203 P. 287 | Idaho | 1921
This is an action on a promissory note. Appellant answered admitting the execution of the note but denying that any sum was due thereon. Appellant also alleged that he had received no consideration for the note in that it was obtained by respondent through his fraudulent representations. The allegations with reference to the fraudulent representations of respondent are in substance the following: That on or about June 29, 1914, respondent was the owner of a certain tract of land, describing it, and represented to appellant that the land contained approximately sixty acres under cultivation and requested appellant
At the same time appellant filed a cross-complaint, asking for the cancelation of the note and the recovery of the amount previously paid to respondent. Respondent demurred to the answer and to the cross-complaint, upon the grounds, first, that the matter set forth in the defense and in the cross-complaint was not sufficient to constitute a defense or cause of action; and second, that both the defense and the cross-complaint were barred by the statute of limitations. The cross-complaint contains the following allegation : ‘ ‘ That this cross-plaintiffi did not discover the falsity of the representations so made by the cross-defendant until some time in April, 1915, . . . . ” Manifestly, this is not an allegation of the discovery of the facts constituting the fraud so as to remove the bar of the statute, and the demurrer to the cross-complaint was properly sustained on the ground that the cause of action therein alleged was barred
So far as the demurrer to the defensive matter contained in the answer is concerned, we think the statute of limitations cannot be pleaded against such matter. The statute of limitations does not apply to defenses, but only where affirmative relief is sought. (25 Cyc. 1194; 17 R. C. L. 745; Louisville Bank Co. v. Buchanan, 117 Ky. 975, 4 Ann. Cas. 929, 80 S. W. 193; Sebree v. Patterson, 92 Mo. 451, 5 S. W. 31; Buck v. Equitable Life Assur. Soc., 96 Wash. 683, 165 Pac. 878; Wyatt v. Collins, 105 Kan. 182, 180 Pac. 789, 992; Mason v. Peterson (Tex. Civ.), 232 S. W. 567.)
This principle was referred to by Justice Budge in his dissenting opinion in the case of Wonnacott v. Kootenai County, 32 Ida. 342, at page 351, 182 Pac. 353. Respondent relies upon the case of Williams v. Shrope, supra. In that case, as in this, there was both an answer and a cross-complaint. From the opinion it would seem that it was held that the demurrer was properly sustained to the answer, as well as to the cross-complaint. If such was the holding in that case we are not in accord with it, to the extent that it holds that the statute of limitations may be pleaded against matter purely defensive.
In the case at bar, however, the facts set forth in the answer were not sufficient to constitute a defense and the demurrer was properly sustained. It may be that there was an attempt to allege that respondent, in order to effect a sale of land, fraudulently induced appellant to examine a tract of land other and different from the one which was afterwards conveyed to him, but certainly the allegations of the answer fall far short of so stating. The answer also fails to show injury to appellant. The answer states that the land actually conveyed to appellant was worth less by an amount exceeding $800 than the tract of land contracted
The judgment is affirmed, with costs to respondent.
