Oklahoma Farm Mortg. Co. v. Jordan

• Decision Date: 20 November 1917
• Docket Number: 8168.
• Citation: Oklahoma Farm Mortg. Co. v. Jordan, 168 P. 1029, 67 Okla. 69, 1917 OK 556 (Okla. 1917)
• Parties: OKLAHOMA FARM MORTGAGE CO. v. JORDAN et al.
• Court: Oklahoma Supreme Court

168 P. 1029

67 Okla. 69, 1917 OK 556

OKLAHOMA FARM MORTGAGE CO. v. JORDAN et al.

No. 8168.

Supreme Court of Oklahoma

November 20, 1917

Syllabus by the Court.

On July 31, 1915, O. F. M. Co., a corporation, brought this action against J., B., and S., for damages, alleging that J., as notary public, on June 8, 1909, made false certificates of acknowledgment to two certain mortgages purporting to have been executed by A. and wife, to O. F. M. Co., to secure the payment of money; that B. and S. were sureties on J.'s notarial bond, dated February 13, 1908, and further alleging that the falsity of the certificates was not discovered by O F. M. Co. until August 5, 1912. Held: First, that the cause of action accrued at the time of the making of the false certificates; second, that the special statute of limitations, providing that "no suit shall be instituted against any such notary or his securities more than three years after the cause of action accrues" (section 4249 Rev. Laws Okl. 1910), controls in the case, and that on the face of the petition the cause of action is barred.

"Fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud."

"The mere failure to disclose that a cause of action exists is not sufficient to prevent the running of the statute. There must be something more; some actual artifice to prevent knowledge of the facts; some affirmative act of concealment, or some misrepresentation to exclude suspicion and prevent inquiry."

Error from District Court, Love County; W. F. Freeman, Judge.

Action by the Oklahoma Farm Mortgage Company against Jesse L. Jordan and George W. Burnett and J. W. Scanlon, as sureties on Jordan's notarial bond. Demurrer to petition sustained and plaintiff excepts and brings error. Affirmed.

M. G Meister, of Oklahoma City, for plaintiff in error.

J. C. Graham, of Marietta, and T. B. Wilkins, of Marietta, for defendants in error.

RAINEY J.

On July 31, 1915, the plaintiff in error, Oklahoma Farm Mortgage Company, brought their action in the district court of Love county, Okl., against Jesse L. Jordan, Geo. W. Burnett, and J. W. Scanlon, for damages, alleging that Jesse L. Jordan, as a notary public, on June 8, 1909, made false certificates of acknowledgment to two certain mortgages purporting to have been executed by W. A. Anglin and wife, Lucy O. Anglin, to secure the payment of money loaned by the Oklahoma Farm Mortgage Company to W. A. Anglin; that Geo. W. Burnett and J. W. Scanlon were sureties on Jesse L. Jordan's notarial bond. In its petition plaintiff further alleged that W. A. Anglin made payments upon the notes for which the mortgage was given as security at various times, until his death in 1911, and that subsequent to his death, L. A. Kirkpatrick, as administrator of his estate, also made payments upon the notes, but that later the said L. A. Kirkpatrick notified the plaintiff by letter that the signatures of Lucy O. Anglin to the mortgages were forgeries, and that Jordan's notarial certificates of acknowledgment to the mortgages were false; that the falsity of the certificates was not discovered by plaintiff until the receipt of said letter on August 5, 1912. It is also alleged in the petition that on April 12, 1913, the plaintiff filed suit in the district court of Love county, Okl., seeking to foreclose the mortgages, in which action the said Lucy O. Anglin denied the execution of the notes and mortgages sued upon, and charged that her signatures thereto were forgeries, and that the land described in the mortgages was her homestead, and that on this issue the jury found in her favor. The petition in the instant case also alleged that the said Jesse L. Jordan was engaged in the real estate and loan business at Marietta, Okl., and that at the time he made the false certificates he was acting as agent for the plaintiff in procuring loans, and that the plaintiff relied upon the certificates made by the said Jesse L. Jordan. The defendants interposed a demurrer to the petition, on the ground, among others, that it appeared from the face of the petition that if the plaintiff ever had any cause of action against the defendants, the same was barred by the statute of limitations. The trial court sustained the demurrer on this ground, to which action of the trial court plaintiff excepted, and brings the case here.

It is conceded by plaintiff in error that the statute of limitations which governs this case is section 4249, Rev. Laws Okl. 1910, which reads as follows:

" Statute of Limitations. No suit shall be instituted against any such notary or his securities more than three years after the cause of action accrues."

The sole question presented to this court for decision is: When did the cause of action accrue? Plaintiff in error contends that it accrued when it first discovered that the notary's certificates were false, and that the action was commenced in time, while the defendant in error contends that the cause of action, if any, accrued at the time of the making of the false certificates. If the plaintiff in error is correct, the action was commenced in time; otherwise it was barred on June 12, 1912, three years after the making of the alleged false certificates. According to Corpus Juris, vol. 1, p. 1146:

"The term 'to accrue,' as applied to a cause of action, means to arrive, to commence, to come into existence, to become a present and enforceable demand, and that a cause of action accrues when facts exist which authorizes one party to maintain an action against another, and that the term implies the coexistence of a demand capable of present enforcement, and of parties by and against whom it may be enforced."

In 1 Ruling Case Law, 337, it is said that in the case of an act causing an injury, if the injury, however slight, is complete at the time of the act, a cause of action accrues at that time. The case of Walker v. Bowman et al., 27 Okl 172, 111 P. 319, 30 L. R. A. (N. S.) 642, Ann. Cas. 1912B, 839, was an action on an abstracter's bond against the abstracter and...