The Pacific Reporter, Volume 8
(21) Nuisance. It has been held that the statute of limitations commences to run against an action for erecting and maintaining a nuisance by a gas company at the time of erection of the gas-works. Baldwin v. Oskaloosa Gas-light Co., 10 N. W. Rep. 317. But the general doctrine is that in an action for damages and abatement of a nuisance the statute of limitations will not be considered to have begun to run until some injury has been caused by the alleged nuisance. Miller v. Keokuk & D. V. Ry. Co., 16 S.W. Rep. 567; Powers v. Council Bluffs, 45 Iowa, 652. Every continuance of a nuisance is in law a new nuisance. Ramsdale v. Foute, 13 N. W. Rep. 557. See Baltimore & P. R. Co. v. Fifth Baptist Church, 2 Sup. Ct. Rep. 719. And where, in an action for damages, and to abate a nuisance, since the cause of action accruel, the statute of limitations has run, but damage has continued to be done within the time provided by statute, the action is not barred. Drake y. Chicago, R. I. & P. R. Co., 19 V. W. Rep. 215. See McConnel v. Kibbe, 29 Ill. 483; Bowyer v. Cook, 4 Man., Gr. & S. 236. (22) On Coming into State. On removal to another state the statute of limitations com
. mences to run, on a cause of action already accrued, froin time of arrival in state. EJgerton v. Wachter, 4 N. W. Rep. 85; Hartley v.Crawford, 11 N. W. Rep. 729; Harrison v. Union Nat. Bank, Id. 752.
(23) Order or Warrant on County Treasury. The statute of limitations begins to run against a county warrant when it is presented to the proper authority, and indorsed "not paid for want of funds." Carpenter v. District Tp. of Union, 12 X. W. Rep. 280. Where a town clerk has duly paid an order, and is entitled to credit for it at his next settlement, the statute of linitations begins to run at the date of such settlement. Dewey v. Lins, 10 N. W. Rep. 660. See Prescott v. Gonser, 34 Iowa, 175.
(24) Partnership-- Accounting. In case of partnership each partner is entitled to an accounting upon dissolution, and statute will run from that date, Near v. Lowe, 13 N. W. Rep. 825; but it does not begin to run against a partnership until the dissolution thereof, or until a sufficient time has elapsed after a demand for an accounting and settlement. Richards v. Grinnell, 18 N. W. Rep. 668.
(25) Promise to Pay, etc. Where a cause of action, barred by the statute of limitations, is revived by written admission, that removes the bar; the statute runs anew from the date of the admission. Bayliss v. Street, 2 N. W. Rep. 437. From the time of the acknowledgment of a debt under circumstances that indicate a willingness or liability to pay the same, the statute of limitations begins to run. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67. Where a debtor promised to pay" as soon as able," the statute of limitations began to run as soon as he had pecuniary ability to pay; and the question of when that ability arose is for the jury. Tebo v. Robinson, 2 N. E. Rep. 383.
(26) Rape. The statute of limitations commences to run against action for rape at time of its commission. Van Der Haas v. Van Domselar, 10 N. W. Rep. 227. But see supra, (19.)
(27) Real Estate- Adrerse Possession. Adverse possession of real estate, to set the statute of limitations running, must be open, notorious, continuous. Mauldin v. Cox, 7 Pac. Rep. 804. Mere entry upon land is not sufficient, without open, adverse possession, to stop the running of the statute. Donovan v. Bissell, 19 N. W. Rep. 146. Going upon wild land, digging, and hunting for a corner and boundary lines, driving cattle on the land, and employing a man to break" in the following spring, are not such going into possession as will set the statute of limitations in operation so as to carry a title by virtue of adverse possession. Brown v. Rose, 7 N. W. Rep. 133. It does not conimence to run in favor of an adverse possession of lands until after the issuance of the patent to such lands. Ross v. Evans, 4 Pac. Rep. 443. It does not run against the owner of unoccupied lands until some one assumes to take adverse possession; and this rule applies as well to an assignee in bankruptcy, who, under the statute, (U. S. Rev. St. 8 5057,) must bring suit within two years, as to the original owner. Gray v. Jones, 14 Fed. Rep. 83. An action to set aside an assignment or conveyance of property made to hinder or delay creditors should ordinarily be brought within the same time after the right accrues as an action at law to recover possession of the same property. Hickoxy. Elliott, 22 Fed. Rep. 13.
(28) Salary. The statute begins to run against an action to recover salary of a public officer from time of expiration of his term of office. Griffin v. County of Clay, 19 N. W. Rep. 327. Where an employe's wages are due at the end of each month, the statute of limitations begins to run against an action to recover them at the date when they should have been paid. Butler v. Kirby, 10 N. W. Rep. 373; Davis v. Gorton, 16 N. Y. 255; Rider v. Union India R. Co., 5 Bosw. 85; Turner v. Martin, 4 Rob. 661; Mims v. Sturtevant, 18 Ala. 359; Phillips v. Broadley, 11 Jur. 264.
(29) Tax, Illegal- Mandamus. Statute of limitations begins to run against manlamus to compel the refunding of illegal tax from the time of the payment thereof. Beecher v. Clay Co., 2 N. W. Rep. 1037.
(30) Tax Title. The statute of limitations does not begin to run in favor of the holder of a tax deed by merely recording the same. To avail himself of the benefits of the statute, his possession must be actual and adverse, and continued for the statutory period. Baldwin v. Merriam, 20 N. W. Rep. 250.
(a) Against Owner of Land. The statute of limitations commences to run against de fense to tax deed from date of sale. Shawler v. Johnson, 3 N. W. Rep. 604. See Clark v. Thompson, 37 Iowa, 536. In Wisconsin it is held that the fact that the tax deed issued is void' does not prevent the running of the statute in favor of the holder. Peck v. Comstock, 6 Fed. Rep. 22. See Edgerton v. Bird, 6 Wis. 527; Hill v. Kricke, 11 Wis. 442; Knox v. Cleveland, 13 Wis. 245; Lawrence v. Kenney, 32 Wis. 281; Wood v. Meyer, 36 Wis. 308; Marsh v. Supervisors, 42 Wis. 502; Philleo v. Hiles, Id. 527; Oconto Co. v. Jerrard, 46 Wis. 324; Milledge v. Coleman, 47 Wis. 184; S. C. 2 N. W. Rep. 77.
(b) Against the Holder of Tax Deed. The statute commences to run against one claiming under a tax deed from date of treasurer's deed, where received when entitled to demand the same, Bailey v. Howard, 7 N. W. Rep. 592; Barrett v. Love, 48 Iowa, 103; otherwise, from time when entitled to deed and not from date of actual execution and delivery. Hintrager v. Hennessy, 46 Iowa, 600.
The statute commences to run against deed without date from day of its delivery, McMicheal v. Carlyle, 10 N. W. Rep. 556; for the real date of a deed is the date of delivery, Jackson v. Schoonmaker, 2 Johns. 231; or from the date of filing same for record. Griffith's Ex'r v. Carter, 19 N. W. Rep. 903; Cassady v. Sapp, 19 N. W. Rep. 909; Eldridge v. Kuehl, 27 Iowa, 160. But the person purchasing at tax sale must demand and record his deed when he is entitled to do so. Hintrager v. Hennessy, 46 Iowa, 600.
(c) On Failure of Tax Title. Where tax sale is set aside, or the title acquired fails, the purchaser has a lien for taxes paid, with interest, Harber v. Sexton, 23 N. W. Rep. 635; which he may enforce by proceedings to foreclose the same, Peot v. O'Brien, 5 Neb. 360; Pettit v. Black, 8 Neb. 52; Wilhelm v. Russell, Id. 120; Miller v. Hurford, 11 Neb. 377; S. C. 9 N. W. Rep. 477; Towle v. Holt, 1+ Neb. 222: S. C. 15 N. W. Rep. 203; Reed v. Merrian, 18 N. W. Rep. 137; Zahra Inicek v. Selby, 19 N. W. Rep. 645 ; Sturges v. Crowninshield, 4 Wheat. 122; and the statute of limitations does not begin to run against the right to enforce such lien until the tax deed fails. Schoenheit v. Nelson, 20 N. W. Rep. 205; Bryant v. Estabrook, Id. 245; Otoe Co. v. Brown, Id. 274.
(31) Trusts. It is a general rule that neither lapse of time, nor the rule of analogy, nor any defense analogous to the statute of limitations can be set up by a trustee of an express trust. Preston v. Walsh, 10 Fed. Rep. 315; Etting v. Marx's Ex'r, 4 Fed. Rep. 673. This rule applies only to pure or direcc trusts. Newsom v. Board of Com'rs, (Ind.) 3 N. E. Rep. 163. Yet, when the circumstances require it, especially when the rights of third persons intervene, a court of equity will enforce against the cestui que trust its own peculiar maxim, vigilantibus et non dormientibus juri subscrviunt. Id. Hence, when the legal title to realty is in one person, and the real interest is in another, the statute of limitations will not run as between the parties until there is a renunciation of the trust, or until the party holding the legal title by some act or declaration asserts a claim adverse to the interests of the real owner. Reihl v. Likowski, 6 Pac. Rep. 886. But where there is a conflict of claim between trustee and his cestui que trust, and the party having the legal estate holds adversely, the statute of limitations will protect the one having the legal title, and who is sought to be converted into a trustee by a decree founded upon fraud, breach of trust, or some inequitable advantage obtained by him. Taylor v. Holmes, 14 Fed. Rep. 498.
(a) Disappropriation, etc. Where a person misappropriates trust funds, the statute commences to run from the actual misappropriation, or at furthest from the discovery of the fact by the use of reasonable diligence by the party entitled to its benefit. Pierson v. McCurdy, 2 V. T. Rep. 615; Same v. Same, 33 Hun, 520. It has been held that an action by a stockholder, suing in his own name for the benefit of all the stockholders, to recover against the directors of a corporation for property lost or stolen through the misconduct, negligence, carelessness, and inattention of such directors, is in the nature of complaint in an equitable action against the directors, as trustees, -one of which courts of equity have jurisdiction, Brinckerhoff v. Bostwick, 1 N. E. Rep. 663 ; Robinson v. Smith, 3 Paige, 2:22; Heath v. Erie Ry.Co., 8 Blatchf. 347; Brinckerhoff v. Bostwick, 88 N. Y. 52; and the statute of limitations will begin to run as in other cases of breach of corporate trust. See Pierson v. McCurdy, supra.
(6) Resultant, Constructive, Implied Trusts. The statute of limitations will run in favor of the trustee of a resultant or constructive trust from the time he disavows the obligations of the trust. German-American Seminary v. Kiefer, 4 N. W. Rep. 636; Otto v. Schlapkahl, 10 N. W. Rep. 651; Strimpfler v. Roberts, 18 Pa. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v. Davidson, 40 Mich. $32. Where a trust arises by implication out of the agreement of parties, and there is no conflict of claim, or adverse possėssion between the trustee and cestui que trust, statutes of limitation do not apply. Taylor v. Holmes, 14 Fed. Rep. 498.
(32) Verbal Contract to Convey. Where money has been paid on a verbal contract to convey land, the statute does not begin to run against an action to recover the same until the date of demand or refusal to convey. Tucker v. Grover, 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C. 10 N. W. Rep. 384. See Thomas v. Sowards, 25 Wis. 631 ; N. W. U. P. Co. v. Shaw, 37 Wis. 655.
(33) Wrongful Act. Where a wrongful act has been committed, in the absence of fraud the statute begins to run as soon as the wrong is committed, although the plaintiff may be ignorant that a cause of action has accrued, Dee v. Hyland, 3 Pac. Rep. 388; Jordan v. Jordan, 4 Greenl. 175; Thomas v. White, 3 Litt. 177; for the statute does not protect plaintiffs who are ignorant of the facts necessary to enable them to bring suits, unless that ignorance is occasioned by some improper conduct on the part of the defendant. Froley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92. Failure to credit a payment on a judgment is not a fraud, and the statute of limitations begins to run from the date of the payment. Shreves v. Leonard, 8 N. W. Rep. 749. See Gebhard v. Sattler, 40 Iowa, 153; Brown v. Brown, 44 Iowa, 319; Phænix Ins. Co. v. Dankwardt, 47 Iowa, 432; Higgins v. Mendenhall, 51 Iowa, 135.
2. COMPUTATION OF TIME. In the absence of any statutory provision governing the computation of time, where an act is required to be done a certain number of days or weeks before a certain other day, upon which another act is to be done, the day upon which the first act is to be done must be excluded from the computation, and the whole number of the days or weeks must intervene before the day fixed for the second act. Ward v. Walters, 22 N. W. Rep. 844; Pitt v. Shew, 4 Barn. & Ald. 208; Mitchell v.Foster, 4 Perry & D. 150; Queen v. Justices of Shropshire, 8 Adol. & E. 173; Zouch v. Empsey, 4 Barn. & Ald. 522; Hardy v. Ryle, 9 Barn. & C. 603; Judd v. Fulton, 4 How. Pr. 298; Small v. Edrick, 5 Wend. 137; Rankin v. Woodworth, 6 Pen. & W.48; Wood. Lim. 107, & 56. It is said in the case of Ganahl v. Soher, 5 Pac. Rep. 80, that the time of a minor's minority is calculated from the first minute of the day on which he is born to the first minute of the day corresponding which completes the period of minority; and, in calculating the time within which he may thereafter bring an action, as he attains majority on the first minute of a day, the whole of that day is to be calculated as the first day of the time within which he may bring the action.
3. WHAT PREVENTS THE RUNNING. The statute of limitations does not cease to run merely because the creditor is involved in litigation with third parties, upon the issue of which the individual right to the debt is dependent. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449. A cause of action for conversion which would be otherwise barred by the statute is not kept alive by every intermeddling with the property which treated by itself might give a cause of action. Kinsely v. Stein, 18 N. W. Rep. 115.
(1) Acknowledgment or New Promise. Acknowledgment or promise to pay debt, made after the debt is barred, will revive it, Rolfe v. Pillond, 19 N. W. Rep. 970; but will not revive except by an express promise, or by such an acknowledgment of the indebtedness as reasonably leads to the inference that the debtor intended to renew his promise or to waive the benefit of the statute. Denny v. Marrett, 13 N. W. Rep. 148; Whitney v. Reese, 11 Minn. 138, (Gil. 87;) Brisbin v. Farmer, 16 Minn, 215, (Gil. 187.) An acknowledgment of indebtedness will not be presumed where the accompanying circumstances are such as to leave it in doubt whether the party intended to prolong the time of legal limitation. City of Fort Scott v. Hickman, 5 Sup. Ct. Rep. 56. To take a debt out of statute the acknowledgment must be clear and unequivocal, and consistent with a promise to pay, Landis v. Roth, 1 Atl. Rep. 49; Richardson v. Brecker, 1 Pac. Rep. 433; uncertainty as to acknowledgment or indentification of the debt is fatal. Burr v. Burr, 26 Pa. St. 284. See Miller v. Baschore, 83 Pa. St. 356.
A promise to pay, after the statute of limitations has run, will not revive a tort; but a promise made before the statute has run, on consideration that no suit should be brought, will stop the running of the statute. Armstrong v. Levan, 1 Atl. Rep. 204.
(a) Promise in Writing. Where an unqualified promise, in writing, to pay is required to remove the bar of the statute of limitations, the words "I think I see my way clear to pay you the $200 and interest I owe you. * I am in hopes another two years will enable me, from my present income, to clear off all pressing debts.
* Rest assured that not a day of pecuniary freedom will pass over my head without your hearing from me,"—is not such promise. Pierce v. Seymour, 9 N. W. Rep. 71. A promise to pay "when able," "as soon as possible," "when I can," or "as soon as he could," have been held to be conditional in Colorado: Richardson v. Brecker, 1 Pac. Rep. 433; Illinois : Horner v. Starkey, 27 Ill. 13; Connecticut: Norton v. Shepard, 48 Conn. 142; Vermont: Cummings v. Gassett, 19 Vt. 310; New Hampshire: First Cong. Soc. v. Mil. ler, 15 N. H. 522.
Where a debtor wrote, "I am sorry that you have had to pay the notes of Frank Pillond and myself, upon which you were surety for us. I cannot at this time pay you the money, but propose to pay you my share, which I am told is about $413. I hope to
be able to pay you soon, but will let you know what I can do in a few days;" held to take the debt out of the statute. Rolfe v. Pillond, 19 N. W. Rep. 970. Also, "If I ever get able I will pay you every dollar I owe to you and all the rest. You can tell all as soon as I get anything to pay with I will pay. As for giving a note it is of no use; I will pay just as quick without it,"-held that this acknowledged an "existing liability, and took case out of statute. Devereaux v. Henry, 19 N. W. Rep. 697.
(2) Absence from the State and Non-Residence. Absence from the state suspends the operation of the statute as to resident or non-resident debtors. Whitcomb v. Keator, 18 N. W. Rep. 469; Hedges v. Roach, 21 N. W. Rep. 404; Satterthwaite v. Abercrombie, 24 Fed. Rep. 543; Hennequin v. Barney, Id. 580; Fowler v. Hunt, 10 Johns. 465; Milton v. Babson, 6 Allen, 3:22; Rockwood y. Whiting, 118 Mass. 337. But the absence of a mortgagor from the state does not suspend the running of the statute of limitations, as to the mortgage securing a debt. Watt v. Wright, 5 Pac. Rep. 91. It has been held that a statute providing that the time during which a defendant is a non-resident of the state shall not be included in computing the period of limitation," has no reference to non-resident corporations who come into such state on business, and can, by the laws of the state, sue and be sued there. McCabe v. Illinois Cent. R. Co., 13 Fed. Rep. 827.
(a) Temporary Absence. Where a statute provides that if, when a cause of action shall accrue against any person, he shall be out of the state, the action may be commenced within the term limited after such person shall return to or remove to the state, applies to the temporary absence of a resident of the state, although during such absence a summons might be served by leaving it at his usual place of abode. Parker v. Kelly, 21 N. W. Rep. 539. See Ruggles v. Keeler, 3 Johns. 263; Milton v. Babson, 6 Allen, 322; Brown v. Bicknell, 1 Pin. 226. And it has been held that where a person leaves a state in which he resides, under the employment of the general government, with the intention of returning as soon as his employment terminates, but retains no property or business interest in the state, he is a non-resident within the meaning of the statute, although his wife remains in the state for a portion of the time; and the statute of limitations will not run in his favor during his absence. Hedges v. Jones, 19 W. W. Rep. 675. See Penley v. Waterliouse, 1 Iowa, 498; Savage v. Scott, 45 Iowa, 133; Hackett v. Kendall, 23 Vt. 275; Sleeper v. Paige, 15 Gray, 319; Ware y. Gowen, 111 Mass. 526. (6) Removal from and Return to State. Where a cause of action has accrued prior to the
a removal of a debtor from a state into another state, and he remains in such other state a suflicient length of time to avail himself of the statute of limitations in such state, his return to the first state will not revive the cause of action, when it is provided by statute in the first state that" where a cause of action has arisen in a state or territory out of this state, or in a foreign country, and by the laws thereof an action cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in
, this state." Osgood v. Artt, 10 Fed. Rep. 365. The reason for this is, that as soon as a residence was taken up in the second state, a cause of action accrued in that state against the debtor, and as soon as the cause of action accrued the statute of limitations of that state began to run. But, in the absence of the exceptional legislation, the debtor would be required to reside continuously within the first state from the time the cause of action arose until the statute in that state had completely run. Chenot v. Lefevre, 3 Gilman, 637.
(3) Commencement of Action. The statute ceases to run in favor of a defendant who is a non-resident of the district when complainant has obtained process against him, or done all that is necessary to obtain process, and not before. Bishee v. Evans, 17 Fed. Rep. 474. And it is said that where an action has been commenced on a claim, however defective, it stops the running of the statute of limitations. Smith v. MeNeal, 3 Sup. Ct. Rep. 319. But, where the law furnishes a party with a simple method of proceeding against an ultimate debtor, he cannot prevent the running of a statute of limitations against him by attempting to collect his debts by a circuitous legal proceeding. Glenn v. Dorsheimer, 23 Fed. Rep. 695.
Where the continuity of an'action is interrupted by an interval between the returnday of one writ of summons and the issue of an alias writ, the institution of the action will not stop the running of the statute during the intervening time. Johnson v. Vead, 24 N. W. Rep. 665. And where a case is brought in state court and removed to the fecleral court, where it is dismissed without prejudice because plaintiff"believes he cannot ohtain at air trial in the federal court," another action in the state court will be barred if the original action would have been barred. Archer v. Chicago, B. & Q. R. Co., 22 N. W. Rep. 891.
A debtor who procures and keeps in force an injunction against the collection of a debt which he ought to pay, until it is barred at law by the statute of limitations, will not be allowed to avail himself of the bar in a court of equity. Union Mut. Life Ins. Co. of Maine v. Dice, 14 Fed. Rep. 523. It has been held that, under the statute of California, where the supervisors of a county all resigned to prevent the service of sum
mons in a suit against the county, it did not prevent the statute from running. Nash v. Eldorado Co., 24 Fed. Rep. 252.
(a) Defense or Counter-Claim. It is said that the statute does not run against a claim set up as a defense, and on which defendant is entitled to rely, while such suit is pending. Becker v. Wing, 21 N. W. Rep. 47.
(4) Estates of Decedents. Death of debtor suspends the running of the statute until an administrator is appointed. Nelson, Adm'r, v. Herkel, Adm'r, 2 Pac. Rep. 110; Toby V. Allen, 3 Kan. 399; Hanson v. Towle, 19 Kan. 273. "See Whitney v. State, 52 Miss. 732; Briggs v. Thomas' Estate, 32 Vt. 176; Etter v. Finn, 12 Ark. 632. A request by the executor of the estate of a deceased person for delay, to save the bar of the statute of limitations in favor of such estate, must be for a definite time agreed on by the parties, or fixed by reference to some designated event which may occur, and thereby render the period certain. Simply requesting that you do not enforce your claims," and promising that he "will not avail himself of the statute applicable to executors," etc., is insufficient. Pulliam v. Pulliam, 10 Fed. Rep. 53.
The statute of limitations does not run against a claim against the estate of a decedent from the time when presented for allowance until rejected. Nally v. McDonald, 6 Pac. Rep. 390. Filing a claim against the estate of a decedent is not proving," within the meaning of the statute of limitations. Willcox v. Jackson, 1 N. W. Rep. 536.
A joint judgment against the deceased and others, obtained during his life-time, may, upon his death, be prosecuted against his representative alone in Michigan. U. S. v. Spiel, 8 Fed. Rep. 143.
(a) Appointment of Administrator. No disability arising after a statute of limitations has begun to run will suspend its operation, McDonald v. Hovey, 4 Sup. Ct. Rep. 142; and the bar of the statute of limitations is not removed by the issuance of letters of administration on the estate of the deceased debtor. Gaines v. Hammond's Adm'r, 6 Fed. Rep. 449. And this rule is not modified by the fact that it was not known that the decedent had any estate calling for administration until after the expiration of the statutory period of limitation. Id.
(b) Devolution. Where the statute commences to run in life-time of ancestor, its operation is not arrested by his death and minority of his heirs, Darnall v. Adams, 13 B. Mon. 273; Haynes v. Jones,, 2 Head, (Tenn.) 372; Ang. Lim. $ 196; and consequently the statute of limitations in ejectment is not arrested by the devolution of the estate. De Mill v. Moffat, 13 N. W. Rep. 387. See Hill v. Smith, 1 Wils. 134; Cotterell v. Dutton, 4 Taunt. 826; Rhodes v. Smethurst, 4 Mees. & W. 42; S. C. 6 Mees. & W. 351 ; Eager v. Com., 4 Mass. 182; Peck v. Randall, 1 Johns. 165; Demarest v. Wynkoop, 3 Johns. Ch. 129; Jackson v. Wheat, 18 Johns. 40; Dillard v. Philson, 5 Strob. 213; Byrd · v. Byrd, 28 Miss. 144; Seawell v. Bunch, 6 Jones, Law, 197; Tracy v. Atherton, 36 Vt. 503; Reimer v. Stuber, 20 Pa. St. 458; Stephens v. McCormick, 5 Bush, 181; Ruff v. Bull, 7 Har. & J. 14; Pinckney v. Burrage, 31 N. J. Law, 21; Lewis v. Barksdale, 2 Brock. 436; Walden v. Gratz, 1 Wheat. 292; Mercer v. Selden, 1 How. 37; Hogan v. Kurtz, 94 U. S. 773; Becker v. Van Valkenburgh, 29 Barb. 324; Allis v. Moore, 2 Allen, 306; Currier v. Gale, 3 Allen, 328; Keil v. Healey, 84 Ill. 104; Cozzers v. Farnan, 30 Ohio St. 491.
(5) E.ctension of Time. An agreement to extend or postpone the time of payment of a claim, made without consideration, is void, and will not prevent the running of the statute of limitations. Green v. Coos Bay Wagon Road Co., 23 Fed. Rep. 67.
(6) Fraud. Fraud, or the concealment of fraud, prevents the running of the statute of limitations until it is discovered. McAlpine v. Hedges, 21 Fed. Rep. 689. Where a deed is executed for the purpose of defrauding creditors, purposely kept off of record, and all the parties considered in the transaction keeping it perfectly silent, this is such fraudulent concealment as relief may be granted for in equity. McAlpine v. Hedges, 21 Fed. Rep. 689. See Meader v. Norton, 11 Wall. 442; Carr v. Hilton, 1 Curt. C. C. 238; Vane v. Vane, L. R. 8 Ch. 383; Rolfe v. Gregory, 4 De G., J. & S. 576; Hovenden v. Annesley, 2 Schoales & L. 634; Buckner v. Calcote, 28 Miss. 568. A contrary doctrine prevails in Indiana. Boyd v. Boyd, 27 Ind. 429; Pilcher v. Flinn, 30 Ind. 202; Musselman v. Kent, 33 Ind. 458; Jackson v. Buchanan, 59 Ind. 390; Wynne v. Cornelison, 52 Ind. 319; Hughes v. First Nat. Bank of Waynesburg, (Pa.) 1 Atl. Rep. 417.
(7) Mortgage. A mortgage will not keep alive the personal obligation to pay a debt after the time when it would otherwise be outlawed. Lashbrooks v. Hatheway, 17 y. W. Rep. 723; Michigan Ins. Co. v. Brown, 11 Mich. 265; Appeal of Goodrich, 18 Mich. 110; Powell v. Smith, 30 Mich. 452.
(8) Negligence and Laches. Neglect of a person to do that which is required of him to be done to perfect his right against another will not prevent the running of the statute of limitations against him. Lower v. Miller, 23 N. W. Rep. 897; Prescott v. Gonser, 34 Iowa, 175; Baker v. Johnson Co., 33 Iowa, 151; Hintrager v. Hennessy, 46 Iowa, 600; Beecher v. Clay Co., 52 Iowa, 140; S. C. 2 N. W. Rep. 1037; First Nat. Bank of Garrettsville v. Green, 17 N. W. Rep. 86.