15 Kan. 579 | Kan. | 1875
The opinion of the court was delivered by
But with respect to the first count of the petition, a much more difficult question arises. That count does not show affirmatively when the plaintiff first obtained knowledge of the fraud alleged to have been perpetrated upon him; and therefore, it does not show affirmatively, unless by presumption or implication, when the statute of limitations commenced to run against the cause of action stated in such count. The cause of action stated therein was of course complete on the very day that the alleged fraudulent transaction was finally consummated; but for the purposes of the statute of limitations the cause of action is not to be deemed to have accrued until the discovery of the fraud by the party aggrieved. That is, in such actions, although the cause of action is perfect on the very day that the fraud is consummated, yet the statute of limitations does not begin to operate upon such cause of action until the fraud is discovered. Or in other words, the want of a discovery or knowledge of the fraud constitutes one of the exceptions which take the case out of the operation of the statute. Now, whose duty is it to plead this exception? And in what pleading must it be stated? It has, always been the duty of the plaintiff, both in courts of law and in courts of equity, to plead the exceptions, where the question of the statute of limitation has been properly raised by the defendant. And it never was the duty of the defendant in such a case to negative the exceptions. (Zane v. Zane, 5 Kas. 137.) The most that has ever been required of
The judgment of the court below must therefore be affirmed.