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that the fees heretofore devoted to the compensation of such officers be paid into the respective county treasuries, and constitute a fund for that purpose. The principal portion of the fees heretofore applied to the payment of salaries was the percentages, usually styled commissions. If these percentages were not included in the word "fees," the salary fund might be trifling in amount.
It should be borne in mind that the state's portion of the taxes is collected by county officers. It is but just, therefore, that the commissions on this portion should be paid into the county treasuries and go into the salary fund. If it were otherwise, the entire expense of collecting the state's portion of the revenue would fall on the counties. Under the system, as we construe it, the state and county each will pay the expense of collecting its own revenue.
The judgment of the court below is without error and must be affirmed.
J.; MCKEE, J.
(68 Cal. 52)
MYRICK, J.; MORRISON, C. J.; Ross, J.; McKINSTRY,
GERMAN SAVINGS & LOAN Soc. v. HUTCHINSON, Ex'x, and others. (No. 8,563.)1
Filed November 24, 1885.
1. STATUTE OF LIMITATIONS-AGREEMENT FOR RENEWAL OF MORTGAGE.
An agreement made after the maturity of a note and mortgage, and executed by the mortgagor to the mortgagee, in which, after reciting the loan and execution of the note and mortgage, and place of record of the latter, and that the mortgagor was desirous of extending the loan, it is provided "that the time for the payment of the said promissory note shall be extended to, and the said note shall not mature or be payable until, the thirteenth day of De cember, 1874, provided that this agreement shall not affect or impair any other covenant or condition in the said promissory note or mortgage contained, but that they shall remain in as full force and effect as if this agreement had not been made," is an agreement for a renewal of the note and mortgage within the statute. Civil Code Cal. § 2922.
2. SAME-ESTATES OF DECEDENTS-CLAIMS, PRESENTATION OF.
The statute of limitations does not run against a claim founded on a note and mortgage, after the same have been presented to and allowed by the executor of & deceased mortgagor. Code Civil Proc. Cal. § 1569.
3. SAME-CLAIM FOR PAYMENT OF TAXES AND ASSESSMENTS, AND ATTORNEY'S FEES.
Payments made for taxes and for street assessments and attorney's fees, as provided for in a mortgage executed by decedent, after presentation of a claim founded on a note and mortgage, are properly allowable on foreclosure without presentation.
In bank. Appeal from superior court, city and county of San Francisco.
W. H. Allen, for appellant.
Jarboe & Harrison, for respondent.
MYRICK, J. The questions involved in this appeal relate to an alleged renewal of a note, and thereby of a mortgage, regarding the
1 See note at end of case.
bar of the statute of limitations. December 30, 1872, the testator executed to the plaintiff his promissory note for $1,500 and interest, payable in one year. The payment of the note was secured by mortgage of even date. On the fifth of January, 1874, (after the maturity of the note,) the testator executed to the plaintiff an instrument in which, after reciting the loan of $1,500 and the execution of the note and mortgage, and the place of record of the latter, and that he was desirous of extending the loan, it was agreed "that the time for the payment of the said promissory note shall be extended to, and the said note shall not mature or be payable until, the thirtieth day of December, 1874: provided, that this agreement shall not affect or impair any other covenant or condition in the said promissory note or mortgage contained, but that they shall remain in as full force and effect, as if this agreement had not been made.
We are of opinion that this agreement was a renewal of the note and mortgage, within section 2922 of the Civil Code. The maker of the note died September 21, 1875, and the claim upon the note was presented to the executrix of his estate May 7, 1876, and allowed and approved. No issue was tendered in the answer as to the presentation, allowance, or approval of the claim. This action to foreclose the mortgage was commenced July 30, 1879.
1. We are of opinion the action was not barred by the statute of limitations. "No claim against any estate, which has been presented and allowed, is affected by the statute of limitations pending the proceedings for the settlement of the estate." Code Civil Proc. §
2. The payments of taxes and street assessments were made under authority given in the mortgage, and when such payments are made after the presentation of the claim they are properly allowable on foreclosure without presentation.
3. The attorney's fee on foreciosure was provided for in the mortgage, and was properly allowed.
No error appears. The judgment and order are affirmed.
MORRISON, C. J.
Ross, J.; McKINSTRY, J.; THORNTON, J.; MCKEE, J.;
Statute of Limitations.
Statutes of limitations are statutes of repose, Hurley v. Cox, 2 N. W. Rep. 705; Letson v. Kenyon, 1 Pac. Rep. 562; Taylor. v. Miles, 5 Kan. 499; Elder v. Dyer, 26 Kan. 604, and are enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the power to sue. Such reasonable time is there fore defined and allowed. But the basis of the presumption is gone whenever the ability to resort to the court has been taken away; for in such a case the creditor has not the time within which to bring his suit that the statute contemplated he should have. Greenwald v. Appell, 17 Fed. Rep. 140. The object of the statute is to suppress fraudulent and stale claims, and prevent them from showing up at great distances of time, and surprising the parties or their representatives when all the proper vouchers and evidence are lost, or the facts have become obscure from the lanse of time, or the defective memory or death or removal of witnesses. Hurley v. Cox, 2 N. W. Rep. 705; Spring v. Gray, 5 Mason, 523.
1. WHEN STATUTE BEGINS TO RUN. Where a statute of limitations provided that in cases where the cause of action had already accrued at the passage of the act a party should have the whole period prescribed by the act, after its passage, in which to commence action, and by another act of the same legislative session it was provided that said statute and others should take effect at a day subsequent to the date of their actual passage and approval by the governor, it was held that the period of limitation did not begin to run until the statute took effect, as provided in the second act. Schneider v. Hussey, 1 Pac. Rep. 343; Rogers v. Vass, 6 Iowa, 408.
(1) Agents. As a general rule the statute of limitations does not commence to run in favor of an agent and against his principal until the principal has knowledge of some wrong committed by the agent inconsistent with the principal's rights. Perry v. Smith, 2 Pac. Rep. 784; Green v. Williams, 21 Kan. 64; Auld v. Butcher, 22 Kan. 40; Kane v. Cook, 8 Cal. 449; Ang. Lim. ? 179 et seq., 7 Wait, Act. & Def. 238. But it has been held that where an agent is appointed to collect money and remit, after deducting his reasonable charges, and fails to do so after a reasonable time, the statute of limitations commences to run. Mast v. Easton, 22 N. W. Rep. 253. See Stacy v. Graham, 14 N. Y. 492; Lillie v. Hoyt, 5 Hill, 395; Hart's Appeal, 32 Conn. 520; Campbell's Adm'rs v. Boggs, 48 Pa. St. 524; Denton's Ex'rs v. Embury, 10 Ark. 228; Estes v. Stokes, 2 Rich. Law, 133; Mitchell v. McLemore, 9 Tex. 151; Hawkins v. Walker, 4 Yerg. 188. The fact that the principal did not know when the claim was collected, and hence did not know that the agent had failed in the performance of his duty, and that a right of action had accrued, will not affect the running of the statute. Mast v. Easton, 22 N. W. Rep. 253; Cock v. Van Etten, 12 Minn. 522, (Gil. 431.)
(2) Bankruptcy. The statute of limitations is no bar to proof in bankruptcy if it had not run against the claim at the commencement of the proceedings in bankruptcy, In re McKinney, 15 Fed. Rep. 912; and no lapse of time will prevent the proof of the claim before the register, up to the final distribution of dividends. If it is so barred by the statute before the adjudication, it will remain barred, and the claim cannot be proven. In re Graves, 9 Fed. Rep. 816.
(3) Bills, etc. In a suit by the drawee of a bill of exchange against an indorser, where such bill was drawn by the treasurer of the United States, and the name of the payee forged, the statute of limitations does not begin to run until judgment has been obtained by the United States against the drawee. Merchants' Nat. Bank of Baltimore v. First Nat. Bank of Baltimore, 3 Fed. Rep. 66.
(a) Claims Payable on Demand. Where no time is specified within which a loan of money is to be repaid, the presumption of the law is that it was to be paid on demand, and the statute of limitations commences to run from the time of the loan. Dorland v. Dorland, 5 Pac. Rep. 77; Ang. Lim. 95. On a due-bill without day of payment a cause of action accrues on delivery, and the statute begins to run. Douglass v. Sargent, 4 Pac. Rep. 861. See Palmer v. Palmer, 36 Mich. 487; Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Stover v. Hamilton, 21 Grat. 273; Bowman v. McChesney, 22 Grat. 609. In an action to recover from a bank a general deposit, the statute does not commence to run until a demand, unless the demand has been in some way dispensed with. Branch v. Dawson, 23 N. W. Rep. 552. And the same is true of an "especial deposit." Smiley v. Fry, (N. Y.) 3 N. E. Rep. 186.
(4) Bonds. (a) Administrator's Bond. The liability of a surety on an administrator's or executor's bond is not fixed, and no cause of action arises thereon until there is a judicial ascertainment of the default of the principal, and from this time the statute of limitations begins to run. Alexander v. Bryan, 4 Sup. Ct. Rep. 107. This judicial ascertainment must be something more than the mere auditing of the accounts. There must be a decree ordering payment, on which process to collect can issue against the principal. Id.
(b) Appeal-Bonds. The statute commences to run in favor of sureties on an undertaking on appeal from the date of the affirmance of the judgment to which it relates. Clark v. Smith, 6 Pac. Rep. 732; Crane v. Weymouth, 54 Cal. 480; Castro v. Clarke, 29 Cal. 11.
(c) Guardian's Bond. The statute commences to run against suit on guardian's bond when the person ceases to be guardian, Probate Judge v. Stevenson, 21 N. W. Rep. 348; and in case of a default, a right of action first accrues to the ward when amount of such default is ascertained by the court in the settlement of the guardian's final account, and from this time the statute runs. Ball v. La Clair, 22 N. W. Rep. 118.
(d) Public Officer's Bond. The statute does not commence to run in favor of sureties on the bond of a public officer until the liability of their principal has been fixed. Lawrence v. Doolan, 5 Pac. Rep. 484. And it has been held that where an assessment of damages for a right of way is paid to a sheriff, the statute begins to run against an action on sheriff's bond to recover such assessment when the time fixed by law for appeal has expired. Lower v. Miller, 23 N. W. Rep. 897.
(5) Book-Accounts. On the settlement of a book-account it has been held that the statute of limitations begins to run from the time the account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made. Kirby v. Lake Shore & M. S. R. Co., 14 Fed. Rep. 261. On an open, mutual account the statute does not commence to run until the date of the last item charged. Hannon v. Engelmann, 5 N. W. Rep. 791. Where an open account is closed by an agreement that certain parties shall assume payment, the statute runs from the date of such agreement. Hammond v. Hale, 15 N. W. Rep. 585. But where the items of an account are all charged against one party it is not a mutual account, Fitzpatrick v. Henry, 16 N. W. Rep. 606; Butler v. Kirby, 53 Wis. 188; S. C. 10 N. W. Rep. 373; Ang. Lim. ?? 148, 149; and each item will stand, as regards the running of the statute, as though it stood alone. Courson's Ex'rs v. Courson, 19 Ohio St. 454. See Blair v. Drew, 6 N. H. 235; Smith v. Dawson, 10 B. Mon. 112; Craighead v. Bank, 7 Yerg. 399; Lowe v. Dowborn, 26 Tex. 507; Cottam v. Partridge, 4 Man. & G. 271; Williams v. Griffiths, 2 Cromp., M. & R. 45; Tanner v. Stuart, 6 Barn. & C. 603; Bell v. Morrison, 1 Pet. 351.
(6) Contribution. On an action for contribution by one of the sureties on a note, against whom a judgment has been taken for the full amount, the statute begins to run from the date of the payment of such judgment. Preston v. Gould, 19 N. W. Rep. 834. See Lamb v. Withrow, 31 Iowa, 164; Johnston v. Belden, 49 Iowa, 301.
(7) Conversion. The statute commences to run against an action for conversion from the date of such conversion. Doyle v. Callaghan, 7 Pac. Rep. 418.
(8) Corporation-Municipal. In an action against a municipal corporation for damages for an injury caused by defective sidewalk, the statute begins to run from the time when such claim is disallowed, or the failure of the council to act on the matter amounting to a disallowance. Watson v. City of Appleton, 22 N. W. Rep. 475. It was held by the supreme court of Ohio in Perry Co. v. Railroad Co., 2 N. E. Rep. 854, that where a railroad company had injured a county bridge, that the statute did not begin to run against a claim on the part of the county against the railroad company for damages until after the bridge had been restored to its former condition by the county commissioners.
(9) Corporations-Stockholders. In an action against a stockholder to subject his unpaid shares of stock to satisfaction of a judgment against a corporation, the statute begins to run when the cause of action against the corporation accrued. First Nat. Bank of Garrettsville, Ohio, v. Greene, 17 N. W. Rep. 86; affirmed on rehearing, 20 N. W. Rep. 754; Baker v. Johnson Co., 33 Iowa, 155. See Prescott v. Gonser, 34 Iowa, 175; Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037. Where one corporation transferred to another all its property, except its franchise, and such other corporation assumed to pay all debts, and a creditor of the grantor, whose claim of action arose before the conveyance was executed, but not yet barred by the statute of limitations, brought suit at law against the grantor, and obtained judgment on which an execution was issued, but returned unsatisfied, and then, after the time fixed by the statute of limitations had run since the cause of action arose against the grantor, brought suit in equity against the grantor and the grantee, it was held that the claim was neither barred by laches nor the statute of limitations. Fogg v. St. Louis, H. & K. R. Co., 17 Fed. Rep. 871. As to an action by stockholder suing in his own name for benefit of all stockholders against directors for misappropriation, etc., see infra, (31, a.)
(10) Co-Tenants. The statute does not run as against tenants in common until actual ouster. Hume v. Long, 5 N. W. Rep. 193. A quitclaim deed by one tenant in common will not set the statute running as against other tenants in common. Moore v. Antell, 6 N. W. Rep. 14; Hume v. Long, 5 N. W. Rep. 193.
(11) Covenant. The statute of limitations commences to run against a covenant from the time substantial damage is sustained. Post v. Campau, 3 N. W. Rep. 272. Where land, the paramount title being in another, is conveyed with covenant of seizin, the covenant is broken on the delivery of the deed, and the statute begins to run. Sherwood v. Landon, 23 N. W. Rep. 778; Matteson v. Vaughn, 38 Mich. 373.
(12) Decedents, Estates of. The statute commences to run against a rejected claim on the estate of a decedent from the time of its actual rejection. Bank of Ukiah v. Shoemake, 7 Pac. Rep. 420. A claim against an estate is not barred because not presented for allowance in time, when, at that time, there was no claim which could be presented for allowance against the estate. Ford v. Smith, 18 N. W. Rep. 925.
Where a cause of action accrues to a person's estate after his death, the statute of limitations commences to run from the date of the accrual, Hibernia S. & L. Soc. v. Conlin, 7 Pac. Rep. 477; Tynan v. Walker, 35 Cal. 634; although there was no person in existence competent to sue, and continues to run from such date without cessation, Tynan v. Walker, 35 Cal. 634; for where the statute of limitations once begins to run, no subsequent disability will stop its running. Oliver v. Pullam, 24 Fed. Rep. 127.
(13) Dower. The statute of limitations does not commence to run against an action to recover dower until there is an adverse possession of the land. Felch v. Finch, 3 N.
W. Rep. 570; Phares v. Walters, 6 Iowa, 106; Starry v. Starry, 21 Iowa, 254; Rice v. Nelson, 27 Iowa, 153; Sully v. Nebergall, 30 Iowa, 339.
(14) Fraud. The statute of limitations does not run against an action based on a fraud until the discovery of the fraud. Perry v. Wade, 2 Pac. Rep. 787; Clews v. Traer, 10 N. W. Rep. 838; Voss v. Bachop, 5 Kan. 59. And it was recently held by the supreme court of Pennsylvania, in the case of Hughes v. First Nat. Bank of Waynesburg, 1 Atl. Rep. 417, that where government bonds were deposited with a bank for safe-keeping and afterwards pledged by the bank as collateral security for its own debts, and actually sold by the holder, that the putting off of the depositor or his representative from time to time with promises to return the bonds so pledged, the interest being paid in the mean time, is such fraud and concealment as will toll the running of the statute of limitations. Where by actual fraud the debtor keeps his creditor in ignorance of the cause of action, the statute does not begin to run until the creditor had knowledge, or was put upon inquiry with means of knowledge, that such cause of action had accrued. Mere silence or concealment, however, will not toll the running of the statute when the relation existing between the parties is simply that of debtor and creditor. Stewart v. McBurney, 1 Atl. Rep. The question of discovery of fraud is a question of fact and must be properly pleaded. Johnson v. Powers, 13 Fed. Rep. 315. Where money is procured to be paid out upon fraudulent representation, the cause of action is presumed to have arisen, and the statute of limitations begins to run when the fraud was committed, Barlow v. Arnold, 6 Fed. Rep. 351; but such presumption may be avoided by alleging and proving the time of the discovery of the fraud. See Carr v. Hilton, 1 Curt. 390; Field v. Wilson, 6 B. Mon. 479; Carneal v. Parker, 7 J. J. Marsh. 455; Baldwin v. Martin, 3 Jones & S. 98; Erickson v. Quinn, 3 Lans. 302; Mitt. & T. Eq. Pl. 356; Story, Eq. Pl. 2 754. It has been held that the statute of limitations does not begin to run against an equitable action for relief, on the ground of fraud, until the aggrieved party has discovered the facts constituting the fraud, or has information of such a nature as would impress a reasonable man with the belief that a fraud had been committed, and would, upon diligent inquiry, lead to the discovery of the facts. O'Dell v. Burnham, 21 N. W. Rep. 635. See Carr v. Hilton, 1 Curt. 390; Kennedy v. Green, 3 Mylne & K. 699; Hovenden v. Lord Annesley, 2 Schoales & L. 607; Martin v. Smith, 1 Dill. C. C. 85; Bailey v. Glover, 21 Wall. 342; First Mass. Turnpike Corp. v. Field, 3 Mass. 201; Homer v. Fish, 1 Pick. 435; Rice v. Burt, 4 Cush. 208; Kane v. Bloodgood, 7 Johns. Ch. 90; App v. Dreisbach, 2 Rawle, 287; Reeves v. Dougherty, 7 Yerg. 222; Haynie v. Hall, 5 Humph. 290; Kuhn's Appeal, 87 Pa. St. 100. (15) Implied Contract. Where a cause of action is based on an implied contract, the statute does not begin to run until after the circumstances from which the obligation is inferred arose. Goodnow v. Stryker, 14 N. W. Rep. 345.
(16) Judgment. Where suit is brought upon a judgment after a return of nulla bona upon the execution writ, the statute of liniitations, it was held, commenced to run at the time of the return of the execution, and not the entry of the judgment. Taylor v. Bowker, 4 Sup. Ct. Rep. 397.
(17) Leasehold-Assignment. In a suit between the assignor and assignee of a leasehold, for rent accruing, and paid by the assignor subsequent to the assignment, the statute of limitations begins to run in favor of the assignee from the time the assignor paid the accrued rent, and not from the time assignor made default in the payment of the same. Ruppel v. Patterson, 1 Fed. Rep. 220.
(18) Married Woman. Where the statute makes the wife as well as the husband liable for necessary family expenses, the liability of the wife continues as long as there is a right of action against the husband. Frost v. Parker, 21 N. W. Rep. 507.
(19) Minor or Ward-Suit after Majority. The statute of limitations commences to run against an action by a ward to recover lands sold by his guardian at the time of ward's attaining majority. Seward v. Didier, 20 N. W. Rep. 12. See Spencer v. Sheehan, 19 Minn. 338, (Gil. 292;) Miller v. Sullivan, 4 Dill. 340; Good v. Norley, 28 Iowa, 188, (overruled by Boyles v. Boyles, 37 Iowa, 592;) Holmes v. Beal, 9 Cush. 223; Norton v. Norton, 5 Cush. 524; Arnold v. Sabin, 1 Cush. 525; Howard v. Moore, 2 Mich. 226; Coon v. Fry, 6 Mich. 506. Where the party who should bring an action for the seduction of a minor is the person who seduces her, the statute of limitations will not begin to run until after such minor attains her majority. Watson v. Watson, 18 N. W. Rep. 605. A party having a right to pursue her demand on attaining her majority cannot tack her subsequent disabilities by successive covertures, in order to prevent the operation of the statute of limitations. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449.
(20) Mortgage. The statute of limitations commences to run against an action to foreclose a mortgage when the cause of action accrued. Herdman v. Marshall, 22 N. W. Rep. 690; Cheney v. Cooper, 14 Neb. 415; S. C. 16 N. W. Rep. 471.