Havird v. Lung

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMACLANE, District Judge.
Citation19 Idaho 790,115 P. 930
PartiesCARY C. HAVIRD, Respondent, v. LOUIS LUNG, Appellant
Decision Date13 May 1911

115 P. 930

19 Idaho 790

CARY C. HAVIRD, Respondent,
v.

LOUIS LUNG, Appellant

Supreme Court of Idaho

May 13, 1911


ESTRAYS - TITLE PASSED BY SALE - LIMITATIONS - CONVERSION OF CHATTEL-ACCRUAL OF CAUSE OF ACTION-DEMAND-NONDISCOVERY.

(Syllabus by the court.)

1. By compliance with the estray law of 1905, now found in substance in sec. 1299 of the Rev. Codes, the purchaser of an animal [19 Idaho 791] regularly sold as an estray acquires an absolute title, regardless of lapse of time.

2. Noncompliance with such law makes the possession by the person who takes up an estray wrongful, renders him liable to the owner as for conversion, and leaves him without protection for any expenses which he may have incurred in the care of the animal while in his possession.

3. Under sec. 4054, Rev. Codes, subd. 3, which requires an action for taking, detaining or injuring any goods or chattels, or for the specific recovery of personal property, to be brought within three years, a right of action accrues in favor of the owner of goods as soon as they are wrongfully taken from his possession, or wrongfully converted by one who rightfully came into possession of them.

4. Where the possession of property is acquired by tort, no demand need be made previous to the institution of suit for its recovery, and consequently the statute of limitations is set in motion without such demand.

5. Nondiscovery of the location of a chattel is not a material element in the computation of the period of limitation allowed to commence an action to recover such chattel.

6. The provisions of sec. 4054, Rev. Codes, subd. 4, that the cause of action for fraud or mistake is not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake, applies only to actions for fraud or mistake within the common acceptance of those terms, and has no application to the action for taking, detaining or injuring goods or chattels, the period for commencing which is prescribed by the third subdivision of the section.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action for claim and delivery. Judgment for plaintiff and defendant appeals. Reversed.

Judgment reversed, with directions. Costs awarded to the appellant.

Cavanah & Blake and Chas. F. Koelsch, for Appellant.

"If the original possession of property is acquired by a tort, no demand previous to the institution of a suit is necessary." (Sargent v. Sturm, 23 Cal. 359, 83 Am. Dec. 118; Coombs v. Collins, 6 Idaho 536, 57 P. 310.)

"It is only when one obtains possession of property lawfully that demand is necessary to support replevin or trover." (Velsian v. Lewis, 15 Ore. 539, 3 Am. St. 185, 16 P. 631.)

It is a wrongful taking that gives a right of action, and it is a wrongful holding for the required length of time, if openly and exclusively, that sets and keeps the statute in operation and results in transferring title from the true owner to the tortious holder. (Harpending v. Meyer, 55 Cal. 555.)

"When misconduct or negligence constitutes a cause of action, the statute of limitations begins to run from the time when the defendant had been guilty of such misconduct or negligence." (Lattin v. Gillette, 95 Cal. 317, 29 Am. St. 115, 30 P. 545; Wood v. Currey, 57 Cal. 209; Piller v. P. R. Co., 52 Cal. 42.)

"Mere ignorance of the existence of the facts constituting a cause of action does not prevent the running of the statute." (Davis v. Boyett, 120 Ga. 649, 102 Am. St. 118, 48 S.E. 185, 66 L. R. A. 258, 1 Ann. Cas. 386; Lambert v. McKenzie, 135 Cal. 100, 67 P. 6; Lightfoot v. Davis, 132 A.D. 452, 116 N.Y.S. 904.)

R. M. McCracken, for Respondent.

"It has always been the rule in equity that the defendant's fraudulent concealment of a cause of action will postpone the running of the statute until such time as the plaintiff discovers the fraud." (19 Cyc., 2d ed., 243.)

"But this will not absolve him from all effort or diligence to obtain such knowledge, and the facts of which he might have obtained knowledge, had he sought it from its natural sources of information which were at his command, will be deemed within his knowledge." (Taylor v. S. & N. Ala. R. R. Co., 13 F. 152, 4 Woods, 575; Farrar...

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15 practice notes
  • Hansbrough v. D.W. Standrod & Co., 5147
    • United States
    • United States State Supreme Court of Idaho
    • April 5, 1930
    ...prior to the commencement of this action, subd. 3, sec. 6611, Idaho Comp. Stats. 1919, operates as a bar to the action. (Havird v. Lung, 19 Idaho 790, 115 P. 930; 24 Cal. Jur. 1036; Harpending v. Meyer, 55 Cal. 555; Dee v. Hyland, 3 Utah 308, 3 P. 388; Leavitt v. Shook, 47 Ore. 239, 83 P. 3......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...property, are barred by the statute of limitations unless commenced within three years. (C. S., sec. 6611, subd. 3; Havird v. Lung, 19 Idaho 790, 115 P. 930; 16 Cal. Jur. 446, 447.) In an action for conversation, when the original taking is alleged to be wrongful, the statute begins to run ......
  • Canyon County ex rel. Griffiths v. Moore
    • United States
    • Idaho Supreme Court
    • December 30, 1921
    ...the cause, not the form of action, and the effect of the statute cannot be evaded by any change of the form of action. (Havird v. Lung, 19 Idaho 790, 115 P. 930; Brown v. Cloud County Bank, 2 Kan. App. 352, 42 P. 593; Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 68 Kan. 585, 1 Ann. C......
  • Rogers v. Crockett
    • United States
    • United States State Supreme Court of Idaho
    • August 3, 1925
    ...on Limitations, 4th ed., secs. 276b (1), 276b (2); Trotter v. Erwin, 27 Miss. 772; Litteljohn v. Gordon, 32 Miss. 235; Havird v. Lung, 19 Idaho 790, 115 P. 930.) TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur. Budge, J., dissents. OPINION [41 Idaho 340] TAYLOR, J. ......
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15 cases
  • Hansbrough v. D.W. Standrod & Co., 5147
    • United States
    • United States State Supreme Court of Idaho
    • April 5, 1930
    ...prior to the commencement of this action, subd. 3, sec. 6611, Idaho Comp. Stats. 1919, operates as a bar to the action. (Havird v. Lung, 19 Idaho 790, 115 P. 930; 24 Cal. Jur. 1036; Harpending v. Meyer, 55 Cal. 555; Dee v. Hyland, 3 Utah 308, 3 P. 388; Leavitt v. Shook, 47 Ore. 239, 83 P. 3......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...property, are barred by the statute of limitations unless commenced within three years. (C. S., sec. 6611, subd. 3; Havird v. Lung, 19 Idaho 790, 115 P. 930; 16 Cal. Jur. 446, 447.) In an action for conversation, when the original taking is alleged to be wrongful, the statute begins to run ......
  • Canyon County ex rel. Griffiths v. Moore
    • United States
    • Idaho Supreme Court
    • December 30, 1921
    ...the cause, not the form of action, and the effect of the statute cannot be evaded by any change of the form of action. (Havird v. Lung, 19 Idaho 790, 115 P. 930; Brown v. Cloud County Bank, 2 Kan. App. 352, 42 P. 593; Atchison, T. & S. F. Ry. Co. v. Atchison Grain Co., 68 Kan. 585, 1 Ann. C......
  • Rogers v. Crockett
    • United States
    • United States State Supreme Court of Idaho
    • August 3, 1925
    ...on Limitations, 4th ed., secs. 276b (1), 276b (2); Trotter v. Erwin, 27 Miss. 772; Litteljohn v. Gordon, 32 Miss. 235; Havird v. Lung, 19 Idaho 790, 115 P. 930.) TAYLOR, J. William A. Lee, C. J., and Wm. E. Lee and Givens, JJ., concur. Budge, J., dissents. OPINION [41 Idaho 340] TAYLOR, J. ......
  • Request a trial to view additional results

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