Day, Oh. J.
[456]*456i. Amarais-, of claims: limitations, [455]*455I. The court having reserved the question of the statute of limitations for determination after [456]*456verdict, in addition to the facts already stated, with reference to the service of the several notices, found that defendant was appointed administratrix November 18, 1868, and that she published notice of her appointment in the Burlington Hawkeye, November 19; that she left the State the last of May, 1870, and did not return until August following; that during her absence no one was authorized to allow claims against the estate; that defendant and her attorney knew, both during and before the May term, of the filing of plaintiff’s petition; that at the August term, 1870, the cause was tried and verdict returned for plaintiffj which verdict, on motion of defendant, was set aside as contrary io evidence and anew trial granted; that no jury was summoned for the November term, and the cause was continued; that plaintiff is eighty-four years of age, arid his mental and physical powers are impaired by age; that he has no fixed place of residence, but visits with friends and relations; that soon after the transaction out of which this action grew he went to Colorado and was absent about two years; that the estate of S. B. Wright is still unsettled, and could not have been finally settled if this action had not been pending; and that said estate is perfectly solvent.
Upon these facts, the court found, as a conclusion of law, that if the statutory period for the filing of the claim had expired, yet the peculiar circumstances of the case entitled plaintiff to relief, and that he should have judgment upon the verdict. In this ruling lies the first alleged error insisted upon in the argument. The administratrix was appointed on the 18th of November, 1868. The original petition was filed in the circuit court sixteen months thereafter, March 18, 1870. An amendment to this petition was filed August 22, 1870. On the 2d September, 1870, an amended petition, under which plaintiff now claims, was filed. The last petition was sworn to; the others were not. The ^Revision provides as follows: “ Claims [457]*457against the estate must be clearly stated, sworn to and filed. Ten days’ notice of the hearing, indorsed on a copy of the claim, must be served on one of the executors in the manner required for commencing actions in the district court.” “ All claims of the fourth of the above classes, not filed and proved within one year and a half of the giving the notice aforesaid are for ever barred, unless the claim is pending in the district' or supreme court, or unless peculiar circumstances entitle the claimant to equitable relief.” §§ 2391 and 2405. It is insisted that, inasmuch as the claim was not sworn to until the filing of the amended petition, September 2, 1870, it is barred by the statute.
The claim was properly filed in the probate court within eighteen months, though not sworn to. ■ •
The omission of this act, required by section 2391, did not render the filing void. The provision with regard to the oath being directory, it may be administered after the filing. See Goodrich v. Conrad, 24 Iowa, 254.
Again, it is insisted, that the claim asserted in the amended petition is entirely distinct and different from that made in the original petition, and that hence the claim was not filed within eighteen months.
In the original petition, plaintiff alleged that by fraudulent representations S. B. Wright induced Henry W. Bear to purchase a patent right and pay therefor $500, and that Bear had assigned his cause of action to plaintiff.
The relief ashed in the original petition was the same as that sought in the amended petition, to wit: the value of a bond alleged to have been converted by defendant. Although the relief originally asked was based upon facts differing from those alleged in the amended petition, yet the facts do not so essentially differ as tó render the claims separate and distinct.
It is further urged,- that the claim, though filed within eighteen months, was not proved within that time, and [458]*458-that hence it 'is barred by the statute of limitations, citing Noble v. Massy, 19 Iowa, 511. Section 2105 of the Revision provides that claims of the fourth class, not filed and proved within one year and a half of the giving of notice by the executor, are for ever barred, unless peculiar circumstances entitle the plaintiff to equitable relief. The facts, briefly stated, are these: On the 18th of March, 1870, sixteen months after the appointment of the administratrix of the estate of S. B. Wright, deceased, the original petition was filed in the circuit court.
On the 16th of February, notice of the pendency pf said actipn was served upon defendant, a printed blank for the district court being used, and by mistake, one of plaintiff’s attorneys omitted to erase the words “ district court,” and inserted the time for holding the next term of the district court. On the 25th of the same month, a second notice was prepared by another of plaintiff’s attorneys, in which the same mistake occurred. At the May term, 1870, of the circuit court, this mistake was discovered, and soon thereafter a correct notice was prepared, service of which was accepted by defendant’s attorneys on the 25th day of June. At the following August term the cause was tried, and a verdict returned for plaintiff, which was set aside by the court on defendant’s motion, as contrary to the evidence. At the following November term, no jury was summoned, and the cause was continued. The final trial occurred at the February term, 1871. The claim was filed at such time as furnished reasonable ground for believing that it might be proved at the May term of the circuit court, and before the expiration of the time limited in the statute. A mistake in the notice rendered a continuance to the August term necessary.
For the setting aside of the verdict at that term, and the absence of a jury at the succeeding term, the plaintiff cannot be held responsible. At the next term the cause was tried. The estate was unsettled at the time of trial [459]*459and solvent. ■ We think, in view of all the facts, that the court did not err in holding that the claim was not barred.
s. practice : 6prejudice.u II. It is insisted that the court erred in striking out defendant’s set-off. Whatever may be said of the abstract correctness of this order, it is quite evident that, under the theory of the case as adopted by both parties at the trial, the ruling worked the defendant no prejudice. This set-offj which was a claim held by defendant against Fear, could be interposed against plaintiff only upon the theory that the plaintiff was seeking to recover as the assignee of Fear, and was subrogated to his rights. But this theory was directly repudiated by the defendant at the trial, at whose instance the court instructed the jury that “ plaintiff cannot recover by virtue of an assignment from H. W. Fear, for he does not claim to do so, but seeks to recover by virtue of the original transaction in depositing the bond.” Under this instruction the jury must have found that the plaintiff’s right to recover existed outside of any assignment from Fear, and did not depend upon it. Hence, if the set-off had not been stricken out, it is apparent that the facts proved justified no recovery thereunder.
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Day, Oh. J.
[456]*456i. Amarais-, of claims: limitations, [455]*455I. The court having reserved the question of the statute of limitations for determination after [456]*456verdict, in addition to the facts already stated, with reference to the service of the several notices, found that defendant was appointed administratrix November 18, 1868, and that she published notice of her appointment in the Burlington Hawkeye, November 19; that she left the State the last of May, 1870, and did not return until August following; that during her absence no one was authorized to allow claims against the estate; that defendant and her attorney knew, both during and before the May term, of the filing of plaintiff’s petition; that at the August term, 1870, the cause was tried and verdict returned for plaintiffj which verdict, on motion of defendant, was set aside as contrary io evidence and anew trial granted; that no jury was summoned for the November term, and the cause was continued; that plaintiff is eighty-four years of age, arid his mental and physical powers are impaired by age; that he has no fixed place of residence, but visits with friends and relations; that soon after the transaction out of which this action grew he went to Colorado and was absent about two years; that the estate of S. B. Wright is still unsettled, and could not have been finally settled if this action had not been pending; and that said estate is perfectly solvent.
Upon these facts, the court found, as a conclusion of law, that if the statutory period for the filing of the claim had expired, yet the peculiar circumstances of the case entitled plaintiff to relief, and that he should have judgment upon the verdict. In this ruling lies the first alleged error insisted upon in the argument. The administratrix was appointed on the 18th of November, 1868. The original petition was filed in the circuit court sixteen months thereafter, March 18, 1870. An amendment to this petition was filed August 22, 1870. On the 2d September, 1870, an amended petition, under which plaintiff now claims, was filed. The last petition was sworn to; the others were not. The ^Revision provides as follows: “ Claims [457]*457against the estate must be clearly stated, sworn to and filed. Ten days’ notice of the hearing, indorsed on a copy of the claim, must be served on one of the executors in the manner required for commencing actions in the district court.” “ All claims of the fourth of the above classes, not filed and proved within one year and a half of the giving the notice aforesaid are for ever barred, unless the claim is pending in the district' or supreme court, or unless peculiar circumstances entitle the claimant to equitable relief.” §§ 2391 and 2405. It is insisted that, inasmuch as the claim was not sworn to until the filing of the amended petition, September 2, 1870, it is barred by the statute.
The claim was properly filed in the probate court within eighteen months, though not sworn to. ■ •
The omission of this act, required by section 2391, did not render the filing void. The provision with regard to the oath being directory, it may be administered after the filing. See Goodrich v. Conrad, 24 Iowa, 254.
Again, it is insisted, that the claim asserted in the amended petition is entirely distinct and different from that made in the original petition, and that hence the claim was not filed within eighteen months.
In the original petition, plaintiff alleged that by fraudulent representations S. B. Wright induced Henry W. Bear to purchase a patent right and pay therefor $500, and that Bear had assigned his cause of action to plaintiff.
The relief ashed in the original petition was the same as that sought in the amended petition, to wit: the value of a bond alleged to have been converted by defendant. Although the relief originally asked was based upon facts differing from those alleged in the amended petition, yet the facts do not so essentially differ as tó render the claims separate and distinct.
It is further urged,- that the claim, though filed within eighteen months, was not proved within that time, and [458]*458-that hence it 'is barred by the statute of limitations, citing Noble v. Massy, 19 Iowa, 511. Section 2105 of the Revision provides that claims of the fourth class, not filed and proved within one year and a half of the giving of notice by the executor, are for ever barred, unless peculiar circumstances entitle the plaintiff to equitable relief. The facts, briefly stated, are these: On the 18th of March, 1870, sixteen months after the appointment of the administratrix of the estate of S. B. Wright, deceased, the original petition was filed in the circuit court.
On the 16th of February, notice of the pendency pf said actipn was served upon defendant, a printed blank for the district court being used, and by mistake, one of plaintiff’s attorneys omitted to erase the words “ district court,” and inserted the time for holding the next term of the district court. On the 25th of the same month, a second notice was prepared by another of plaintiff’s attorneys, in which the same mistake occurred. At the May term, 1870, of the circuit court, this mistake was discovered, and soon thereafter a correct notice was prepared, service of which was accepted by defendant’s attorneys on the 25th day of June. At the following August term the cause was tried, and a verdict returned for plaintiff, which was set aside by the court on defendant’s motion, as contrary to the evidence. At the following November term, no jury was summoned, and the cause was continued. The final trial occurred at the February term, 1871. The claim was filed at such time as furnished reasonable ground for believing that it might be proved at the May term of the circuit court, and before the expiration of the time limited in the statute. A mistake in the notice rendered a continuance to the August term necessary.
For the setting aside of the verdict at that term, and the absence of a jury at the succeeding term, the plaintiff cannot be held responsible. At the next term the cause was tried. The estate was unsettled at the time of trial [459]*459and solvent. ■ We think, in view of all the facts, that the court did not err in holding that the claim was not barred.
s. practice : 6prejudice.u II. It is insisted that the court erred in striking out defendant’s set-off. Whatever may be said of the abstract correctness of this order, it is quite evident that, under the theory of the case as adopted by both parties at the trial, the ruling worked the defendant no prejudice. This set-offj which was a claim held by defendant against Fear, could be interposed against plaintiff only upon the theory that the plaintiff was seeking to recover as the assignee of Fear, and was subrogated to his rights. But this theory was directly repudiated by the defendant at the trial, at whose instance the court instructed the jury that “ plaintiff cannot recover by virtue of an assignment from H. W. Fear, for he does not claim to do so, but seeks to recover by virtue of the original transaction in depositing the bond.” Under this instruction the jury must have found that the plaintiff’s right to recover existed outside of any assignment from Fear, and did not depend upon it. Hence, if the set-off had not been stricken out, it is apparent that the facts proved justified no recovery thereunder. All of the instructions asked by the plaintiff' and given, also show that he did not base his right of recovery upon any- interest acquired through assignment from Fear.
Hence, we say that the striking out of this set-off did not affect the ultimate result, and constitutes no error of which defendant can complain.
i action: persona?propí erty TTT. Defendant complains of the refusal to give certain instructions asked by him, and the giving of others asked by plaintiff. For the sake of brevity we will not set out the.se several instructions, but will’merely state the respective theories of the ease which they are designed to present and support. The position of plaintiff stated in brief is, that if a fraud was perpetrated upon Fear by which he [460]*460was induced to purchase the patent, and the plaintiff deposited the bond with defendant, not as payment of the liability incurred by Fear to Wright, but as mere security and pledge to him that Fear would pay the amount according to the terms of the agreement, the fraud would prevent the amount agreed to be paid by Fear from assuming the form of an indebtedness, and entitle plaintiff to withdraw the security, or, if the same had been converted, to recover its value. The defendant’s position is, that, notwithstanding such fraud and deposit of the bond as security, the plaintiff’s only remedy is against Fear for the value of the bond. After a careful consideration of the case, we are constrained to hold that the court below adopted the correct view. It may well be inferred that the supposed ability of Fear to pay his assumed liability out of the profits of his purchase constituted the inducement to plaintiff to deposit the bond as security for such payment. If the patent proved worthless the deposit with defendant was made under circumstances different from those that were supposed to exist. If then the defendant be allowed to retain and appropriate this deposit, he is permitted to substitute for plaintiff’s agreement one which he did not make and would not voluntarily have made. It seems to us manifestly unjust that the perpetrator of a fraud should be allowed to avail himself of the proceeds of this bond, and the plaintiff be restricted to a remedy against Fear alone, who may be utterly insolvent.
IY. It is further claimed that Fear should, upon the discovery of the fraud, have tendered back a deed for the patent-right and offered to rescind the contract, and that a failure to do this promptly defeats the plaintiff’s right of recovery. If, however, the deposit was made on account of a belief in Fear’s ability to pay the debt out of the profits of the patent, engendered by the fraudulent representations of defendant, we cannot see how the laches of Fear should compromise the plaintiff’s rights. With[461]*461out an offer to rescind, Fear, when sued for the purchase-money, could recoup the damages sustained through the fraud, and would be liable only for the real value of the patent purchased. And the deposit being made to secure the performance of Fear’s contract, defendant could retain only so much of the avails of the bond as would equal Fear’s liability to him. This view was presented by the instructions given.
6. AdministramSit: practice, Y. Lastly, it is claimed that .the judgment against Mary L. Wright in personam is erroneous. In rendering this judgment there is technical error. But to avail himself of it, appellant should have called the attention of the court below to its existence and moved its correction. Bev., § 3545; Webster v. Cedar Rapids and St. Paul Railroad Co., 27 Iowa, 315; Berryhill v. Jacobs, 19 id. 346; S. C., 20 id. 246. It does not appear but that the case of Lawton v. Buckingham, 15 Iowa, 22, arose prior tq the adoption of the Bevision. At all events, the question must be regarded as settled by the later decisions.
A motion to correct this judgment may yet be entertained by the court below.
Affirmed.