287 P. 949 | Idaho | 1930
Different phases of the controversy between appellants and respondent bank have twice previously been before this court. (Steinour v. Oakley State Bank,
Appellants, husband and wife, owned a tract of land in Twin Falls county which they mortgaged to one Edwards. On foreclosure, the property was bid in by an individual who assigned his certificate of sale to respondent bank. Period for redemption expired December 13, 1912. Tender of the amount due was made by appellants on the day following, and respondent bank refused to accept it. Sheriff's deed was later issued to the bank and appellants surrendered possession of the property. February 15, 1916, appellants filed a complaint against the bank, and later an amended complaint in the nature of an action to quiet title, *296
containing also allegations of fraud. Judgment of the district court dismissing the action for failure of appellants to plead further, after the entry, of orders sustaining a demurrer and motion to strike certain allegations of the amended complaint, was reversed on appeal under the citation first above. The effect of the decision mentioned was to remove from the amended complaint of appellants the allegations of fraud and to overrule the demurrer. Thereupon, appellants filed a second amended complaint in the usual form of an action to quiet title. The bank filed a cross-complaint of like import. On trial of the cause the district court entered a decree quieting title to the property in the bank. An appeal was again perfected, and this court held (
Within a month of the sending down of the remittitur under the decision last above referred to, appellants commenced the present action, a second amended complaint setting up the history of the transaction from its inception, alleging appellants were fraudulently dealt with by the bank in regard to a redemption of the property from foreclosure, offering to pay any and all amounts due under the mortgages or assessments against the property, asking for an accounting as to the rents and profits thereof, and seeking a redemption of the premises. Demurrers to said complaint having been interposed, principally on the ground of the running of the statutes of limitation against the cause of action, the same were by the court sustained and judgment entered dismissing the action. This appeal is taken from said judgment. *297
The one question here is whether or not the statutes of limitation have run against appellants' cause of action as set out in the complaint above. However the equities of the case be viewed, it is well settled these statutes apply both to equity and law cases and to the most meritorious (claims. (37 C. J. 684, 740.)
At the time of commencement of the present action appellants had been out of possession of the property involved for over fifteen years. Such period is greatly in excess of any within which an action predicated for relief as is appellants' may be instituted in this jurisdiction. (C. S., secs. 6596, 6597, 6611, 6619.) It is apparent, therefore, that unless appellants can be shown to be within some exception to these statutes, their action is barred. They urge an interpretation of C. S., sec. 6626, whereby the action may be said to be timely. That section provides:
"If an action is commenced within the time prescribed therefor and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal."
The action with which we are here concerned was commenced within a year after the entry of judgment by this court upon the appeal considered and disposed of in
If the allegations of fraud contained in appellants' initial complaint of February 15, 1916, were not at that time barred by the statute of limitations, they were entirely abandoned as shown by their waiver and withdrawal of the specification of error that the district court erred in striking them from the complaint. (Steinour v. Oakley State Bank,
The judgment must be affirmed, and it is so ordered; costs awarded to respondents.
Givens, C.J., and Lee, Varian and McNaughhton, JJ., concur. *299