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Fraud: mis

take: trespass. 13 G. A. ch. 167,

R. 2741.

39.

C. '51, 2 1660.

in defendant personally and solely, | sion, and not from the time the ad-
but it is sufficient if it be in him and verse claimant obtains title: Rob-
those through whom he derives title, inson v. Lake, 14-421.
they claiming title: Kilbourne v.
Lockman, 8-380.

A possession not at first adverse may afterward become so by acts of the party: Allen v. Wright, 30–480. Where possession is originally lawful a mere forcible entry thereon, not followed by continuous possession, will not prevent the statute from continuing to run. But otherwise if entry be peaceable and continuous possession thereunder is retained: City of Pella v. Scholte, 24-283.

As against an action for the recovery of real property, the statute begins to run at the time adverse possession is taken and held by the tenant or those under whom he claims. The possession of a tenant holding over after his term, or that of a mere trespasser, does not amount to a disseizin such that the statute will begin to run. Disseizin occurs only when possession is taken and held without assent of the owner, with intent to hold the estate therein under claim adverse to him: Barrett v. Love, 48103.

Ten years use of a highway by the public under claim of right will bar the owner of the soil: Keyes v. Tait, 19-123; at least in the absence of proof that the road was used by leave, favor, or mistake: Onstott v. Murray, 22–457.

The possession must be under
claim of right, and such claim will|
not be presumed by mere possession.
So held, in case of a mistake as to the
boundary line: Grube v. Wells, 34-
148. But where parties have estab-
lished a line and used it as a boundary
irrespective of the true line, the pos-
session will be adverse, and after the
lapse of the necessary period, conclu-
sive upon the parties and their gran-runs
tees: Hyatt v. Kirkpatrick, 48-78.

It seems that exclusive occupancy
by one tenant in common for a long
time will constitute ouster of a co-
tenant, but under the circumstances
of a particular case, held, that an oc-
cupancy of seventeen years would not
have that effect: Flock v. Wyatt,
49-466.

The provisions of this paragraph are applicable to a suit by a widow for dower, either in equity or by action to recover real property: Phares v. Walters, 6-106; but the statute does not commence to run against her until her right to dower is denied: Starry v. Starry, 21-254; Nelson r. Rice, 27-148: Sulley v. Nebergall, 30-339; Felch v. Finch, 52-563. Laps of ten years will not bar doweress of her dower where there has been no adverse possession: Berry v. Furhmann, 30–462.

The limitation commences to run from the time of ouster by one who enters with claim of adverse posses

Whether the statute of limitations

against the public because of adverse possession of a highway established in the manner prescribed by law, quære, but, held, that in case of non-use of a highway for a long time and actual adverse possession thereof for ten years, the public were estopped from asserting any right thereunier: Davies v. Huebner, 45–574.

Mere non-user of an easement granted by deed will not bar the right. There must be some use adverse to that of the grantee to have that effect: Barlow v. C., R. I. & P. R. R. Co., 29–276.

PAR. 6: A revival of a judgment by scire facias is not a new judgment against which the statute of limitations commences to run, but the period of limitation continues to run against the original judgment : Meek v. Meek, 45-294.

A judgment against a decedent must be filed as a claim under § 2421, or it will be barred as there specified: Daris v. Shawhan, 34–91.

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.

In an action such as here contem- The fraud here contemplated is plated, the defendant setting up the only such as was heretofore "solely statute of limitations must show the cognizable in chancery,' as specified lapse of five years after the discovery in $ 2529, ¶ 4: Gebhard v. Sattler, of the fraud or mistake: Baldwin v. | 40-152; Brown v. Brown, 44-349; Tuttle, 23-66; Harlin v. Stevenson, Phenix Ins. Co. v. Dankwardt, 4730-371.

432.

Where the fraud is not of that as to cases of mistake): Higgins v. character, but the plaintiff's remedy Mendenhall, 51–135. is concurrent, the exception here As to when the statute begins to run made does not apply: Relf v. Eber-in case of a fraudulent concealment of ly, 23-467. a cause of action, see notes to § 2529. The exception of this section does not apply where the fraud, etc., might, by the use of diligence, have been discovered: Humphreys v. Mattoon, 43–556.

The mistake, however, may be such as was cognizable either at law or in equity: Higgins v. Mendenhall, 42675; McGinnis v. Hunt, 47-668; (these two cases, however, overruled so far as they refer to 13 G. A., ch. 167, § 9, which contained no provision

Section applied: Cowin v. Tool, 31-513; Shank v. Teeple, 33-189.

R. 2743.

SEC. 2531. When there is a continuous open current account, Open account. the cause of action shall be deemed to have accrued on the date C. 51, 1662. of the last item therein as proved on the trial.

The statute commences to run from the date of the last item, whether debit or credit: Thorn v. Moore, 21285; Mills v. Davies, 42-91.

The account here contemplated is one which is not interrupted nor broken, not closed by settlement or otherwise, and is a running, connected series of transactions. Where there was a hiatus of two years, followed by an item of a different character than those before, held, that the last item was not properly a part of the same account: Tucker v. Quimby, 37–17.

A claim for work performed at different periods of time, under separate and distinct contracts, is not a continuous, open, current account: Shorick e. Bruce, 21-305.

Where the indebtedness was accruing daily, monthly or yearly for items of board, rent, etc., held, that it would constitute a current account: Moser v. Crooks, 32-172; and so held, in case of a charge for keeping and

providing for another continuously: Wendeling v. Besser, 31-248.

Though a special contract be made as to a specific piece of work, the price thereof may still be a proper item of account: Mills v. Davies, 42-91.

The fact that no date, or an incorrect date was fixed to the account, or that it was not directly charged to any one, held, not to prevent the provisions of this section from applying: Tubbs v. City of Maquoketa, 32-564.

In a case not involving the construction of this section, held, that an intervening statement of a balance did not prevent subsequent items from forming a portion of the same continuous account: Lamb v. Hanneman, 40-41.

That an account appears on its face to be barred, is no ground of objection to the introduction in evidence of the book containing it: Thorn v. Moore, 21-285.

ment of action

SEC. 2532. The delivery of the original notice to the sheriff Commence. of the proper county with intent that it be served immediately, R. 2744. which intent shall be presumed unless the contrary appears, or the C. 51, 1655. actual service of that notice by another person, is a commencement

of the action.

The action is not commenced or pending until the delivery of the notice to the sheriff as here contemplated, although the petition be previously filed: Collins v. Bane, 34-385. However, in an injunction proceeding, held, that the filing of a petition and service of the writ operated to commence the action, although no original notice was served before the period of limitation had expired: Sweatt v. Faville, 23–321.

Action may be considered begun, for some purposes when the petition is filed; for instance, for the purpose of issuing a writ of attachment, (§ 2949):

Hagan v. Burch, &-309; Reed v. Chubb, 9-178; Elliott v. Stevens, 10418.

This section only fixes the time of the commencement of actions with reference to the statute of limitations. As to what is, in general, the commencement of an action, see § 2599, and notes: Parkin v. Travis, 50-436.

An action in relation to real estate is pending so as to affect third persons with notice, from the date of filing the petition; see § 2628.

Section applied: Snyder v. Ives, 42-157.

SEC. 2533. The time during which a defendant is a non-resident Non-residence. of the state shall not be included in computing any of the periods

R 2 2745.
C. 51, 1664

Barred by laws of another country.

13 G. A. ch. 167, £ 10

C. '51, 2 1665.

cf limitation above described.

The expressions "out of this terri- | domestic or foreign bar. He cannot tory" and "the time of such person's weld the time which elapsed before absence," occurring in the corres he came to this state to that which ponding section of the act of Feb. 15, elapsed thereafter, in order to obtain 1843, relating to the same subject, the years requisite to constitute a bar held, to mean such an absence as sus-under our statute: Sloan v. Waugh, pended the power to commence action 18-224. against such party in any of the methods provided by law; but not a mere temporary absence, during which | the family of the party remained at his usual place of abode, and service of notice might have been had upon him by leaving a copy with some member of such family: Penley t. Waterhouse, 1-498.

Residence, and not citizenship or domicile, is here contemplated: Savage v. Scott, 45-130.

A person on his decease ceases to be a non-resident. The disability of non-residence ends with his death: Ibid.

A party claiming advantage of the exception contained in this section has the burden of establishing it: Evans v. Montgomery, 50–325.

A party must rely upon either the

As against an indebtedness contracted while defendant was a resi dent of another state, the statute only commences to run when he becomes a resident of this state (unless the claim was then barred as provided in § 2534): Petchell v. Hopkins, 19–531.

If by reason of non-residence of the debtor, an action on a note is not barred, neither is the action to foreclose a mortgage securing the same: Clinton Co. v. Cox, 37-570.

The fact that a non-resident land owner has had a tenant in possession of the property, against whom action might have been brought under $ 3246, will not cause the statute of limitations to run in favor of such non resident owner: Heaton v. Fryberger, 38-185, 196.

SEC. 2534. When a cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter; but this section shall not apply to causes of action arising within this state.

If the cause of action did not arise in this state, the fact that defendant resided here before going to the state where the cause of action became barred, will not prevent his taking advantage of such bar in a subsequent suit here: Lloyd v. Perry, 32–144.

The use of the words "has previously resided" does not imply that the defendant interposing the plea of bar must at such time be a resident of this state. That plea may be interposed by either a resident or a non-resident: Lebrecht v. Wilcoxon, 40-93.

Aside from statute the rule is that a debt barred by the statute of the state in which it was contracted is not barred by the laws of another state in which suit may be brought. To enable a party to avail himself of

the provisions of our statute to the contrary, he must show that he has, previous to his removal to this state, resided in another state by the laws of which the cause of action has been fully barred: Sloan v. Waugh, 18224; Petchell v. Hopkins, 19–531.

In an action commenced before the amendment of 1870 (which added the last clause of the section,) held, that the section applied to actions arising within the state, if general in their nature so that they might have been prosecuted where defendant resided: Davis v. Harper, 48–513.

It will not be presumed that because notes are barred by the law of the state where the defendant has previously resided, a mortgage given to secure them is also barred thereby : Gillette v. Hill, 32-220.

SEC. 2535. The times limited for actions herein, except those Minors and in- brought for penalties and forfeitures, shall, in favor of minors as defined by this code, and persons insane, be extended so that

sane persons.

1.2747.

C. 51, 1666.

they shall have one year from and after the termination of such disability within which to commence said actions.

The statute commences to run dur- | alive the claims of his co-tenants: ing infancy, but the action is not Pet rs v. Jones, 35–512. barred until at last one year after majority: Mathews v. Stephens, 39-279.

Where the minor owns as tenant in common with others, the fact that his claim or right is kept alive by this exception in his favor, will not keep

Under the Rev. there was no such exception in favor of insane persons, nor was there at common law: Shorick v. Bruce, 21-305.

Section applied: Campbell v. Long, 20-382; McGinnis v. Edgell, 39419, 423.

SEC. 2536. If the person entitled to a cause of action die Death: excep within one year next previous to the expiration of the limitation tion. R. 2748. above provided for, the limitation above mentioned shall not apply C. 51, 1667. until one year after such death.

tion.

SEC. 2537. If after the commencement of an action, the plain- Failure of actiff fail therein for any cause except negligence in its prosecution, R. 2749. and a new suit be brought within six months thereafter, the C. 51, 2 1668. second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.

C. '51, 1669.

SEC. 2538. The above limitations and provisions shall not apply Bank bills. to evidences of debt intended to circulate as money, but shall, in R.2750. other respects, be applicable to all actions brought by or against all bodies corporate and politic, except when otherwise expressly declared.

The state is not intended to be in- | Des Moines v. Harker, 34-84. cluded among bodies corporate and politic here referred to, and the statute does not run against it: County of

But the statute does run as against counties and cities; See notes to § 2529.

writing

SEC. 2539. Causes of action founded on contract, are revived Admission in by an admission that the debt is unpaid as well as by a new prom- R. 2751. ise to pay the same. But such admission or new promise must be C. 31, 1⁄2 1670. in writing, signed by the party to be charged thereby.

Whether an admission would be good, if made to one not a party in interest or the agent of such party, quare: Collins v. Bane, 34-385, 389; Palmer v. Butler, 36–576, but the admission need not show to whom it was made: Mahon v. Cooley, 36-479. A writing admitting the debt proven to be by the party sought to be charged, but not signed by him, is not admissible, and the oral testimony of defendant that the debt in controversy is the one referred to in certain written admissions is not competent, not being an admission in writing. The question whether the written admission refers to the debt in controversy is one of fact for the jury: Collins v. Bane, 34-385, 390.

Parol evidence may be received to show that a letter containing an admission was addressed to the plaintiff by defendant, and referred to the account in suit, but the amount of the recovery must be limited to the amount therein admitted: Wise v. Adair, 50-104.

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A renewal by acknowledgment or new promise made prior to the sale of the premises mortgaged to secure the debt so renewed, will be binding on the vendee thereof, and he cannot set up the statute of limitations against such mortgage: Palmer v. Butler, 36-576; but otherwise if the renewal is made subsequently to the sale: Day v. Baldwin, 34–380.

An admission or new promise may be made before the bar of the statute becomes complete as well as afterwards: Penley v. Waterhouse, 3418; Lindsey v. Lyman, 37–206. A new consideration is not necessary to support it. The action should be brought on the original cause of action and not on such admission or new promise: Frisbee v. Seaman, 49-95.

Either an admission or new promise is sufficient. Both are not necessary: Mahon v. Cooley, 36-479; Ayres v. Bane, 59-518.

A new promise which operates to keep alive a debt will also keep alive

the lien of a mortgage given to
secure the same: Clinton County v.
Cox, 37-570. And an admission of
the husband, without the wife's con-
sent, will keep alive the lien of a
mortgage given on the homestead to
secure the debt: Mahon v. Cooley,

36-479.

An admission should not be excluded because made on Sunday: Ayers v. Bane, 39-518.

Partial payments and indorsements thereof on a promissory note are not sufficient to prevent the bar of the statute. The rule was different before the adoption of the statutory provision, but as the statute applies to the remedy, it is not unconstitutional as affecting contracts already made: Parsons v. Carey, 28-431; Harrencourt v. Merritt, 29-71; Roberts v. Hammon, 29-128.

A new promise to pay a debt at a different time and in a different manner from that of the original contract, does not constitute a new agreement, but only a new promise to pay, and hence cannot be enforced unless it is in writing: Price v. Price, 34-404.

A proposition to compromise is not a new promise to pay and does not revive the debt: Morehead v. Gallinger, 9-519.

Certain statements in a letter, held, to constitute a sufficient admission; also, held, that the cause of action upon a note being revived, the statute of limitations began to run anew from that time and would run for ten years: Bayliss v. Street, 51–627.

Certain statements, held, not an admission or new promise: Oakson v. Beach. 36-171.

The first part of this section simWhether a payment on an account ply declares the common law rule. by the debtor will revive the same An acknowledgment of the debt is a after it has once become barred, sufficient admission, but it seems that quare; but a payment before it is if the admission or acknowledgment barred will prevent the statute from is coupled with the expression of an running as to any part of the account unwillingness to pay and an intention until five years from such payment. not to pay, it will not revive the (§ 2531): Thorn v. Moore, 21-285. debt: Penley u. Waterhouse, 3-418. SEC. 2540. A counter claim may be plead as a defense to any Counter claim: cause of action, notwithstanding the same is barred by the provisions of this chapter, if such counter claim so pleaded was the property of the party pleading it at the time it became barred, and the same 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.

when barred. R. 2752.

Injunction or

statutory pro

hibition.

Section applied: Allen v. Maddox, | 40–124.

SEC. 2541. When the commencement 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.

SEC. 2542. The provisions of this chapter shall not be applicable to any action brought on any contract for any part of the 9 G. A. Ch. 148, school fund. ¿ 13.

School fund.

Similar provision, see § 1880.

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CHAPTER 3.

OF PARTIES TO AN ACTION.

SECTION 2543. Every action must be prosecuted in the name of the real party in interest, except as provided in the next section.

The real party in interest may sue ell v. Bartlett, 14-157. He may be on a negotiable note, although he is entitled to sue under an assigninent not the payee or indorsee: McDow-made otherwise than by indorsement:

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