State ex rel. Barringer v. Hawkins, 77 S.W. 98

ELLISON, J.

— The defendants are sureties on the official bond of W. H. Hawkins, a notary public of Nod-away county, and plaintiff brought this action against them for the malfeasance of Hawkins in falsely certifying that he had taken the acknowledgment to a certain deed of trust (which he had forged) to secure the payment of a note of $1,000 to the plaintiff. The judgment in the trial court was for plaintiff.

The defense of the surety defendants is that the statute governing notaries and their duties prescribes that no suit shall be instituted against a notary or his sureties more than three years after the ‘ ‘ cause of action accrued.” Sec. 8836, R. S'. 1899. It is conceded that at the time this action was instituted more than three years had elapsed since the forgery of the deed of trust and the making of the false certificate. But plaintiff seeks to avoid the apparent running of the statute by showng that the notary fraudulently and corruptly concealed his act for a long space of time. That he paid interest to plaintiff on the sum which he pretended he had loaned for him, pretending that the person he represented as the borrower had left it with him to pay to plaintiff; and in other ways kept alive in plaintiff the implicit belief that the loan had really been made and that the deed of trust, including .the certificate of acknowledgment, was genuine. That within one year after he learned of the notary’s gross fraud and deception he brought the present action. The question is, when did the cause of action accrue? The contention of the parties is this: Defendants insist that it accrued when the notary made the false certificate; and plaintiff insists that it did not accrue until he discovered the fraud and concealment. Our conclusion is that it accrued when plaintiff discovered the fraud; or, when, by proper diligence as an ordinarily prudent man, he, under the circumstances, should have discovered it.

Our general statute of limitations declares that its provisions shall not apply to cases where the defendant’s improper conduct prevents the action being brought. Sec. 4290, R. S. 1899. But the limitation relied on by ■defendants is a special limitation, presented by the notary statute, and it is declared by the general limitation law: “The provisions of this chapter shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.” Sec. 4292. From those provisions it is clear that no part of the general statute of limitations finds application to the case. We are thus left to answer the question of when did the cause of action accrue, independent of any statute.

In Revelle v. Railroad, 74 Mo. 438, the Supreme Court held that the time in which an action should be brought against a railroad for double damages for killing stock was governed by a special statute of limitations and on that account was, by the general statute itself, excluded from the influence of the latter statute; and that the action must be brought within the three years, regardless of the railroad’s fraudulent concealment of the killing. But that statute (Section 1710, Revised Statutes 1879) provided that the action should be “commenced within three years after the commission of the offense, and not after,” whereas the statute now under consideration prescribes, as already said, that the suit must be brought within three years after the cause of action accrued. That statute left no room for construction since it fixed upon the time by naming a specific and definite period, while this statute uses an expression, “cause of action accrued,” which leaves something to be determined more than a mere calculation of time.

After full consideration we have concluded that the cause of action did not accrue so as to enable the notary to take advantage of it, so long as his fraudulent concealment prevented plaintiff from knowing, in the exercise of the diligence which an ordinarily prudent man under the same circumstances would have exercised, that he had a cause of action. One of the theories which support a statute of limitations, and which, justify such statute, is that a creditor, or an injured party, is given a reasonable time in which to go into court for redress of his grievance, whatever it may be. And that if he lies idly by, neglecting to seek redress for the specified time, he is cut off. He has slept on his rights until, from the ■policy of the law that disputes should have an end, and from justice to the opposite party who may lose his means of protection and defense, he should not be permitted at such late day to ask relief. When the party, who is thus protected by the statute, himself fraudulently conceals from the other, by acts which would deceive an ordinary prudent man in the same situation, that there is a cause of action, that other can not be accused of lack of diligence. For he can not be blamed for not bringing into court that which his opponent fraudulently prevented him from knowing existed. And no sympathy need be wasted on the fraudfeasor by reason of his losing the protection of the statute, since he brought it upon himself by his own misconduct. We have not been cited to a direct adjudication of the question in this State. But in Shelby Co. v. Bragg, 135 Mo. 298, it is plainly intimated that the rule exists without the aid of a statute. The court said that “whether by force of the statute or independent of it, a fraudulent concealment of a cause of action will delay the operation of the statute of limitation until after discovery of the fraud. Thus, in an action to recover from a sheriff or constable, money collected on process, it was held that the statute did not commence to run until return of process was made by the officer or there had been a demand of payment by the party in interest. State ex rel. v. Minor, 44 Mo. 373; Kirk v. Sportsman, 48 Mo, 383. These cases refer to no statute as a basis for the exception.” It is said in 19 Am. and Eng. Ency of Law (2 Ed.), p. 243, that it was once the doctrine that exceptions to the statute on account of fraud were only recognized in equity where the statute itself omitted any exception. But that the later rule was “to engraft on the statutes an implied exception in favor of cases where the defendant fraudulently conceals the cause of action. ’ ’ The case of Liberman v. Bank, 2 Penrswells (Del.) 416, was in equity, but the rule is stated after full examination to be at law as just quoted.

2. There is, however, as issue in such cases whether the plaintiff had been neglectful — whether he had used due diligence to ascertain the fraud and concealment, regard being had to its nature and character. And this is stated to be the rule in Shelby Co. v. Bragg, supra, as well as in the encyclopedia just cited.

3. As has been stated, this action is against the sureties alone, and from that fact it has been urged that while the improper conduct of the principal in concealing the cause of action might prevent the starting of the statute as against him, it would not have that effect as against the sureties. The law does not support this contention. Bradford v. McCormick, 71 Iowa 129. While the sureties in this case have not been in the least guilty of any fraud, yet they stand good for the officer and when they are liable for his default, the default and their liability continues during the continuance of his fraudulent misconduct. • -

Notwithstanding we approve of the view taken of the matters foregoing by the learned trial judge, we find that the judgment should be reversed for the reason that the jury were not required in plaintiff’s instructions to pass upon the question whether plaintiff could have dis-' •covered the fraud sooner than he did by the exercise of reasonable diligence. That inquiry was wholly omitted.

The instructions offered for defendant were properly refused. They were too peremptory in tone. The jury should be left to judge from all the circumstances whether plaintiff, acting as a man of ordinary prudence and diligence, would have discovered the fraudulent concealment. It may be that a retrial might disclose that plaintiff should have discovered the fraud at some period of the time after its perpetration, earlier than he did. The statute would begin to run from the time when he should have discovered it, if there was, in truth, such time before he actually did make the discovery.

The judgment is reversed and cause remanded.

All concur.

Case Details

Case Name: State ex rel. Barringer v. Hawkins

Court Name: Missouri Court of Appeals

Date Published: Nov 23, 1903

Citations: 77 S.W. 98; 103 Mo. App. 251; 1903 Mo. App. LEXIS 295

Court Abbreviation: Mo. Ct. App.