Widner v. Wilcox

Ladd, J.— The evidence leaves no doubt but that plaintiff’s decedent, Susan ITankins, loaned Thomas Pasley, of whose estate the defendant was appointed administrator June 6, 1901, the sum of $300 not later than July, 1896. The contract was in parol. The claim therefor was not filed with the clerk of court until August 7, 1901, nor notice thereof accepted by the administrator until July, 1902. More than five years had elapsed since the making of the loan before the commencement of the action, and the plea that the claim was barred by the statute of limitations was sustained. Section 3447, Code. The running of the statute was not tolled by Pasley’s death. Grether v. Clark, 75 Iowa, 383; Murphy v. Railway, 80 Iowa, 26; Ackerman v. Hilpert, 108 Iowa, 247; see Black v. Ross, 110 Iowa, 112. But appellee contends that this defense was waived hy a failure to demur to the claim. It was for cash “ deposited with decedent ” and “ received by decedent as trustee and custodian ” for claimant. If ‘this were so, the statute of limitations would not begin to run until demand had been made or the trust was repudiated. Elliott v. Capital City State Bank, 128 Iowa, 275. So the issue presented by the amendment to the answer could not have been raised by demurrer. For all that appears defendant may not have been aware of the nature of deceased’s obligation until the evi 226 dence had been introduced. It then appeared without dispute that the money was loaned on Pasley’s promise to repay upon demand, and the filing of the amendment to the answer setting up the bar of the statute of limitations was timely. There was no ruling on the motion to strike, and it must be assumed that the court passed on the issues raised by the pleadings as they stood. As the claim should have been rejected on this ground, other points argued need not be con-, sidered.— Reversed.