47 Kan. 324 | Kan. | 1891
The plaintiffs, who are alleged to be the sole heirs at law of Francis Myers, deceased, who died intestate in April, 1869, brought this action in the district court of Sedgwick county against the defendant, Cynthia Center, who was formerly the wife of Francis Myers, deceased, asking for relief on account of the fraud of the defendant. The petition was in two counts, in which it was substantially alleged that Francis Myers and the defendant were married to each other in Indiana in 1852, and lived together as husband and wife until the fall of 1859; that in 1858 or 1859 Francis Myers sold his farm and other property and with the defendant moved to Iowa; that in the fall of 1859 Francis Myers was taken sick, and while he was confined to his bed his wife secretly absconded, taking with her a team and wagon of the value of $400, and $1,600 in money, the property and money of her husband; that she “fled from the state of Iowa, and soon thereafter changed her name, and removed from place to place, so that the said Francis, during his life-time, although making diligent search therefor, was unable to learn where she had gone, or her place of residence; that said Francis Myers died in April, 1869, without having heard from defendant, or knowing where she had gone; that plaintiffs, after the death of said Francis Myers, were unable to learn of the whereabouts of the defendant until within the past two years.” It is alleged that the defendant has invested the money so obtained from time to time in real property situated in Sedgwick county, Kansas, and that such property in fact belongs to the plaintiffs, who are the sole heirs of Francis Myers, who died intestate in Iowa, leaving no debts. In one count the plaintiffs ask that defendant be declared to hold the property in trust for them, and to account for the rents and profits of the same, and that she be required to convey the property to the plaintiffs. In the other count they ask for judgment against her for the sum of $2,000, with 7 per cent, annual interest thereon from October, 1859. The defendant demurred to the
The ruling on the demurrer was correct. The causes of action which the plaintiffs attempted to state are manifestly based on the fraud of the defendant, and, if they ever existed, are barred by the statute of limitations. Such an action can only be brought within two years after the cause of action shall have accrued. (Civil Code, §18, subdiv. 3; Young v. Whittenhall, 15 Kas. 579; Main v. Payne, 17 id. 608; Doyle v. Doyle, 33 id. 721.) The averments of the petition disclose that the fraud was consummated over 30 years ago, but the plaintiffs rely upon the exception that the cause of action does not accrue until the discovery of the fraud. As it was apparent upon the face of the petition that the fraud was consummated and that the cause of action, was complete in 1859, it devolved upon the plaintiffs to plead this or any other exception which would take the case out of the operation of the statute of limi7 tations. (Young v. Whittenhall, supra.) The averments of the petition show not only the commission of the fraud, but that it was discovered soon afterward by Francis Myers, in his lifetime, as it is alleged that he made diligent search to find her, but that he died in 1869 without finding her or the property which she carried away. It is the failure to discover the fraud, and not the inability to find the person who has committed the fraud, which gives rise to the exception that has been mentioned.
The plaintiffs also claim that the allegation that the defendant absconded and concealed herself brings the case within the exception provided in § 21 of the civil code. It is not enough . to establish an exception that the defendant absconded from Iowa, or concealed herself elsewhere than in Kansas. “ The words absconding and concealing as used in that section refer
The judgment of the district court will be affirmed.