Owen v. Western Saving Fund

• Citation: 97 Pa. 47
• Parties: Owen <I>versus</I> Western Saving Fund.
• Decision Date: 31 January 1881
• Court: United States State Supreme Court of Pennsylvania

97 Pa. 47

Owen versus Western Saving Fund.

Supreme Court of Pennsylvania.

January 7, 1881.

January 31, 1881.

January 7th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 356.

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George Northrop, for plaintiff in error.—This is not a suit on the official bond of the recorder, but an action on the case, for a merely negligent act. It is admitted that there was no fraud by the recorder. The Statute of Limitations, by its terms, runs from the time when the cause of action was complete, and the vital question here is, when did the cause of action accrue? Our Statute of Limitations is identical with the English Statute of James; and the leading case of Howell v. Young, 5 B. & C. 259, which is on all fours with this case, settled the construction that, in the absence of fraud, the statute begins to run from the date of the negligence or other breach of duty, and not merely from the consequences or discovery of it. This case has been followed in the Pennsylvania and United States decisions: Wilcox v. Executors of Plummer, 4 Pet. 172; Miller v. Wilson, 12 Harris 121; Glenn v. Cuttle, 2 Grant 275; Campbell v. Boggs, 12 Wright 524; Barton v. Dickens, Id. 523; Marsteller v. Marsteller, 37 Leg. Int. 414; Moore v. Juvenal, 11 Norris 484. The statute runs from the time of the negligent act, though it was altogether problematical whether the plaintiff would ever sustain any damage: Wilcox v. Executors of Plummer, supra. In Hanna v. Holton, 28 P. F. Smith 334, relied on by the plaintiff and the court below, the decision was based on the fact that the defendant's duty was a continuing one, the neglect of which was not complete, and therefore the cause of action did not accrue until within six years of suit brought.

As to the form of action. Actions on the case are divided into two kinds: 1. Where either assumpsit or case would lie, in other words, where the action sounds in contract. 2. Where it sounds in tort, and either trespass or case would lie. In the first class, within which this case falls, there is no distinction in the law as to the running of the statute, except in cases of fraud. It is immaterial whether the action be assumpsit, debt or case, the statute is equally a bar, and begins to run from the same period, viz., the date of the negligent act. The plaintiff, by choosing a particular form of action, cannot take from the defendant his substantial protection of the statute. It is the cause of action, not the form, which determines the applicability of the statute: Downey v. Gerrard, 12 Harris 53; Wickersham v. Lee, No. 2, 2 Norris 425. The distinction attempted to be drawn between assumpsit and case, in respect to the statute, is without authority. The few dicta apparently in favor of it occur in cases of assumpsit. No precedent can be found that, in the absence of fraud, knowledge on the part of the plaintiff is necessary to set the Statute of Limitations running. To make it so would be to alter the statute.

The absence or prevention of knowledge on the part of the plaintiffs was caused solely by the fraud of a third party, whose act cannot alter the application of the law as to privies. The plaintiff has his action against the fraudulent third party, the recorder has not. The cause of action against the recorder was complete when the certificate was given.

Wm. Henry Rawle, for the defendant in error.—Statutes of limitation are to afford repose by barring stale claims, which the parties have had full opportunity to sue for, but have omitted so to do. Hence, until the cause of the particular action which the defendant sets up the statute to bar has arisen — until the right is complete to institute that action — the statute does not begin to run: Cooley on Constitutional Limitations ^*336; Wickersham v. Russell, 1 P. F. Smith 71, 74; Marsteller v. Marsteller, 37 Leg. Int. 414.

This action is for an injury happening in 1878, by reason of a false certificate of search given in 1867 by the defendant in his official capacity. It is not for breach of contract, nor for giving a false certificate. The very object of the certificate was to relieve the party who received and paid for it from the duty of inquiry, hence the plaintiffs, in relying on it, were guilty of no laches. Until 1878, they not only had no knowledge of its falsity, but were in fact not injured. Non constat that they ever would be injured, for (1.) The owner might pay off the first mortgage; (2.) He might pay off our mortgage; (3.) We might assign our mortgage; or, (4.) The property might bring enough at sheriff's sale to cover both mortgages. Until the injury, the defendant was not liable for damages, and until the knowledge we had no right of action. Hence, the action is not for giving a false certificate, but for the injury caused by its falsity. The recorder's official duty is to give true searches for a stipulated fee; his bond is, by the Act of 1775, to indemnify parties who shall be damnified; he stands, by effect of the statute, in the attitude of insurer, not a mere party to a private contract entered into at his option; and he is not liable in damages until loss occurs.

The distinction is marked between torts arising out of breach of contract between private parties, and those arising from official misfeasance. In the former, full prospective damages can be recovered immediately from the breach; in the latter, the statutory cause of action occurs when the damage is developed, and the official is only liable for actual damages suffered. If a sheriff falsely returns a summons nihil habet, and the defendant voluntarily appears, there is a breach of duty, but no right of action for the false return. The attorney cases, relied on by plaintiff in error, were in assumpsit, and are not applicable to actions in case against public officials; moreover, they were decided on the ground of lack of diligence in the client, in not inquiring, &c.: Hanna v. Holton, 28 P. F. Smith 334; Kimball v. Connolly, 3 Keyes 57; Planck v. Anderson, 5 Term Rep. 37; Williams v. Mostyn, 4 Mees. & Wells. 145; Bank v. Waterman, 26 Conn. 324; McCaraher v. Commonwealth, 5 W. & S. 25; Ziegler v. Commonwealth, 2 Jones 227; Commonwealth v. Harmer, 6 Phila. R. 90; Siewers v. Commonwealth, 6 W. N. C. 17; Rhines v. Evans, 16 P. F. Smith 194; Howell v. Young, 5 Barn. & Cres. 259; Lytle v. Mehaffy, 8 Watts 267; Angell on Limitations, § 129; Harriman v. Wilkins, 20 Me. 97; Newbert v. Cunningham, 50 Id. 231.

In actions upon the case for consequential injuries, the Statute of Limitations only commences to run from the time the damage is developed: Hanna v. Holton, 28 P. F. Smith 334; Campbell v. Boggs, 12 Wright 524; Wheatly v. Baugh, 1 Casey 534; Whitehouse v. Fellowes, 10 Com. Bench, N. S., 765; Ludlow v. Hudson River Co., 6 Lansing 133; Hancock v. Wilhoite, 1 Duvall 313; Polly v. McCall, 37 Ala. 20; Thornton v. Turner, 11 Minn. 336; Foster v. Marsh, 25 Iowa 300; Angell on Limitations, § 304.

The result of a different view...