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in defendant personally and solely, / sion, and not from the time the all-
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. As against an action for the recoy-
Lorkman, 8-380.

ery of real property, the statute begins A possession not at first adverse to run at the time adverse possession may afterwarıl become so by acts of is taken and held by the tenant or the party : Allen 1. Wright, 30-480. those under whom he claims. The Where possession is originally lawful possession of a tenant holding over a mere forcible entry thereon, not fol- after his term, or that of a mere treslowed by continuous possession, will passer, does not amount to a disseizin not prevent the statute from continu- such that the statute will begin to ing to run. But otherwise if entry be run. Disseizin occurs only when peaceable and continuous possession possession is taken and held without thereunder is retained: City of Pella assent of the owner, with intent to v. Scholte, 24-283.

hold the estate therein under claim The possession must be under adverse to him: Barrett v. Lore, 48claim of right, and such ciaim will 103. not be presumed by mere possession. Ten years use of a highway by

boundary line: Grube v. Wells, 34- bar the owner of the soil: Keyes v.
148. But where parties have estab- | Tait, 19-123; at least in the absence
lished a line and used it as a boundary of proof that the road was used by
irrespective of the true line, the pos- leave, favor, or mistake: Onstott v.
session will be adverse, and after the Murray, 22-157.
lapse of the necessary period, conclu- Whether the statute of limitations
sive upon the parties and their gran- runs against the public because of
tees: Hyatt v. Kirkpatrick, 48-78. adverse possession of a highway es-

It seems that exclusive occupancy tablished in the manner prescribed by by one tenant in common for a long law, quære, but, held, that in case of time will constitute ouster of a co- non-use of a highway for a long time tenant, but under the circumstances and actual adverse possession thereof of a particular case, held, that an oc- for ten years, the public were estopcupancy of seventeen years would not ped from asserting any right therehave that effect: Flock v. Wyatt, un ier: Daries v. Huebner', 4.-574. 49-466.

Mere non-user of an easement grantThe provisions of this paragraph ed by deed will not bar the right. are applicable to a suit by a widow There must be some use adverse to for dower, either in equity or by ac- that of the grantee to have that tion to recover real property: Phares etfect: Barlow v. C., R. I. & P. R. 1. Walters, 6–106; but the statute R. Co., 29-276. does not commence to run against her Par. 6: A revival of a judgment until her right to dower is denied: by scire facias is not a new judgment Starry 1. Starry, 21-2.14; Velson 1. against which the statute of limitaRice, 27-148; Sulley V. Nebergall, tions commences to run, but the pe30-339 ; Felch v. Finch, 5-56:3. riod of limitation continues to run Lars of ten years will not bar dow- against the original judgment : Veek eress of her dower where there has v. Meek, 45-291. been no adverse possession: Berry A judgment against a decedent t. Furhmann, 30–462.

must be filed as a claim under $ 2421, The limitation commences to run or it will be barred as there specified: from the time of ouster by one who Davis v. Shauhan, 34–91. enters with claim of adverse posses

SEC. 2530. In actions for relief on the ground of fraud or mis

take, and in actions for trespass to property, the cause of action Fraud: mistuke: trespass. shall not be deemed to have accrued until the fraud, mistake, or R. 2741. 136. A. ch. 167. trespass complained of shall have been discovered by the party 6. 51, 2 1660.


In an action such as here contem-1 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 $ 2329, T 4: Gebhard v. Sattler, of the fraud or mistake: Baldwin v. 40-152; Broun . Brown, 44-349; Tuttle, 233-66; Harlin v. Sterenson, Phoenix Ins. Co. ¥. Dankuardt, 4734-371.


Where the fraud is not of that as to cases of mistake): Higgins v. character, but the plaintiff's remedy Mendenholl, 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, 23467.

a cause of action, see notes to $ 2529. The mistake, however, may be such The exception of this section does as was cognizable either at law or in i not apply where the fraud, etc., equity: Higgins v. Mendenhall, 42- I might, by the use of diligence, have 675; McGinnis v. Hunt, 47-668 ; been discovered: Humphreys v. Mat(these two cases, however, overruled toon, 43-556. so far as they refer to 13 G. A., ch. Section applied: Coucin v. Tool, 167, $ 9, which contained no provision 31-513 ; Shank v. Teeple, 33–189. Sec. 2531. When there is a continuous open current account, open account.

R. 2 2713. the cause of action shall be deemed to have accrued on the date c. 51, € 1602. of the last item therein as proved on the trial.

The statute commences to run from providing for another continuously : the date of the last it m, whether Wendeling v. Besser, 31-248. debit or credit: Thorn v. Moore, 21- Though a special contract be made 235; Mills 1. Daries, 42-91.

as to a specitic piece of work, the The account here contemplated is price thereof may still be a proper one which is not interrupted nor item of account: Jills v. Daries, broken, pot closed by settlement or 42-41. otherwise, and is a running, connect. The fact that no date, or an incored series of transactions. Where there rect date was fixed to the account, or was a hiatus of two years, followed by that it was not directly charged to any an item of a different character than one, held, not to prevent the provisions those before, held, that the last item of this siction from applying: Tubbs was not properly a part of the same v, City of Maquoketa, 32-564. account: Tucker 1. Quimby, 37-17. In a case not involving the con

A claim for work performed at dif-struction of this section, hell, that an ferent periods of time, under separate intervening statement of a balance and distinct contracts, is not a con- ! did not prevent subsequent items tinuous, open, current account: Sho-trom forming a portion of the same rick r. Bruce, 21-30).

continuous account: Lamb v. HanneWhere the indebtedness was accru- | man, 40-41. ing daily, monthly or yearly for items That an account appears on its of board, rent, etc., held, that it face to be barred, is no ground of obwould constitute a current account:jection to the introduction in evidence Yoser r. Crooks, 32-172; and so held, of the book containing it: Thorn v. in case of a charge for keeping and Moore, 21-255. SEC. 2532. The delivery of the original notice to the sheriff Commance

ment of action of the proper county with intent that it be served immediately, R. 227H." which iutent shall be presumed unless the contrary appears, or the

C. '51, 1013. actual service of that notice by another person, is a commencement of the action.

The action is not commenced or, Hagan v. Burch, 8-309; Reed v. pending until the delivery of the Chubb, 9-178; Elliott v. Sterens, 10notice to the sheriff as here contem- | 418. plated, although the petition be pres! This section only fixes the time of viously filed: Collins v. Bane, 34–38.. the commencement of actions with

However, in an injunction proceed- reference to the statute of limitations. ing, held, that the filing of a petition As to what is, in general, the comand service of the writ operated to mencement of an action, see $ 2599, commence the action, although no and notes: Parkin o. Traris, 50-436. original notice was served before the period of limitation had expired: is pending so as to atlect third perSicentt v. Farille, 2:-321.

sons with notice, from the date of filAction may be considered begun, ing the petition; see $ 2628. for some purposes when the petition is! Section applied: Snyder v. Ires, filed; for instance, for the purpose of 42-157. issuing a writ of attachment, ($ 2949): 1

Sec. 2533. The time during which a defendant is a non-resident Nia-residence of the state shall not be included in computing any of the periods R22715. C. '61, Pirts 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 wbich elapsed before absence," occurring in the corres. he came to this state to that whichi 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 var held, to mean such an absence is sus- under our statute: Sloan r. Waugh, pended the power to commence action 18–224. against such party in any of the As against an indebtedness conmethods provided by law; but not a tracted while defendant was a resi. mere temporary absence, during which dent of another state, the siatute only the family of the party remained commences to run when he becomes al at his usual place of abode, and ser- resident of this state (unless the claim vice of notice might have been had was then barred as provided in s upon him by leaving a copy with 2534): Petchell 1). Hopkins, 19-531. some member of such family: Penley If by reason of non-residence of the 7. Waterhouse, 1-198.

debtor, an action on a note is not Residence, and not citizenship or barred, neither is the action to foredomicile, is here contemplated: Sar- close a mortgage securing the same: age v. Scott, 45-130.

Clintin Co. v. Cox, 37-570. A person on his decease ceases to The fact that a non-resident land be a non-resident. The disability of owner has had a tenant in possession non-residence ends with his death: of the property, against whom action Ibid.

might have been brought under A party claiming advantage of the $ 3246, will not cause the statute of exception contained in this section limitations to run in favor of such non. has the burden of establishing it: resident owner: Heaton v. Fryberger, Evans v. Montgomery, 50–325. | 38–185, 196.

A party must rely upon either the

Sec. 2534. When a cause of action has been fully barred by

the laws of any country where the desendlant has previously reBarred by laws of another *** sided, such bar shall be the same defense here as though it had Curreich 169 arisen under the provisions of this chapter ; but this section shall

not apply to causes of action arising within this state. C. '51, 2 1665.

If the cause of action did not arise the provisions of our statute to the in this state, the fact that defendant contrary, he must show that he has, resided here before going to the state previous to his removal to this state, where the cause of action became residied in another state by the laws barrel, will not prevent his taking of which the cause of action has been advantage of such bar in a subsequent fully barred: Sloan v. Waugh, 18suit here: Lloyd r. Perry, 32-144. 224; Petchell v. Hopkins, 1:3–5:31.

The use of the words * has previ- In an action commenced before the ously resided” does not imply that amendment of 1870 (which added the the defendant interposing the plea last clause of the section,) held, that of bar must at such time be a resi- the section applied to actions arising dent of this state. That plea may be within the state, if general in their interposed by either a resident or a nature so that they might have been non-resident: Lebrecht v. Wilcoxon, prosecuted where defendant resided: 40-93.

Daris v. Harper, 48-513. Aside from statute the rule is that it will not be presumed that be. a debt barred by the statute of the cause notes are barred by the law of state in which it was contracted is the state where the defendant has not barred by the laws of another previously resided, a mortgage given state in which suit may be brought. to secure them is also barred thereby: To enable a party to avail himself of 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 Sune persons.

sons. defined by this code, and persons insane, be extended so that .22747. '51, & 1666.

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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. birred until at last one year after Under the Rev. there was no such majority: Mathews 0. Stephens, exception in favor of insane persons, 39-279.

nor was there at common law: ShoWhere the minor owns as tenant rick v. Bruce, 21–30.1. in common with others, the fact that Section applied: Campbell v. Long. his claim or right is kept alive by this 29–38); McGinnis v. Edgell, 39– exception in his favor, will not keep | 419, 423.

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

SEC. 25:37. If after the commencement of an action, the plain- Failure of actiff fail therein for any cause except negligence in its prosecution, K:2740. and a new suit be brought within six months thereafter, the C. '51, 1668. second suit shall, for the purposes herein contemplated, be deemed a continuation of the first.

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 occo 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 But the statute does run as against politic here referred to, and the stat-counties and cities; See notes to $ ute does not run against it: County of | 2529.

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-.751. ise to pay the same. But such admission or new promise must be C. 01, 2 1070. in writing, signed by the party to be charged thereby.

Whether an admission would be! A renewal by acknowledgment or good, if made to one not a party in new promise made prior to the sale of interest or the agent of such party, the premises mortgaged to secure the gucere: Collins v. Bane, 34–385, 389; debt so renewed, will be binding on Palmer o. Butler, 36-576, but the ad- the vendee thereof, and he cannot set mission need not show to whom it up the statute of limitations against was made: Mahon v. Cooley, 36-479. such mortgage: Palmer v. Butler,

A writing admitting the debt proven 336-571i; but otherwise it the renewal to be by the pariy sought to be is made subsequently to the sale: Day charg'd, but not signed by him, is not v. Baldwin, 34-380. admissible, and the oral testimony of An admission or new promise may defendant that the debt in controversy be made before the bar of the statute is thone referred to in certain writ- becomes complete as well as afterten admissions is not competent, not wards: Penley v. Waterhouse, 3being an admission in writing. The 418; Lindsey 0. Lyman, 37–206. A question whether the written admis- new consideration is not necessary to sion refers to the debt in controversy support it. The action should be is one of fact for the jury: Collins v. brought on the original cause of acBane, 34-38.), 390.

tion and not on such admission or Parol evidence may be received to new p:omise: Frisbee v. Scaman, show that a letter containing an al. 49–95. mission was addressed to the plaintiff Either an admission or new promise by defendant, and referred to the ac- is sufficient. Both are not necessary: count in suit, but the amount of the Mahon v. Cooley, 36–479; Ayres v. recovery must be limited to the Bane, 39-518. amount therein admitted: Wise v. A new promise which operates to Adair, 50-104.

keep alive a debt will also keep alive

the lien of a mortgage given tol A new promise to pay a debt at a
secure the same: Clinton County v. different time and in a different man-
Cox, 37-570. And an admission of ner from that of the original contract,
the husband, without the wife's con- | does not constitute a new agreement,
sent, will keep alive the lien of a but only a new promise to pay, and
mortgage given on the homestead to hence cannot be enforced unless it is
secure the debt: Mahon v. Cooley, in writing: Price v. Price, 34-404.

A proposition to compromise is not
An admission should not be ex- a new promise to pay and does not
cluded because made on Sunday : revive the debt: Morehead v. Gal-
Ayers v. Bane, 39-518.

linger, 9-519. Partial payments and indorsements Certain statements in a letter, held, thereof on a promissory note are not to constitute a sufficient admission; sufficient to prevent the bar of the also, held, that the cause of action statute. The rule was different before upon a note being revived, the statute the adoption of the statutory pro- of limitations began to run anew from vision, but as the statute applies to the that time and would run for ten years: reinedy, it is not unconstitutional as Bayliss v. Strret, 51-627. affecting contracts already made : Certain statements, held, not an adParsons . Carey, 28-431; Harren- mission or new promise: Oakson v. court v. Merritt, 29–71; Roberts v. Beach. 36–171. Hammon, 29-128.

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 b-fore it is if the admission or acknowledgment barred will prevent the statute from is coupled with the expr: ssion 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 (S 2531): Thorn v. Moore, 21-285. I debt: Penley 1. Waterhouse, 3418.

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 pro-
when barred.
R. 2 2752.

visions 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 origi-
nated ; but no judgment thereon except for costs can be rendered
in favor of the party so pleading the same.
Section applied: Allen v. Maddox, i 40-124.

Sec. 2541. When the commencement of an action shall be Injunction or

stayed by injunction or statutory prohibition, the time of the coustatutory pro- tinuance of such injunction or prohibition shall not be part of the hibition,

time limited for the commencement of the action.

Sec. 2542. The provisions of this chapter shall not be appliSchool fund. cable to any action brought on any contract for any part of the 9 G. A. Ch, 148, 2 13.

Similar provision, see § 1880.


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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 assignment not the payee or indorsee: McDow-made otherwise than by indorsement:

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