Hoover v. City of Albuquerque
| Decision Date | 07 May 1954 |
| Docket Number | No. 5725,5725 |
| Parties | HOOVER v. CITY OF ALBUQUERQUE. |
| Court | New Mexico Supreme Court |
F. L. Nohl, Albuquerque, for appellant.
Thomas G. Cornish, C. Vance Mauney, Albuquerque, for appellee.
The plainitff complains upon this appeal of the judgment of the trial court notwithstanding verdict that her action, seeking to recover damages for the defendant's failure to retire municipal speical assessment paving bonds in numerical order, the accepting of bonds in satisfaction of special assessments, and the use of funds belonging to the paving district in question for the payment of obligations of other districts, is barred by applicable statute of limitation.
Plaintiff's testator was the owner of certain bonds issued by the defendant December, 1927, and payable to bearer Nobember, 1938.
Section 27-122, 1941 Comp., provides:
The appellant rests her argument the above statute of limitation does not bar the present action upon the contention the relation between the defendant city and the bondholder is one of trust, and that statutes of limitation do not begin to run against such bondholder until there is a distinct repudiation of the trust by the city.
It is true such was declared to be the rule applicable in Crist v. Town of Gallup, 1947, 51 N.M. 286, 183 P.2d 156, the case so heavily relied upon by appellant, but what is said therein can have no application to the present case. The Crist case was governed by the provisions of the old statute of limitation, Laws 1880, ch. 5, which, at Sec. 17, 27-117, 1941 Comp. provided its limitations should not run against causes of action arising out of trusts where the defendant had fraudulently concealed the cause of action or its existence from the party entitled to bring action. As is pointed out in the Crist case on Motion for Rehearing, at pages 290, 293, 51 N.M., 183 P.2d 158, that action was brought just two days before the time allowed in the saving clause of Sec. 27-122 expired. The saving clause had the effect of reviving actions theretofore barred, provided they were filed on or before the date specified, December 31, 1941.
In the present case, the bonds matured in November of 1938 and were thenceforth in default. Action was not instituted until the year 1950. Regardless of whether the failure of the city to take up the bonds when due and its other actions complained of constitute or do not constitute a 'distinct repudiation' of the trust relation, there is nothing to uplift the bar of Sec. 27-122. It specifically provides a three year period of limitation after the date of the act giving rise to the cause of action arising out of or founded upon 'any ordinance, trust relation, or contract written or unwritten, or any appropriation of or conversion of any real or personal property,' and further provides as to 'all such actions heretofore accrued, suit to recover thereon may be instituted at any time on or before December 31, 1941, but not otherwise.' We are convinced the legislative intent was to exclude the necessity of repudiation or notice thereof and to bar such actions as the present one within the time limited.
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