McNeil v. Sigler

Granger, J. I. It will be observed that Lucretia Arnold became insane before the maturity of the note, and so continued to her death. The note matured January 4,1882, and, barring the question of her insanity, the cause of action would have been barred January 4,1892. The suit was commenced May 10,1893, so that more than one year elapsed after the action would have been barred, independent of any cause to arrest the operation of the statute. Her death was in June, 1891, and before the action would have been so barred. 2 The following provisions of the Code follow the general ones fixing the periods of limitations, which on a note is ten years: “Sec. 2535. The times, limited for actions herein, except those brought for penalties and forfeitures, shall, in favor of minors, as defined by this Code, and persons insane, be extended so that they shall have one year from and after the termination of such disability, within which to commence said action. “Sec. 2536. If a person entitled to a cause of action die within one year next previous to the expiration of the limitations above provided for, the limitations above mentioned shall not apply until one year after such death.” [590] The claim of appellant is that inasmuch as Lucretia Arnold became insane before the maturity of the note, and hence before the statute would otherwise have commenced to run, it did not commence until the appointment of the administrator of her estate, the argument being that, as the statute had not commenced to run before she was insane, it would not commence after she was so, and before there was some person legally authorized to sue. Support for the position is claimed because of some language in Sherman v. Stage Co., 24 Iowa, 515, and also from other cases and text writers. The authorities outside of this -state are not of material aid in the solution of the question, in yiew of our own holdings where the statute in question was inyolyed. In Sherman v. Stage Go., appellant quotes some language of the opinion, including the following: “That, before a cause of action accrues or the statute can begin to run, there must exist a cause of action and a person authorized to prosecuté it.” Its application to this case is that, Lucretia Arnold being under disability, because of- her insanity, and there being no guardian, there was no person authorized to prosecute a suit on the note. We do not think the language of the case was designed to be so applied. In the opinion, immediately following the language quoted, is an illustration of the thought of the court by referring to a cause of action accruing to the estate of a deceased person. In such a case there is no one by or for whom a suit could be brought. There is no one in whose favor a right of action exists. But that is not true of one merely under disability. There is a continued right of action in favor of such a person, and the law regulates the manner of bringing it. If a minor, it must be by a guardian or next friend. Code, section 2565. It may be noticed that there is no such express provisions as t© a person not judicially found to be insane, leaving, because of the express provision in the one case, much [591] room for inference as to the other. It is not to he doubted that the same rule applies in this respect to a minor as to an insane person, for the language is precisely the same as to the two. In Murphy v. Railway Co., 80 Iowa, 26 (45 N. W. Rep. 392), the section is construed as to a minor, and it is held that the statute of limitations commences to run during minority. This is the plain meaning of the statute. It attempts to do no more as to persons under such disability than to extend the time for completing the bar, so that, after the disability is removed, the person shall have a reasonable opportunity to act for himself. The statute continues during the entire time of disability, and for one year thereafter. 3 II. The petition contains representations as to a fraudulent concealment, evidently with a view to bring the case within the provisions of the Code as to actions for relief on the ground of fraud or mistake, where the cause of action is not deemed to have accrued until after the fraud or mistake is discovered. Section 2530. The slight reference in the argument to this branch of the case leads us to think that it is not seriously urged. A ground of the demurrer is that the petition fails to show any act of fraud on the part of defendants. It does not, to us, attempt to state a fraudulent act. The only acts of commission or omission pleaded are that they gave to Lucretia Arnold the note after she was insane, and Thereafter said nothing. The note was found with her papers long after her death, and the inference is that it would have been at any time. On these facts.or acts is based the conclusion of a fraudulent concealment. The conclusion is not supported. The showing is that diligence, after the death of Lucretia Arnold, would have disclosed the note. There is not a word to show that the heirs, claimed to be defrauded, ever attempted to discover the assets of the estate within the time necessary. Nor is [592] there a word to show that the neglect to do so was caused by the defendants. There is nothing to indicate that, when they gaye the papers to her, it was not an act they were required to do, or that they could rightfully have delivered them elsewhere; nor does it appeal that after the death the defendants had information that the heirs had not full knowledge of the condition of the estate. 4 III. Appellants seem to think that, because of the insanity or disability, there must be a year after that is removed, under the provisions of section 2535, and that, as she died, there should be added the year provided for by section 2536, thus making two years from her death in which to bring the suit. Her death ended her disabilities, within the meaning of the law, and also ended the operation of section 2535 as to her, and brought her within the provisions of section 2536. Had her disabilities been removed by recovery, she would have been entitled to the year thereafter under section 2535. Both periods of extension are not to be given. The judgment is affirmed.