Myers v. Kirt

| Iowa | Dec 18, 1885

Roturock, J.

I. This cause has already been twice appealed to this court by the defendant Reekermire. See 57 Iowa, 421" court="Iowa" date_filed="1881-12-15" href="https://app.midpage.ai/document/meyers-v-kirt-7099758?utm_source=webapp" opinion_id="7099758">57 Iowa, 421, and 64 Id., 27. The judgment was reversed on the first appeal, because the evidence did not show that Reekermire had knowledge of and assented to the unlawful acts of Kirt of which plaintiff complained. On the second appeal the judgment was reversed for the reason that the instructions given by the court to the jury omitted to charge that the property could not be made subject to the damages without proof that the owner had knowledge of and assented to the unlawful sales. 'When the cause.- was remanded for a new trial, the plaintiff amended her petition by alleging that the defendant Rsckermire had full knowledge of all the facts stated in the original petition against Kirt, and gave his consent thereto with such knowledge. Reekermire answered, in substance, that more than two years had elapsed between the alleged transactions in the original petition and the filing of the amendment to the petition, and that, therefore, the action is barred by the statute of limitations. lie further pleaded that on the twenty-seventh day of May, 1882, he sold and conveyed the property in question to E. E. Kirt, and that since that time he has had no interest in said real estate. The demurrer raises the question as to the sufficiency in law of these two defenses.

We are clearly of the opinion that the demurrer was correctly sustained. The action was commenced ou the tenth day of May, 1880. It is exceedingly doubtful whether any amendment to the petition was necessary; but, conceding that it was, the original petition asserted a claim against tbe property and sought to subject it to tlie payment of the judgment for damages. It may not have stated all of the facts necessary in law to enable the plaintiff to succeed in the action, but it was not attacked by demurrer or motion. It Avould be a novel doctrine to hold that the statute of limitations continued to run notwithstanding the commencement of the action.

II. As to the second defense it is sufficient to say that the conveyance was made pending the action. But, even if no action was pending, it will be time enough to adjudicate any rights that defendant’s grantee has in the property when such grantee becomes a party to some question before the court.

Affirmed.