95 Vt. 335 | Vt. | 1921
The plaintiff appealed from the‘disallowance of certain claims against the estate of her brother, Gates L. Mulliken. The trial was by court on a complaint in the common counts in assumpsit, to which the defendant answered a general denial, payment, and the statute of limitations. The court found that none of the items of the plaintiff’s specification accrued within seven years prior to the death of said Gates L., except two that had been paid, and that certain credits relied upon to take the account out of the statute were specific payments, and not payments on account. The judgment was for the defendant, and the case is here on plaintiff’s exceptions.
G. G. 1863, provides: “If a person entitled to bring a personal action is prevented from so doing by the fraudulent concealment of the cause of such action by the person against whom it lies, the period prior to the discovery of such cause of action shall be excluded in determining the time limited for the commencement thereof.” This statute was enacted in 1917, (No. 78, Acts of 1917), and is now for the first time before the Court for construction.
It will be well at the outset to note the state of the law on the subject in this jurisdiction prior to the passage of the statute. It was early held that the statute of limitations does not run in chancery against an equity, the grounds of which have been kept out of sight by the fraud of the party pleading the statute. Payne v. Hathaway, 3 Vt. 212. In Smith v. Bishop, 9 Vt. 110, 31 A. D. 607, the question arose as to whether the statute of limitations was a bar to an action at law for deceit committed more than six years before the action was brought, where the fraud was not discovered until within the period of limitation. The case was heard on demurrer to a replication which sought to avoid the statute on the ground that the fraud charged in the declaration was not discovered until a time less than six years before the bringing of the action. In a well-reasoned opinion by
Apparently not until Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411, was the Court again called upon to consider the effect of concealment of the fraud charged upon the running of the statute. That was an action on the case for deceit. The defendant, a married man, deserted his wife in this State and went to Massachusetts, where he met the plaintiff. He represented that he was single and deceived her into a void marriage. The plaintiff lived with the defendant as his wife for more than thirty years, bore him children, and assisted in the, accumulation of a large amount of property. Subsequent to his marriage to the plaintiff, the lawful wife secured a divorce in Vermont, but the plaintiff was ignorant of her . marriage status until shortly before the suit was brought. The defendant relied upon the statute of limitations, and the question was when the cause of action accrued, and, if the cause of action was complete at the time of the marriage, -what effect the concealment of the fraud had upon the rights of the plaintiff in respect to the statute of limitations. A majority of the Court held that the defendant’s representations were continuous — that it was a continuing fraud —and that the cause of action did not accrue in the circumstances until the fraud was discovered. Referring to plaintiff’s claim that “active concealment of the fraud subsequent to the marriage ’ ’ was an answer to the plea of the statute, the majority say that, while they think the claim is tenable, in view of their holding there was no occasion to consider the effect of the concealment of the fraud to defeat the running of the statute, nor the want of a replication to the plea. In the dissenting opinion by Rowell, J., in which Munson, J., concurred, the point is made that the question argued was not whether the statute began to run from the discovery of the fraud out of which the cause of action grew, but whether the subsequent concealment of the fraud was an answer to the statute. However, the dissent was from the holding in effect that, inasmuch as the defendant’s fraudulent representations were continuous, they were indivisible in point
While some material fact must be concealed by positive or affirmative act as distinguished from mere silence, it is immaterial whether the concealment precedes, is concurrent with, or subsequent to, the beginning of the cause of action. Hall v. Penn. R. Co., 257 Pa. 54, 100 Atl. 1035, L. R. A. 1917F, 414. Indeed, the fraud by which the concealment is accomplished need not be other than that which constitutes the cause of action, if it actually has such effect. Way v. Cutting, 20 N. H. 187; Quimby v. Blackey, 63 N. H. 77; Kelley v. Nealley, 76 Me. 71; P. H. Sheehy Co. v. Eastern Imp. & Mfg. Co., 44 App. D. C. 107, L. R. A. 1916F, 810; U. S. v. Wolley, 262 Fed. 518. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action and whether the act operated as a means of concealment. Hall v. Penn. R. Co., supra; Whitesell v. Streakier, 167 Ind. 602, 78 N. E. 845, 119 A. S. R. 524; 17 R. C. L. 863. It is said in 17 R. C. L. 857, that the general trend of the decisions is in support of the rule that, where a party against whom a cause of action has accrued in favor of another by actual fraudulent concealment prevents such other from obtaining knowledge thereof, or the fraud is of such a character as to conceal itself, the statute of limitations will begin to run from the time the right of action is discovered, or by the exercise of ordinary diligence might have been discovered.
As already intimated, there is a well-recognized exception to the general rule that the fraudulent concealment of a cause of action which will postpone the running of the statute of limitations must consist of some affirmative act. Concealment of facts by one whose duty it is to disclose them is deemed to he fraudulent. Alter v. Smith, 245 Ill. 57, 91 N. E. 776, 19 Ann. Cas. 105. Thus it has been held to constitute fraudulent concealment sufficient to toll the statute where a relation of trust and confidence exists between the parties, making it the duty of the defendant to disclose the true state of the case to the plaintiff (Wilson v. Ivy, 32 Miss. 233), or where a cause of action is fraudulently concealed by one acting in a confidential business relation (Tompkins v. Hollister, 60 Mich. 470, 27 N. W. 651), or, in short, in any case where it is the duty of the defendant to make known a breach of trust or confidence. Am. Nat. Bk. v. Fidelity, etc., CVo., supra. See also Atlantic Bank v. Harris, 118 Mass. 147; Old Dominion, etc., Co. v. Bigelow, 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314.
In the discussion of this exception the plaintiff insists that the defendant cannot rely upon the Statute of limitations, as it was not properly pleaded, but, as in case of a similar point made by the defendant, the objection is out of time. The parties were
Judgment reversed, and judgment for the plaintiff for $375.91, with interest from JaniLary 10, 1910, and costs of suit. Let the result be certified to the probate court.