Humphreys v. Mattoon

Rothrook, J. The demurrer is based on a number of causes, among which is the statute of limitations. As in our opinion this one cause is decisive of the case, we will briefly consider it, omitting any allusion to the other questions raised in argument. i statute of toucfulent1 concealment. The prayer of the petition does not ask that an account be taken for the amount due. The pleader seems to have av°ided that necessary feature of the case. The ^acts pleaded, however, show that the relief, if &11^ plaintiff is entitled, is the statement of an account of the. amount due; and when that is [558] ascertained, then for a decree subjecting this property to the payment of the debt. Viewed in this light, this is not an action grounded on fraud. That is, the right to recover the $1400 did not originate by reason of fraudulent representations. There was no concealment as to the liability of the guardian, or that there was a good cause of action against him for the amount due. The false representations consisted in concealing the manner in which the money of plaintiff was by the guardian converted to his own-use, and in concealing the fact that he had certain property not exempt from execution, and in asserting' that he was worthless and insolvent. These fraudulent representations and concealments are not the foundation of this action. There is no allegation in this petition that the fact of the conversion of plaintiff’s money was concealed. Indeed, it seems to be admitted that the money was received by the guardian, and it apjjears that he had no property for many years prior to his death. The Code, Section 2530, provides that “ In actions for relief on the ground of fraud, * * * the cause of action shall not be deemed to have accrued until the fraud * * * complained of shall have been discovered.”In District Township of Boone v. French, 40 Iowa, 601, it is held that where the party against whom a cause of - action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run. from the time the right of action was discovered, or might by the use of diligence have beeri discovered. Applying this test, it may well be asked: why did the plaintiff omit to examine the records of Muscatine county, and why did he fail to make inquiry as to what use his money had been applied by his guardian? The argument that this is'an express trust, and that therefore the statute does not run against plaintiff, in our opinion is unsound in its premises. If it may be called a trust, it arises by operation of law, and the statute of limitations applies. Harbour v. Rhinehart, 39 Iowa, 672. [559] 2_¡imard-ian and ward. [558] ■ II. The plainr-iff’s mother died in 1840, and at the time [559] of the commencement of this action he was not less than thirty-four years old. His right of action against j^s gUarclian for an account accrued thirteen years before this suit was brought. Where the guardianship ceases by the guardian’s resignation, his removal, or by reason of the ward arriving at full age, an action lies in favor of the ward. “After he becomes of age he stands in tire relation of creditor to his guardian. His cause of action is then complete; and if he fails to bring suit within the time limited by statute, thereafter the claim is barred.” Coleman v. Willie, 46 Mo., 236, and cases cited. Yiewing this case, then, either as founded on the original claim, or as based on the alleged fraud, we are of opinion that it is fully barred, and the judgment of the District Court is Affirmed.