KING IRON BRIDGE & MANUF'G CO. V. COUNTY OF OTOE.
805
But the gcneral'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 heen caused by the alleged nuisance. Miller v. Keokuk & D. M. Ry. Go., (Iowa,) 16 N. W. Rf'p. 567 j Powers v. Council Bluff., 45 Iowa, 652. Every continuance of a nuisance is in law a new nnisance. Ramsdale v. Foote, (Iowa,) 13 N. W. Rep. 557. See Baltimore & P. R. Co. v. Fifth Baptist Ohurch, 2 Sup. Ot. Hep. 719. And where, in an action for damages, and to. abate a nuisance, since the cause of action accrued, the statute of limitations has run. but damage has continned to be done within the time provided b.v statute, the action is not barren. Drake v. Chicago, R. 1. & P. R. 00., (Iowa,) ]9 N.·W. Hep. 215. See McConnel v. Kibbe, 29 Ill. 483; Bowyer v Oook, 4 lIlan., G. & S. 236. 22. ON OOMING INTO STATE. On removal to another state the statute of limitations commences to rUIl. on a cause of action already accrued, from time of arri val in state. Edgerton v. Wachter, (Neb.) 4 N. W. Rep. 85; Hartley v. Crawford, (Neb.) 11 N. W. Rep. 729; Harrison v. Union Nat Bank, (Neb.) 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 indorse'l "not paid for want of funds." Carpenter v. District Tp. of Union, (Iowa,) 12 N. W. Rep. 280. 'Vhere a town clerk has duly paid an order, and is entitled to credit for it at his next settlement, the statute of limitations begins to run at the date of such settlement. Dewey v. Lins, (Iowa,) 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, (Neb.) 13 N. W. Rep. 825; but it does not begin to run af(ainst a partnership until the dissolution thereof; or until a sufficient time has elapsed after a demand for an accounting and settlement. Richarns v. Grinnell, (Iowa,) 18 N. W. Rep. 668. 25. PROMISE TO PAY, ETC. "'h ere a cause of action, barred by the statute of lim itations, is revived by written admission, that removes the bar; the statute runs anew from the date of the admission. Bayliss v. Street, (Iowa,) 2 N. W. Rep. 437. From the time of the acknowledgment of a debt under circumstances that indieate a willingness or liability to pay the same, the statute of limitations begins to run. Green v. Coos Bay W"agon Road 00., 23 Fed. Rep. 67. Where a debtor to pay" as soon as able," the statute of Jimitations began to run as soon as he had pecuniary ability to pay; and the qnestion of when that ability arose is for the jury. Tebo v. Robinson, (N. Y.) 2 N. Eo 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, (Iowa,) 10 N. W. Hep. 227. But see supm, 19. 27. REAL ESTATE-AnVERBE POSSESSION. Adverse possession of real estate, to set the statute of limitations runnillg, must be open, notorious, continuous. Mauldin v. Cox, (Oal.) 7 Pae. Rep. 804. Mere entry upon land is not sufficient, without open, adverse possession, to stop the running of the statute. Donovan v. Bissell, (Mich.) 19 N. W. Rep. 146. upon wild land, diggiJlg, and hunting for a corner am] boundary lines, driving cattle on the land, and employiJlf( a man to "hreak" 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 ad"erse possession. Brown v. Rose, (Iowa,> 7 N. V{. Rep. 133. It does not commence to run in favor of an adverse possession oflands until after the issuance of the patent to such lands. R()ss v. Evans, (Cal.) 4 Pac. Rep. 443. It does not run against the owner of nnocenpied lands until some one assumes to take adverse possession j and this rule applies as well to an assignee in bankruptey, who, under the statute, (U. S. Rev. St. 5057,) mnst bring suit within two years, as to tht' original owner. Gray v. Jones, ]4 Fed. Rep. 83. An actioll to set aside an assignment or conveyance of property made to hinder 01 delay creditors should ordinarily be brougllt within the same tillle after the right accrues as an action at law to recover possession of the same property. Hickox v. Elliott, 22 Fed. Rep. 13. 28. SALARY. The statnte begins to run against an action to recover salary of a public officer from time of expiratiou of his term of oflice. Griffin v. County of Clay, (Iowa,) 19 N. W. Rep. 327. Where an employe's wages are dne at the end of each month, the statute of limitations begins to run against an action to recoverthelll at the date when they should have been paid. Butler v. Kirby, (Wis.) 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 JUl'. 264.
806
FEDERAL REPORTER.
29. TAX, ILLEGAL-1I[ANDAMUS. Statute of limitations begins to run against mandawlI tocompel the refunding of illegal tax from the time of the payment thereof. Beecherv. Clay Co., (Iowa,) 2 N. W. Rep. 1037. 30. TAX TITLE. Thestatuteof 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 advense, and continued for the statutory period. Baldwin v. Merriam, (Neb.) 20 N. W.Rep. 250. a. Agaimt Owner of Land. The statute of limitations commences to run against defense to tax deed from date of sale. Shawler v. Johnson, (Iowa,) 3 N. W. Rep. 604. See . Clark v. Thompson, 37 Iowa, 5 3 6 . ' In Wisconsin it is held that the fact that the tax deed issued is void does not prevent thernnning 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. Agai'lI8t 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 saIlle, Bailey v. Howard, (Iowa,) 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, Me· Michael v. Carlyle, (Wis.) 10 N. W. Rep. 556; for the real date of a deed is the date of delivery, Jackson v. Schoonmaker, 2 Johns. 234; or from the date of filing same for record. Griffith's Ex'r v. Carter, (Iowa,) 19 N. W. Rep. 903; Cassady v. Sapp, (Iowa,) 19 N. W. Rep. 909; Eldridge v. Knehl, 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, (Iowa,) 23 N. W. Rep. 635; which be 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, 14 Neb. 222; S. C. 15 N. W. Rep. 203; Reed v. Merriam, 18 N. W. Rep. 137; Zahradnicek v. Selby, 19 N. W. Rep. 645; Sturges v. Crowninshield, 4 Wheat. 122; and the statute of iimitations does not begin to ruu against the right to enforce such lien until the tax deed fails, Schoenheit v. Nelson. (Neb.) 20N. W. Rep. 205; BIj·antv. Estabrook, (Neb.) Id. 245; Otoe Co. v. Brown, (Neb.) Id. 274. 3t. 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 ex· press trust. Preston v. Walsh, 10 Fed. Rep. 315; Etting v. Marx'8 Ex'r, 4 Fed. Rep. 673. This rule applies only to pure or direct 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 eq uity will enforce against the ce.stui que trmt its own peculiar maxim, fJigilantibm etnon dormieutibusjura BubBervi1lnt. ld. Hence, when the title to realty is in one person, and the real interest is in an· other, the statute of limitations will not run as between the parties until there is a renunciation of the trust, or until the party holdinp; the legal title by some act or declaration asserts a claim adverse to the interests of the real owner. Reihl v. Likowski, (Kan.) 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.. Misappropriation, etc. Wherea person misappropriates trust funds, the statute commences to run from the actual misappropriation, or at furthest from the discovery of the fact by tbe use of reasonable diligence by the party entitled to its benefit. Pier· 80n v. McCurdy, (N. Y.) 2 N. E. 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 stockholrlers, to recover against the directons of a corporation for property lost or stolen through the misconduct, negligence, carelessness, and inattentiOll of such directors, is in the uature of complaint in an equitable action against the directors, as trusteeB,-one of which courts of equity have jurisdiction, Brinckerhoffv. Bostwick, (N. Y.) 1 N. E. Rep. 663; Robinson v. Smith, 3 Paige, 222; Heath v. Erie Ry. Co., 8 Blatchf. 347; Brinckerhoff v. Bostwick, 88 N. Y. 52; and the statute of limitations will
UNITED STATES V. CHASE.
801'
begin to run as in other cases of breach of corporate trust. See Pierson v McCurdy. wpra. b. RlJ8ultant, Constructive, Implied TrustB. The statute of limitations will run in favor of the trustee of a resultant or cOllstructive trust from the time he disavows the obligations of the trust. German-American Seminary v. Kiefer, (l\1ich.) 4 N. W. Rep. 636; Otto v. Schlapkahl, (Iowa,) 10 N. W. Rep. 651; Strimpfler v. Roberts, 18 Pl'. St. 283; Gebhard v. Sattler, 40 Iowa, 152; Smith v. Davidson, 40 Mich. 632. Where a trust arises by implication out of the agreement of parties. and there is no conflict of claim, or adverse possession between the trustee and clJ8tui 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, (Wis.) 19 N. W. Rep. 62; Clark v. Davidson, 53 Wis. 317; S. C.lO 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, (Utah,) 3 Pac. Rep. 388; Jordan v. Jordan, 4 Greeni. 175; Thomas v. White, 3 Lltt. 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 limita.tions begins to run from the date of the payment. ShrevE'S v. Leonard, (Iowa,) 8 N. W. Rep. 749. See Gebhard v. Sattler, 40 Iowa, 153: Brown v. Brown, 44 Iowa, 349; PhOlnu Ins. Co. v. Daukwardt, 47 Iowa, 432; Higgins v. Mendenhall, 51 Iowa, 136.
UNITED STATES 'V. CHASE.
«(}ircuit (Jourt,
n. Massachusetts.
June 80, 1886.)
1.
CRIMINAL LAW-INDICTMENT-MOTION IN ARREST OF JUDGMENT-SECTION
1025, REV. ST. Under section 1025. Rev. St., a technical defect in an indictment, not tending to the prejudice of the defendant, affords no ground for a motion in arrest of judgment after a plea of guilty.
2.
POST-OFFICE-OBSOENE MATTER IN MAILS-TAKING FROM MAILS-DEPOSITING SAME. .
The clause in the act of congress of July 12, 1876. "for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same," applies only to the offense of taking an obscene publica.tion from the mails, and not to that of depositing one in them.
Chas. Almy, Jr., Asst. U. S. Atty., f01' the United States.Warren O. Kyle, for defendant. Before GRAY and COLT, JJ.
GRAY, Justice. This is an indictment on the act of July 12,1876, c. 186, (19 St. 90.) 1'he first two objections taken to it are that the Jetter alleged to have been deposited in the mail is imperfectly described; and that the allegation that the defendant knowingly deposited an obscene, lewd, and lascivious letter is defective, because, construed by the technical rules of criminal pleading, the averment is only that the defendant knowingly deposited the letter, and not that he knew its character. The first objection is supported by the