Continued.
and acceptor can not be inquired into.
2. Statute of frauds, how pleaded.
Bean v. Valle,
Laflin Co. v. Sinsheimer, 2, 167
Beard v. Converse, 2,670
13, 292
3. Ditch contract-Promise to pay the debt of another.-E. con-
tracted to build an extension to a ditch upon which a mortgage
existed. After work commenced, the holder of the mortgage insti-
tuted a foreclosure suit, whereupon E. refused to complete the exten-
sion. The holder of the mortgage then orally promised E. that he
should be paid out of the receipts for the sale of water by the receiver,
E. having originally agreed to be paid out of the proceeds of sales.
Under this promise, E. completed the work: Held, that the contract
was within the statute of frauds, as a promise to pay the debt of
another. Ellison v. Jackson Water Co.,
4, 559
4. It is essential to the validity of contract that it, or some note or
memorandum thereof, be in writing, that it express a consideration,
and be subscribed by the party to be charged; and the consideration of
the original contract did not attach to the promise made to a third
party. Id.
5. Executed license-Estoppel.-Y. and N. agreed, but not in writ-
ing, to construct a ditch for the conveyance of water with which to
irrigate their lands and to share equally in using the water. N., whose
land was above that of Y., diverted all the water of the ditch, and
thereby injured Y.'s crops. In an action on the case for diverting the
water, held, that the agreement was not within the statute of frauds,
and that it was in the nature of an executed license, which N. was
estopped to revoke. Yunker v. Nichols,
8, 61
6. Statute of frauds not invoked to favor trespasser. Ganter v.
Atkinson,
9, 13
7. The agreement was signed by the grantor, and the firm name of
the grantees was signed by one of them. Held, that if it were the
grant of an interest in land, it was a sufficient signing within the stat-
ute of frauds, the owner having signed, which bound him.
v. ('owen,
8. Idem-Grantee need not sign. Id.
9. Possessory rights are not within the statute of frauds. Table
Mountain Co. v. Stranahan,
9, 457
10. Sale by transfer of receiver's receipt.-Held, that the contract was
not within the statute of frauds and specific performance was de-
creed. Bean v. Valle,
13, 292
11. Partnership agreement-Sub-leases.-An agreement between A,
a lessee of a mine, and B, to become partners in the mine, paying the
reserved rent, sub-letting the mine at a royalty and dividing the profits:
Held, to be within the statute of frauds, and not sufficiently proved
by a receipt signed by A and given to B, for a sum as B's share of the
head rent of the mine, the sum being exactly half of that rent. Cad-
dick v. Skidmore,
13, 383
12. Assumption of the mine debts by the lessee.-Creditors under such
assumption protected against attaching creditors. Vincent v. Watson,
STATUTE OF FRAUDS. Continued.
13. The creditors of the lessor might severally maintain suit against
the lessees on their assumption to pay the claims of the former. Vin-
cent v. Watson,
14. Release of lien, good consideration for promise of assumption.—
When a creditor agrees to assume the debt due to another creditor in
consideration of such second creditor releasing his lien to the advan-
tage of the security of the first creditor, such contract is not within
the statute of frauds. Carothers v. Connolly,
13, 394
15. Void sale of sand.-Contract being signed only by plaintiff, and
being held, to be an agreement of sale of interest in land. O'Donnell
ads. Brehen,
16. Stock contract void under statute of frauds.—A contract to sell
and deliver at a future day mining stock (price $1,350) when no part of
the stock is delivered, no part of the purchase money paid, and no note
or memorandum of the sale or transaction made or signed by the par-
ties, is void under the statute of frauds. Mayer v. Child,
13, 399
17. The assignment of a contract void under the statute of frauds
does not constitute a good consideration for a promise to pay. Id.
18. Parol promise by stockholder to pay corporate debt.—Where
goods are sold and credit given to a corporation, an officer and stock-
holder can not be held personally liable for the debts thus created,
upon a promise to pay or see them paid, unless such promise be in
writing. Searight v. Payne,
19. Verbal agreement to reduce to writing.—The fact that the party
receiving a conveyance of land verbally agreed at the time, with the
person paying the consideration, that the former should, upon demand,
execute a conveyance to the latter of the premises, does not make the
trust express as distinguished from one implied by law from the act of
the parties, so as to exclude proof of it by parol under the operation of
the statute of frauds. Baylis v. Baxter,
14, 561
20. The statute of frauds does not apply to a trust which is raised
as a legal result from the facts. Id.
21. Mining claim is real estate.—A verbal sale will not pass title.
Melton v. Lambard,
14, 695
22. Verbal agreement enforced.-Plaintiff outfitted defendant to
re-locate an abandoned mine. The re-location was made in defendant's
name, with verbal agreement to transfer one-half to plaintiff in pursu-
ance of the original understanding. Held, that such contract was not
within the statute of frauds and was enforcible. Moritz v. Lavelle,
16, 226
23. A verbal contract for the purchase of land, having never been
reduced to writing, nor accompanied by payment of any part of the
purchase price, is within the statute of frauds, and confers no rights
which would prejudice the parties to an ejectment suit for the land.
Williams v. Gibson,
16, 244
1. Prescription.-To acquire title by prescription, it is necessary
that the period of enjoyment should equal the time fixed by the statute
of limitations as a bar to an entry on land, which in California is five
years. Crandall v. Woods,
Continued.
Wilson v. Henry,
2. Tax title defeated by.
3. Relief from fraud-Statute of limitations.--Actions upon the
ground of fraud must be instituted within three years after the dis-
covery of the fraudulent acts relied upon as the ground of relief, or be
forever barred. Bradbury v. Davis,
4. Deed-Non-user.-The right of mining can only be acquired by
deed and is not forfeited by non-user of less than twenty years. Mc-
Bee v. Loftis,
5. Averments necessary in bill to avoid bar of statute.-A statute
provided that an action for relief on the ground of fraud must be
brought within three years, the cause of action not being deemed to
have accrued until the discovery by the aggrieved party of the facts
constituting the fraud. Held, that upon suits for acts performed more
than three years before, the bill must aver that the facts constituting
the fraud were not discovered till within three years. Dannmeyer v.
Coleman,
6. Underground and unknown trespasses do not differ from other
trespasses, in the application of the statute of limitations. Williams
v. Pomeroy Coal Co.,
7. Consequential damages barred.-The bar to a recovery in an
action for a trespass, includes all the consequences resulting from such
trespass. Id.
8. Prescription.-The right to divert water from its natural channel
under the common law or the civil law, can be acquired by prescription
only. Arnold v. Foot,
8, 83
9. The statute of limitations does not run against the United States.
Union M. Co. v. Ferris, 8, 91; Vansickle v. Haines,
15, 201
10. Burden on defendant.--So long as a wrongful working is to be
treated as inadvertent the statute of limitations applies, and an
account will be restricted to six years prior to the going of the writ;
but the onus was, in this cause, put upon the defendant to show that
the minerals gotten by him during the interval in controversy were
gotten before the six years. Trotter v. Maclean,
11. Date of commencement of action when new parties have been
substituted.-Held, that although the plaintiffs had been added without
objection, yet they thereby acquired no rights relating back of their
admission, and the action commenced as to them when their names
were put on the record. Kille v. Ege,
12, 654
12. Presumption of grant in favor of possession. Mather v. Trinity
Church,
14, 472
13. Damages beyond statutory period.--Where the damages allow-
able during years not barred by the statute of limitations have been
assessed along with damages accruing during a period which was pro-
tected by the statute, so that the court can not segregate one from the
other, the error necessitates a reversal of judgment. Toombs v. Horn-
buckle,
13, 430
14. Statute of limitations on demand contracts.-The statute of
limitations did not begin to run until the demand was actually made.
Rhynd v. Hyndman,
STATUTE OF LIMITATIONS. Continued.
15. The statute of limitation and the rules as to presumptions from
lapse of time are founded on the same principle. McBee v. Loftis,
16. Runs after debt matures-Record of trust deed-Third parties.
-A suit to foreclose a trust deed was begun more than four years after
the date of the deed but less than four years after the maturity of the
bonds which it was given to secure. Held, that the action was not
barred by the statute, and that the record of the deed secured the mort-
gagee against a subsequent incumbrancer to the same extent as against
the mortgagor. Bassett v. Monte Christo Co.,
17. Statute of limitations against patent.-Where plaintiff claimed
title by Mexican grant confirmed by act of Congress and patent founded
thereon: Held, that evidence of adverse possession in defendants prior
to the date of plaintiff's patent was properly excluded, because the
statute of limitations only began to run at that date. Reed v. Spicer,
4,330
18. Statute of limitations when applied between tenants in common.
Union M. Co. v. Taylor, 5, 323; Huff v. McDonald,
14, 262
19. Statute of limitations in favor of deceased partner.-After the
death of one of the members of a copartnership, the statute of limita-
tions begins to run in favor of his personal representatives against a
claim to have an account of profits received by him. Weisman v. Smith,
20. Liability of stockholders.-The limitation of two years in the
Bankrupt Act, within which time the assignee must bring suit against
any person claiming an adverse interest touching any property or
rights of property transferable to, or vested in, such assignee,” applies
to a suit in equity brought by the assignee of a bankrupt corporation
to charge its shareholders on account of money due for the payment
of their shares of stock, and the statute begins to run from the date of
the assignment, and not from the date when the bankrupt court makes
the assessment. Foreman v. Bigelow,
13, 270
21. Amending complaint can not affect the statute as to land not
originally included. Atkinson v. Amador Canal Co.,
13, 428
22. Statute of limitations does not begin to run until injury occurs.
Backhouse v. Bonomi,
13, 677
23. Idem-Recent injury from old undermining. Id.
24. Facts insufficient to prevent the bar of limitation. Bickel's Ap-
peal,
14,592
25. Adverse possession of water.—Although the plaintiffs may have
had the prior right to water, yet if they or their grantors allowed the
defendant to acquire and hold for five years adverse possession of the
water which they had appropriated, or any part thereof, they, to that
extent, lost their right by force of the statute. Davis v. Gale, 4, 604
26. In favor of trustees.-Even if the directors were held to the
liabilities of a trust relationship, six years would bar an action for mis-
use of the corporate property.
Watts' Appeal,
8, 223
27. Title to personalty by limitation.-In order that the title to per-
sonalty may pass by the statute of limitations, there must be some
STATUTE OF LIMITATIONS. Continued.
act of dominion over it inconsistent with the right of the original
owner, asserted by the party claiming the benefit of the statute.
Baker v. Chase,
28. Amendment as affecting statute of limitation.The plaintiff
was allowed to amend his declaration so as to change the form of
action from assumpsit to tort. The cause of action accrued more
than six years before the amendment, but not before the bring-
ing of the suit. Held, that the cause of action remaining unchanged,
the statute of limitation was not a bar; otherwise, had the cause of
action been changed. Smith v. Bellows,
29. The statute of limitations is applicable to all corporeal heredit-
aments. Armstrong v. Caldwell,
30. The adverse possession of the mine by the owners of the surface
for the statutory period, would give title; but it must be distinct from
the possession of the surface. It is unaided by surface rights or occu-
pancy. Id.
31. The possession to give title must be actual (as distinguished from
constructive), exclusive, continued, peaceable and hostile. Id.
32. It is too late for executors to set up the statute of limitations,
who made no suggestion thereof when made parties to a bill six years
after the death of their testator, nor six years thereafter when they
filed an amended bill. Alden's Appeal,
33. Adverse possession by mining.-If, during a part of the three
years next after the recording of a tax deed, the former owner of the
land, by himself, his agents or tenants, openly occupy it for mining
purposes, the acts of mining not being merely occasional, fugitive and
desultory, but as continuous as the nature of the business and customs
of the country permit or require, this will be such an adverse posses-
sion as will interrupt the running of the statute of limitation in favor
of the tax title claimant. Stephenson v. Wilson,
13, 408
34. Affirmative aid to limitation title.—A title acquired under the
statute of limitations, may be quieted in the adverse holder upon a bill
in equity, filed for that purpose, even against the holder of the paper
title barred. 420 M. Co. v. Bullion Co.,
11, 609
35. The statute of limitations is applied with the same effect in a
court of equity as in a court of law. Bickell's Appeal, 14, 592
36. Idem-Complete adjudication in equity is possible, though the
court of equity can not directly or indirectly reach beyond the statute.
Id.
37. When allowed without special plea.-The benefits of the statute
may be secured without a special plea by defendants, when the com-
plaint is silent as to the foundation of the right sought to be enforced.
Gottschall v. Melsing,
1, 667
38. Adverse possession as a bar to ejectment.-Two years' adverse
possession being a matter of defense under the statute of limitations
in this case, should be made to appear affirmatively. Union M. Co.
v. Taylor,
5, 323
39. Foreign corporation.-A foreign mining corporation can not
plead the statute of limitations in Nevada. Robinson v. Imperial Co.,
10, 371; Union M. Co. v. Taylor,
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