save the debt. There is no evidence to show that a. writ of attachment could have bee:hobtainlld,;andeven the defend· ant, who lived near Cole, says that he was not aware of his insolvency at ;that time; and doubted it ail late as December, when the levies were made. Judgment will be entered for the plaintiffs for the amount claimed.
BARLOW 'D. ARNOLD,
(Circuit Court, D. Kentucky. March,1881.)
STATUTE OF LnnTATIONS KENTUCKY FRAUD DISCOVERY OF-
WHEN CAUSE OF ACTION ACCRUES-PLEADING-PRACTICE.
The Kentucky statute of limitations (Gen. St. art. 3, c. 71, § 6) pro· vides that " in actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake;" and, by section 2, such actions must" be commenced within five years next after the cause of action accrued." In a suit to recover money expended and lost by reason of the fraudulent representations of defendant's testator, 'held, that it will be presumed that the cause of action arose when the fraud was committed, and, to avoid such presumption, the plaintiff must allege and prove the time of the discovery of the fraud.
And where. the defendant had pleaded the statute, alleging that the cause of action accrued when the alleged fraud was committed, (which was more than five years before the suit was brought,) held, that upon failure to reply thereto the defendant is not deprived of her right to a judgment in her favor, because she had also alleged that the fraud was discovered more than five years before suit was brought, to which the plaintiff had tendered the general issue.
KENTUCKY CoDE-PRACTICE-STATUTE OF LnnTATIONs-DEMUEEEE -EQ,UITY PRACTICE.
Motion for Judgment on the Pleadings. R. W. Wooley and Muir £t Heyman, for plaintiff. Bijur £t Davie and W. H. OheeJ, for defendant.
by Messrs. Florien Giauque and J. C. Harper, of the Cincinnati bar.
D.:T. This suit is brought to recover of defendan',
as executrix, the sum of $100,000, with interest from July 29, 1872, which it is alleged was expended and lost by reason of,and upon, the fraudulent pretences and representations made by Philip Arnold to the plaintiff in reference to a. pretended discovery of a diamond field on the borders of New Mexico and Arizona. The answer of the defendant traverses the allegations of the petition, and pleads and relies upon the statute of limitations, which bars such actions after five years. One of the paragraphs of the answer alleges that the cause of action accrued when the money was paid, in July, 1872, and when the alleged fraud was perpetrated; and the other paragraph sets up and relies upon the statute of limitations, upon· the idea that the cause of action accrued when plaintiff discovered the fraud, or could with reasonable diligence have discovered it. This is alleged to have been in the month of November or December, 1872. The replication of plaintiff, in one of its paragraphs, attempts to avoid the allegation of the second paragraph in the answer by alleging the discovery of the fraud of Arnold within five years before the bringing of the snit, which was October 23, 1879. This paragraph of the replication has been held bad on demurrer, because it did not allege any facts showing or tending to show diligence in the investigation of the alleged fraud. Time was given plaintiff to amend his replication. This time has expired, and no amendment has been filed or tendered. The demurrer to the other paragraph of the replication was overruled. This paragraph (third) was perhaps intended to be a traverse of the third paragraph of the answer of the defendant, which sets up and relies upon the statute of limitations, upon the idea that the cause of action only accrued when the fraud was discovered, and that the burden of alleging and proving when the discovery was made, is upon the defendant. The defendant now moves the court for judgment upon the plea of the statute, as pleaded in the second paragraph of the answer. This motion is based upon the theory that plaintiff's cause of action is presumed to have accrued when the fraud is alleged to have been perpetrated, and the money
BARLOW V. ARNOLD.
paid in consequence of said fraud; and that, to avoid the rnri . ning of the statute from that time, the' plaintiff must allege facts tending lo show that, after using reasonable diligence, he did not discover the fraud until within five years before the institution of iJlis suit. H this be tl'tie, then defendant is entitled to a judgmeb.t on the plea of the' statute of limitations, because that plea is not traversed or ., The sixth section Of article 8, c. 71, Gen. St., title, "Limitations of Actions,"is in these words: "In actions for relieffot fraud or mistake, or damages for either, the cn,use of action shall not be deemed to have accrued until the discovery ofthe fraud or mistake; but no such action shall be brought 10 years after the time of making the contract or the perpetration of the fraud." .In a previous section (second) of same and chapter, it is enacted that "an action for relief on the ground of fraud ormistake" "shall be commenced within five years next after the cause of action accrued." . The question is, when does the 'cause of action accrue in such cases? ' It is necessary for the defet:ldant, under the Kentucky Code system, to plead the statute' of limitations, but whether it is sufficient for him to assume that the cause of action accrued upon the perpetration of the fraud, and leave to the plaintiff to avoid the running of the statute from the perpetration of the fraud by the allegation and proof of a discovery of the fraud since its perpetration, is an undecided question in this state. n may be argued that, under section 6, if the defendant relies on the 10-year limitation as therein provided, he must allege that the fraud complained of was perpetrated more than 10 years before the bringing of the suit; and that if he reliet on the five-year limitation of that section, he should allege the discovery of the alleged fraud more than five years before the institution of this suit. This argument would not be without force, but the objection to it is that there would be different times when the cause of action accrues on the same v.6,no.4-23
sw,teof facts,depending upon whether or not the limitation was five orten years. Again, it 'Would throw upon the defendant the burden of alleging and proving the time of discQveryof the fraud. The time of the plaintiff's discovery of is always -W.ithin'hia kI\Qwledge, and rarely within that of the defendant. a is required to allege and prove the time of the plaintiff's discovery of the fraud, he might be often t},te, statute of liJ;nitlttions,which is a of repolle, ,should be liberally c0l!-strued. The, earlier practice would have required the setting up in the bill of the.Ueged fraud, to Which the defendant migbthave pleaded the lapse of time, and. to that plaintiff might reply the recent discovery of the fraud. Story, Eq. PI. §§ 676, 677. The later equity practice required J?laintiff to allege the time of the discovery of the fraud, so as to avoid the lp,pse of time and the plea of the statute where it. applied. See Mitford & 356; Ca".,.; Assignee, v. Hilton, 1 Curtis, 390; Story, Eq. PI. § 754; Field v. Wilson, 6 B. Mon. 489 v. Parker, Adm'r, 7 J. J. Marsh. 455. .In equity, the burdeIl; of .alleging and. proving, if denied, the time of the discovery a fraud, is upon the plaintiff, in the suit for relief upon thp,t ground. I have heretofore,oonstr\led t4is section of the statute of limitations by the light of the previous equity rule, in the suits for relief for fraud or mistake, and it is proper that the equity practice, as to the mode of pleading, should be applied as far as it can be, having regard to the express provisions of the Code of Practice. ' The Kentucky Code, unlike that of New York and many other states, requires parties to plead to an issue, and recognizes such pleadings as replies, rejoinders, surrejoinders, etc. Section 100. It is, therefore, difficult to find any decision touching upon the point under consideration. The New York Code provides that in cases of fraud, the cause of action is "not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the
- BARLOW V.· ARNOLD;
fraud." New York Code, § 91, subsec. 6. The question under this section arose as to the burdenof·proviD:gthe tHue of discovery of the fraud. The superior court, in Baldwin v. Martin, 35 N. Y. Sup. Ct. 98, held that the burden of proving the time of the discovery, was upon the plaintiff. The previous New York statuta was that "bills for relief on the ground of fraud shall be filed within six years after the discovery of the facts constituting such fraud, and not after that time." 2 Rev. St. 399. The suvreme court, in son v. 3 Lans. 302, in construing this law, held that the burden was on plaintiff to allege and prove the time of discovery. It is true, the New York statute provided that the suit should not be brought "after that time," and the New York Code did not require a reply to the answer setting up the plea of the statute of limitations; still, the principle upon which those cases were decided sustains the view contended for by defendant's counsel. The inclination of my mind, when. this question was first presented, was that the defendant should allege apd prove the time of the discovery of the fraud by plaintiff, Barlow; but subsequent reflection and examination of the authorities has satisfied me that the burden of alleging and proving the time of the discovery of this fraud is upon plaintiff, and therefore the second paragraph of defendant's answer is a good plea of the statute of limitations; and, as it is neither traversed nor avoided by the plaintiff, the defendant is entitled to a judgment on her plea. T.he fact that the defendant has assumed the burden and alleged the time of the discovery in the third paragraph of her answer, does not deprive her of her right to a judgment on her second paragraph. It is unnecessary to consider the other motions, as defendant is entitled to a jqdgment onhel' motion, as herein indicated.
DALLES CITY V. THE MISSIONARY SOOIETY OJ/' THE CHURCH. KELLY KELLY
and others v. and another v.
(District Court, D. Oregon. December 3, 1879.)
GRAlIlT TO MISSIONS IN OREGON.
The grant to religious societies of mission stations in Oregon, contained in section 1 of the act of August 14, 1848, (9 St. 323,) is not confined to a single station to each society, but includes as many stations as were then actually pccupied by each society for missionary purposes among the Indians.
A patent issued under section 2447 of the Rev. St., upon a survey not approved by the surveyor general, is void;' and in case of a grant under section 1 of the act of August 14, 1848, the survey to be approved by the surveyor general necessarily involves the determination of the question, what is the quantity and boundary of the claim?
The grant to religious societies contained in the act aforesaid of the missionary stations occupied by them in Oregon on August 14, 1848, Dot exceeding 640 acres, is not confined to the land actually enclosed and cultivated by them, but should be construed to include the maximum quantity at each station occupied by them; that is, claimed and in any way used by them, and not in the actual occupation of anyone else. 4.
OCCUPATION OF MISSION STATION.
" Occupancy" is a word of narrower signification than possession, and means to possess by lajing hold of or being actually upon the thing possessed continuously and exclusively. Prior to August 14, 1848, the title to all lands in Oregon was in the United 8tates" and therefore no person could have constructive possession of any portion thereof, or any possession thereof, or interest therein, except actual possession or oecupancy; and when this was given up or abandoned, the relation of the party to the land was absolutely terminated. 5.
MISSION S'rATION AT TIlE DALLES.
The Missionary Society of the M. E. Church established a mission among the Indians at Wascopum, near the Grand Dalles of the Columbia, in 1838, and in September, 1847, abandoned and transferred the same to Dr. Whitman, of the Presbyterian mission at Wailatpu, and never re-occupied the same. lIeld, that the society did not receive a grant of said station under section 1 of the act of August 14,