Boyd v. Boyd

27 Ind. 429

• Court: Indiana Supreme Court
• Decided: May 15, 1867
• Status: Published

Opinion

Frazer, J.

This was an action to recover damages for fraud in an exchange of lands. The answer set up the statute of limitations. The reply alleged that the defendant had concealed his liability to the action by certain false pretenses made by himself, and certain misrepresentations which he induced others to make, as to subsequent transactions, the actual truth of which would otherwise have been known to the plaintiff, and would have put him on inquiry, whereby he would have discovered the fraud; that thus deceived, he remained ignorant of the facts, &c.

The only question is, whether the reply was good, in view of section 219 of the code, which provides that if a person liable to an action shall conceal the fact from the person entitled to sue, the action may be brought at any time within the period of limitation, after the discovery. ~We agree with, the counsel for the appellee, that the concealment contemplated by the statute must be something more than mere silence; that it must be an arrangement or contrivance to prevent subsequent discovery, and must be of an affirmative character. But it does not occur to us that it needs to be concocted after the accruing of the cause of action, provided it operates afterwards as a means of concealment, and was so intended. In other language, the defendant must not, at any time, do anything to prevent the plaintiff from ascertaining, subsequently to the transaction out of which the right of action arises, the facts upon which that right depends, either by affirmatively hiding the truth, enhancing the natural difficulty of discovering it, or by any device avoiding inquiry which would .result in discovery; and if he do thereby escape suit for a time, the statute of limitations will not run during, that time. Jones v. The State, 14 Ind. 120.

G. Holland and N. H. Johnson, for appellant. W. A. Peele, J. B. Julian and J. F. Julian, for appellee.

The judgment is reversed, with costs, and the cause remanded, with directions to overrule the demurrer to the reply to the second paragraph of the answer.