begin to run until a return of non est inventus has been made on the execution. The distinction being that the persons becoming bail only guarantee that the debtor shall be forthcoming to respond to the execution, and do not become liable to pay the debt except upon failure in that respect, consequently no right of action exists in favor of the creditor until it is ascertained that the debtor is not forthcoming upon the execution;1 and the same rule prevails in actions for taking insufficient receiptors for property attached or sureties in replevin suits.2 For a failure by a sheriff to return goods attached on mesne process to the debtor, after the plaintiff in such process has been defeated, the statute does not begin to run until the attachment is dissolved by the act of the plaintiff therein or by operation of law.3 SEC. 155. Fraudulent Representations in Sales of Property. — In an action to recover damages for fraudulent representations made in the sale of lands, in regard to incumbrances, the cause of action arises at once upon the completion of the sale by a conveyance of the land. In such cases, the fact that the grantee did not discover the fraud until six years after the conveyance is of no consequence, as it is the misrepresentation and not the resulting damage which constitutes the ground of action; and, as the fraud might have been discovered by an examination of the proper records, the fault is the grantee's, if he has failed to use that diligence which common prudence suggests in ascertaining the truth. The distinction between that class of cases where the fraud ought to have been known to a person, and one where ordinary diligence would not necessarily have discovered it, is well exemplified in the case cited supra. There is also a wide distinction between a case where the action is predicated upon the fraud of a party in the sale of property, or where he has fraudulently thrown a person off his guard, and prevented such an investigation as would have revealed the truth, and one which is predicated upon a breach of contract of warranty, however false the warranty may be. In the former case the statute would not begin to run until the fraud was, or reasonably could have been, discovered; while in the latter case the statute begins to run at once, although there 1 West v. Rice, 9 Met. (Mass.) 564; Rice v. Hosmer, 12 Mass. 127; Caesar v. Bradford, 13 id. 169; Mather v. Green, 17 id. 60. An action against a sheriff for taking insufficient bail accrues from the time of the return of non est inventus on the execution against the principal, and the statute runs from that time. Hosmer, 12 Mass. 127; West v. Rice, 9 Met. (Mass.) 564; Mather v. Green, 17 Mass. 60. And an action against him for an insufficient return on an original writ Rice v. begins to run from the time when the writ was returned. Miller v. Adams, 16 Mass. 456. 2 Harriman v. Wilkins, 20 Me. 93. 3 Bailey v. Hall, 16 Me. 408. 4 Northrop v. Hill, 61 Barb. (N. Y.) 136. In Owen v. Western Savings Fund, 97 Penn. St. 47, it was held that the statute begins to run against a recorder of deeds for a false certificate of search from the time when the search was given, and not from the time when damage was sustained. was no means by which the vendee could have ascertained the falsity of the waranty. Thus, in a New York case it appeared that the defendant was engaged in the business of raising fruit-trees for sale, and in the spring of 1864 sold the plaintiff one hundred young trees, which he represented to be twenty-ounce apple-trees, which was the kind of trees the plaintiff wanted. The trees were taken and set out by the plaintiff on his farm, and did not bear fruit until the fall of 1870, when it was for the first time possible to discover the truth of the warranty. It was then found that the trees were not twenty-ounce apple-trees, but rather trees producing a very inferior kind of apple. The plaintiff then brought an action against the defendant for a breach of the implied warranty, and the statute of limitations having been pleaded, the principal question was whether the statute began to run from the date of sale, or from the time when the plaintiff first discovered that the trees were not of the kind which they were represented to be. The court held that, as there was a breach of the contract as soon as the sale was completed, the statute began to run from that date, and consequently that the action was barred. "I am of the opinion," said MULLIN, P. J., "that there was a warranty by the defendant, either that the trees sold the plaintiff were twenty-ounce trees, or that they would bear twentyounce apples. If the former was the warranty, the right of action accrued immediately. If the latter, the right of action did not accrue until 1870, and was not barred. . . . When the defendant delivered to the plaintiff the one hundred trees, he declared them as being twentyounce apple-trees at the time of the sale. The meaning, doubtless, was, that they would bear twenty-ounce apples. And a warranty that they would bear that species of apples would be prospective in its operation; the other was to the then present description of the trees. If the trees were not the kind represented, the warranty would be broken in the one case as soon as made in the other, not until they bore fruit of a different kind. The latter form of warranty would not be as a warranty that the trees would bear fruit; but that, if they did bear, they would be of the species known as twenty-ounce apples. It seems to me we must hold the warranty to be as to the species of the trees at the time of the sale, and that a cause of action then accrued, and is of course barred. There is apparent injustice in requiring a plaintiff to bring an action before it was in his power to show that he had been damnified. This result might have been avoided by requiring a warranty that the trees. would bear the kind of fruit wanted. "Inability to ascertain the quality or condition of property warranted to be, at the time of sale, a particular quality or in a certain condition, has never been allowed to change the rule as to the time when a right of action for a breach of warranty occurs." 2 1 Allen v. Ladd, 6 Lans. (N. Y.) 222. Troop v. Smith, 2 Johns. (N. Y.) 33; Effect of, SEC. 156. When Leave of Court to sue is necessary. on Commencement of Limitation. When an action cannot be brought until leave to sue is granted by a court, especially when this preliminary is imposed by statute, the statute of limitations does not begin to run upon the cause of action until such leave has been granted;1 although, if a party has slept upon his rights unreasonably, and has neglected to make application to the court for leave to sue for such a period of time that his demand may fairly be regarded as stale, it would seem to furnish ample ground for a refusal by the court of the necessary leave to use its process to enforce the claim. It would be exceedingly unreasonable to hold that the statute runs upon a claim when the party has no power to maintain a suit thereon, and although formerly perhaps a contrary rule would have been held, yet, according to the tendency of the courts at the present time, there can be no question that the Minnesota case expresses the true rule. SEC. 157. Orders of Court. -The statute ordinarily begins to run against an order of a court from the time when it is made, but when such order partakes of the nature of an interlocutory decree, the statute does not begin to run against it until the proceedings are at an end. Especially is this the case in relation to orders of probate courts, made during the progress of administration, upon which it is held that the statute does not begin to run until the time of final settlement.2 SEC. 158. Property obtained by Fraud. When property is obtained by fraud, so that a present right of action arises either for the tort or for the value of the property under an implied contract, the statute begins to run from the time when the fraud was, or by the exercise of reasonable diligence might have been, discovered; and even though the statute may have run against the tort, yet an action upon the implied contract may be maintained, unless the statute has also run upon it. Thus, where the maker of an overdue note induced the payee to surrender it to him without payment, by fraud, it was held equivalent to obtaining so much money, and that the creditor night waive the tort and maintain an action for money had and received, and that the statute did not begin to run until the fraud was actually discovered, or the lapse of a reasonable time within which the plaintiff should have discovered it. SEC. 159. Promise to marry. · A promise to marry, especially where the parties thereto, through a period of several years, do no act to indicate an intention or purpose not to fulfil it, is treated as a continuous promise, and the statute does not begin to run thereon until there is a breach thereof, either by one of the parties having put it out of his or Argoll v. Bryant, 1 Sandf. (N. Y. S. C.) 98; Allen v. Miller, 17 Wend. (N. Y.) 202. 1 Wood v. Myrick, 16 Minn. 494. 2 Tindall v. McMillen, 33 Tex. 484. 3 Penobscot R. R. Co. v. Mayo, 67 Me. 470. See also Outhouse v. Outhouse, 13 Hun (N. Y.), 130. |