Monmouth College v. Dockery , 241 Mo. 522 ( 1912 )

When this case was first argued in the Division, my impression was that an affirmance should be decreed here. I yielded, however, to the masterly opinion of our brother VALLIANT and concurred in the divisional opinion. Upon the reargument of the case I am convinced that the judgment nisi should be affirmed, at least upon the question of the Statute of Limitations, and that my first impression was right.

This is an action at law, and were it not for the peculiar wording of our Statute of Limitations, the statute would begin to run from the consummation of the fraud and not from the discovery of the fraud. Without statutory provisions to the contrary, we have two rules for the application of the Statutes of Limitations to causes of action, (1) the rule in equity, which fixes the date of the accrual of the action at the date the fraud is discovered, and (2) the rule in law cases which fixes the date of the accrual of the action at the date the fraud is consummated. By statutes, many of the States have engrafted the rule in equity as to law cases, and in such States there is no difference. Missouri chances to be one of the States which has thus adopted the equitable rule in cases at law. The fifth clause of our five-year Statute of Limitations as to personal actions reads:

"Fifth, an action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud."

It will, therefore, be seen that by statute we have made the old equitable rule applicable to law cases as well as equity cases.

But to the point in this case. When by statute we adopted that rule we adopted it with the exceptions which years of judicial experience had grafted upon it. That exception is well couched in 25 Cyc. p. 1186, thus: "There is, however, a well established qualification to the equitable rule that the statute runs only from the discovery of the fraud. Knowledge by the defrauded party of facts which in the exercise of proper prudence and diligence would enable him to learn of the fraud, is usually deemed equivalent to discovery; and therefore not only in equity but generally in those jurisdictions where the equitable rule has been made applicable to actions at law, the statute runs from the time when by the use of reasonable diligence the fraud could have been discovered. In other words `constructive notice of the fraud may constitute a discovery.'" This court, in the recent case of Callan v. Callan, 175 Mo. 346, after setting out and discussing the statute which we have set out above, has applied the exception so well stated in 25 Cyc. supra. In so doing we quoted from the former case of Shelby County v. Bragg, 135 Mo. 1. c. 300. In the Callan case, we used this language:

"A party seeking to avoid the bar of the statute on account of fraud must aver and show that he used due diligence to detect it, and if he had the means of discovery in his power, he will be held to have known it. A party cannot avail himself of this exception to the statute when the means of discovering the truth were within his power and were not used. Concealment by mere silence is not enough. There must be some trick or contrivance intended to exclude suspicion and prevent inquiry. There must be reasonable diligence; and the means of knowledge are the same thing in effect as knowledge itself.

"If the aggrieved party knew of the fraud when it was committed, or had full possession of the means of detecting it, which is the same as knowledge, neglect to bring forward his complaint for more than six [five] years will deprive him of his remedy and ought to, upon the very principles and reasons upon which the Statute of Limitations was enacted. . . ."

After making the above quotation from the Bragg case, and Farnan v. Brooks, 9 Pick. 246, in the Callan case, supra, this court added this language:

"Indeed, the authorities are all one way upon this question. [Wood on Limitations, sec. 276; McKneeley v. Terry, 61 Ark. 527; Busw. Lim., sec. 385; Underhill v. Ins. Co., 67 Ala. 45; Ramsey v. Quillen, 5 Lea (Term.), 184; Adams v. Inhabitants of Ipswich, 116 Mass. 570; Tyler v. Angevine, 15 Blatchf. (U. S.) 536; Eiffert v. Craps, 58 Fed. 470.]

"And `the bill or complaint-should set forth the nature of the transaction fully, and also the acts of concealment, and the time of its discovery. . . . The concealment contemplated by the statute is something more than mere silence; it must be of an affirmative character and must be alleged and proved so as to bring the case clearly within the meaning of the statute.' [Wood on Limitations (3 Ed.), sec. 276.] The same rule is announced in Ware v. Galveston, 146 U.S. 116; Felix v. Patrick, 145 U.S. 317; Hardt v. Heidweyer, 152 U.S. 559.

"While the petition alleges that the fraud complained of was not discovered by plaintiff until September, 1898, it does not allege what the discovery was, nor does the proof show that it was by reason of anything that defendant said or did that it was not discovered earlier."

Applying these rules to the case at bar, how stands the case upon the Statute of Limitations? There is no question that there was a well established method of doing business between plaintiff and the firm of Dockery Hilbert. That method required the furnishing of an abstract of title with an attorney's certificate of title. The attorneys to give the certificate of title were Campbell Ellison. A deed of trust was to be recorded and forwarded. In this case the money was paid, but no deed of trust, abstract of title or certificate of title from Campbell Ellison were ever forwarded. The failure to forward the deed of trust within a reasonable time was sufficient within itself to have placed plaintiff upon inquiry. Not only do we have the plaintiff failing to get the deed of trust, but there is no abstract of title or certificate of the attorneys ever sent to it.

Such failure was sufficient to put any prudent person upon his inquiry. The means of discovering the fraud were at hand had plaintiff been exercising diligence. In such case, "Knowledge by the defraudedparty of facts which in the exercise of proper prudence and diligencewould enable him to learn of the fraud, is usually deemed equivalent todiscovery."

This plaintiff had knowledge of such facts. It had parted with a big sum of money. It was the custom and rule of conduct for it to receive within a very short time after paying its money a deed of trust, an abstract of title, and an attorney's certificate of title. It received neither. Any prudent person with the knowledge of the facts (and the plaintiff knew them) would have begun an inquiry. Not so in this case, however. With knowledge of facts which would place any prudent person upon inquiry it made no attempt to get at the real facts, although the examination of the records would have disclosed the whole fraud. Under the course of business the papers were usually received within a few days. A few days more would have been time for the discovery of the fraud. In law the fraud must be deemed to have been discovered shortly after the usual time elapsed for the delivery of the deed of trust and other papers to the plaintiff. It being so deemed in law, the discovery was more than five years before the institution of this suit. The trial court was right in holding that plaintiff was barred by the Statute of Limitations.

II. Nor will it do to say that the plaintiff was lulled into security by the conduct of Dockery Hilbert, through Hilbert afterward. After the consummation of the fraud, nothing was done to disarm plaintiff of the suspicion until the payment of interest one year later. Under our paragraph one the fraud should have been discovered within a few weeks after the act. In law it was so discovered. If in fact the fraud had been discovered within a few weeks the payment of interest afterward would not affect the case. So, too, if the law deems that the fraud was discovered within a few weeks after the perpetration thereof, the payment of interest a year later cannot affect the case. Obviously so, because it would be an act done after the discovery of the fraud.

Time forbids me to go elaborately into all the authorities upon the question discussed in our paragraph one, or into other phases of this case, but I am convinced that the judgment should be affirmed for the reasons above assigned, if not for other reasons. I therefore dissent from the opinion of the majority.

DISSENTING OPINION.