Johnson v. Hopkins

19 Iowa 49 | Iowa | 1865

Dillon, J.

i. statute TioNs?reai ana personai actions. The controlling question in this case arises upon the statute of limitations pleaded and insisted upon by the defendants. The contract x ° SOught to be enforced is dated May 22, 1838. Wade, the ancestor of the defendants, died in the fall of 1843. When he procured title from the United States is not shown by the evidence, but it was at some time prior to his death. The plaintiff had a right of action, therefore, upon the contract in suit as early as 1843.

Our statute also provides (R. S., § 2740; Code, § 1659) that actions “ founded on written contracts, or where brought for the recovery of real property,” must be commenced “ within ten years ” after the cause of action accrues and not afterwards.

Whether the present be treated as an action on the written contract, or as an action for the recovery of real property, makes no difference, for the limitation period is alike. Under prior decisions in a kindred case, and under a kindred statute, the present might be regarded as in the nature of a real as distinguished from a personal action, ( Wright v. Le Claire, 4 G. Greene, 420; S. C. elaborately considered, 3 Iowa, 221.) But the point is not important,, for now the limitation period is the same.

It is definitely settled by previous adjudications, that under the present statute of limitations, all actions for the recovery of real property commenced since .July 1st, 1856, must be commenced within ten years after the cause of action accrued. (Montgomery v. Chadwick, 7 Iowa, 114, S. P.; Wright v. Keithler, Id., 92 ; Kilbourne v. Lockman, 8 Id., 380, overruling Phares v. Walters, 6 Id., 108.)

And the same rule applies to personal actions on written contracts. (Bennett v. Bevard, 6 Id., 82.)

2._eqmt-able oases. The present action was brought at least sixteen years after the cause accrued, and more than three years after an action at law, whether real or personal, would j^ye been barred. This presents, in our view of the case, a question whether our present statute of limitatations (Rev., chap. 116) was intended to apply (as to all cases therein provided for) to courts of equity as well as to courts of law; Referring to the English statutes of limitation, Lord Redesdale, in Hevenden v. Lord Annesley, 2 Sch. & Lefr., 329, says : “ Courts of equity are not within the words of the statutes, because the words apply only to■ particular legal remedies ; but they are within the spirit and meaning of the statutes, and have always been so considered.” (See, on this point generally, Elmendorf v. Taylor, 10 Wheat, 168; Farnum v. Brooks, 9 Pick., 242 ; Wright v. Le Claire, 3 Iowa, 221; Angell on Limit., chap. 3; Bank v. Daniel, 12 Pet., 56; Borst v. Corey, 15 N. Y., 505; Newman v. De Lorimer, post.)

Whether, and how far, matters of a purely and exclusively equitable nature not cognizable at law, are embraced in the words or purpose of our statute, we need not-decide or even discuss, for -admitting that cases of-direct or express trusts are not any more than formerly •within the statute, and that courts of chancery in this State have still the power to interpose, to prevent the statute from being used against conscience, we are Still of the opinion that the plaintiff has made out no such equitable case, as should induce us to refuse obedience to the statutes, or to refuse to- apply its analogies to an antiquated and dormant demand.

The executory contract sought to be enforced, does not constitute a case of a direct or express trust of the character which, in equity, has been considered not to be barred by the statute. (Angell on Limit., chap. 16, and chap. 35, notes and cases; and leading American cases of Kane v. Bloodgood, 7 Johns. Ch. 90, affirmed in Court of Errors, 8 Cow. 303.) If the present action is for the real estate, and is a real action, or an action in that nature, it is barred by the express language of the statute. So if it is an action upon the “ written contract." If, abandoning these positions, the plaintiff claims that having paid the purchase-money, it is a case of trust, still it is a trust raised by implication of law,- and within the statute, or at least subject to its application by way of analogy or imitation. (Burham v. James, 1 Spear South Car. Eq. Rep., 375; Angell on Limit., §§ 167, note, 178, 469, 473; Murdock v. Hughes, 7 Sme. and Mar., 219.)

We fail to perceive any strong equitable circumstances in this cause to displace the bar of the statute or prevent its application, or to prevent a court of equhy from entertaining its salutary suspicion against stale demands. (Plett v. Burchard, 4 Edw. Ch., 30; Kingsland v. Roberts, 2 Paige, 123.) ,

The laches of the plaintiff stands wholly unexcused. He has all the time been sui juris. He has not been ignorant of the existence of his claim. He gives no reason for the delay. It is true that he has been a non-resident of the State, but this alone is a circumstance of little weight. He does not complain of any fraud practiced upon Mm. He has made no improvements. He has never paid any taxes upon the land. He has not, in one respect, made such a case as that he could recover against Wade's estate, on an ordinary money demand; for it is a significant circumstance, that he neither verifies his petition, or is examined as a witness in the case, for any purpose. How can we say, in view of the death of the other party to the contract, but that the plaintiff was unwilling to vouch, with his oath, for the subsisting justice of the claim. The plaintiff is a competent witness, certainly as to all the facts transpiring since the death of Wade. He could have explained his delay if it admitted of explanation, and have shown why, after the lapse of twenty-one years after its date, the contract is resurrected from its long sleep and sought to be indued with vitality, and enforced against the widow and children of the other party thereto. The contract in suit may have been rescinded by parol and not surrendered to Wade; in truth, the facts and the conduct of the plaintiff wholly accord with the supposition that this may have been so. The circumstance that the executors, upon the information of McKell, and under the advice of counsel, did not, for prudential reasons, offer this lot for sale or sell the same, has no decisive weight, particularly as respects the heirs, who-are the real parties in interest. It fares hard enough with dead men’s estates, without enforcing against them, in a court of conscience, contracts on which, without explanation or objection, the dust of over twenty years has settled. Let a decree be here entered reversing the decree below and dismissing the petition.

Eeversed.