25-207 Actions for trespass, conversion, other torts, and frauds; exceptions. - Nebraska Statutes

25-207. Actions for trespass, conversion, other torts, and frauds; exceptions.The following actions can only be brought within four years: (1) An action for trespass upon real property; (2) an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; (3) an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated; and (4) an action for relief on the ground of fraud, but the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud, except as provided in sections 30-2206 and 76-288 to 76-298. SourceR.S.1867, Code § 12, p. 395; R.S.1913, § 7569; C.S.1922, § 8512; C.S.1929, § 20-207; R.S.1943, § 25-207; Laws 1947, c. 243, § 11, p. 766; Laws 1975, LB 481, § 9.Annotations1. Conversion2. Fraud3. Real property4. Trusts5. Damages or injury6. Miscellaneous1. ConversionStatute of limitations against trustee for conversion of trust property does not commence to run until knowledge is brought home to beneficiary of repudiation of trust. Bratt v. Wishart, 136 Neb. 899, 287 N.W. 769 (1939).Where mortgagee of chattels unlawfully seizes mortgaged property before condition broken, action is barred after four years from date of seizure. Brashier v. Tolleth, 31 Neb. 622, 48 N.W. 398 (1891).2. FraudAn action for fraud must be brought within 4 years of when the cause of action accrues. Such action does not accrue until there has been discovery of the facts constituting the fraud or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which would lead to such discovery. NECO, Inc. v. Larry Price & Assocs., Inc., 257 Neb. 323, 597 N.W.2d 602 (1999).An action for relief on the ground of fraud can only be brought within 4 years. Such action accrues once there has been a discovery of facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. Bowling Assocs., Ltd. v. Kerrey, 252 Neb. 458, 562 N.W.2d 714 (1997).In the context of a fraud action, the limitations period begins to run upon discovery of the facts constituting the fraud, or facts sufficient to put a person of ordinary intelligence and prudence on an inquiry which, if pursued, would lead to such discovery. A cause of action cannot "accrue" before occurrence of all the elements which constitute a defendant's violation of a plaintiff's judicially protected right. Henderson v. Forman, 240 Neb. 939, 486 N.W.2d 182 (1992).If facts pleaded in a petition are sufficient to plead an excuse to the operation of the statute limiting action based on fraud, a general demurrer will be defeated. Lee v. Brodbeck, 196 Neb. 393, 243 N.W.2d 331 (1976).Where fraud should have been discovered within four years of recording of mineral deed, statute of limitations was complete defense. Jameson v. Graham, 159 Neb. 202, 66 N.W.2d 417 (1954).Accrual of cause of action for fraud is fixed as of the time of discovery. Abels v. Bennett, 158 Neb. 699, 64 N.W.2d 481 (1954).In action for relief based on fraud, suit was instituted when summons was served on original petition where amended petition merely set forth a more complete statement of original cause of action. Horrigan v. Quinlan, 149 Neb. 538, 31 N.W.2d 430 (1948).An action for relief on the ground of fraud may be commenced only within four years after the discovery of the facts constituting the fraud or of facts sufficient to put a person of ordinary intelligence on inquiry, which, if pursued, would lead to such discovery. Hollenbeck v. Guardian Nat. Life Ins. Co., 144 Neb. 684, 14 N.W.2d 330 (1944); Burchmore v. Byllesby & Co., 140 Neb. 603, 1 N.W.2d 327 (1941); Baxter v. National Mtg. Loan Co., 128 Neb. 537, 259 N.W. 630 (1935); Branham v. Ayers, 126 Neb. 688, 254 N.W. 259 (1934).In a bill of interpleader, a defendant is chargeable with notice of a cross-petition charging fraud filed against him by another defendant before answer day, and such notice may prevent the statute from running against the claim set up in the cross-petition. Provident Savings & Loan Assn. v. Booth, 138 Neb. 424, 293 N.W. 293 (1940).Actions for relief based on mistake and accident are analogous to actions for relief based on fraud, and are limited to four years. Sweley v. Fox, 135 Neb. 780, 284 N.W. 318 (1939).Action against bank officer for fraudulent diversion of assets of bank must be brought within four years of discovery of fraud. Department of Banking v. Hall, 135 Neb. 191, 280 N.W. 844 (1938).Lapse of four years after creditor of corporation acquired knowledge of facts sufficient to require inquiry as to fraud in connection with officer's purchase of corporation's assets barred creditor's action for relief on ground of fraud. Nipp v. Puritan Mfg. Supply & Co., 128 Neb. 459, 259 N.W. 53 (1935).Cause of action for fraud does not accrue until discovery of fraud. Marshall v. Rowe, 126 Neb. 817, 254 N.W. 480 (1934).Petition in action to set aside satisfaction of judgment executed in 1917, on ground of fraud, alleged to have been discovered in 1926, was not demurrable. Marshall v. Rowe, 119 Neb. 591, 230 N.W. 446 (1930).Action must be commenced within four years of discovery. Hanna v. Bergquist, 102 Neb. 658, 168 N.W. 365 (1918); Coad v. Dorsey, 96 Neb. 612, 148 N.W. 155 (1914).Where defendant took title in her own name to lands belonging to herself and her children, statute of limitations commenced to run on date of discovery of fraud. Bell v. Dingwell, 91 Neb. 699, 136 N.W. 1128 (1912).Statute of limitations does not bar the defense of recoupment. Kaup v. Schinstock, 88 Neb. 95, 129 N.W. 184 (1910).If relief is sought on the ground of fraud after four years, plaintiff should allege reason for delay in prosecuting action. Bank of Miller v. Moore, 81 Neb. 566, 116 N.W. 167 (1908).Action to set aside fraudulent conveyance is not tolled by death of the fraudulent grantor. Lesieur v. Simon, 73 Neb. 645, 103 N.W. 302 (1905).Equitable action by heir, who claims deed of ancestor is void on account of duress and fraud, must be brought within four years of accrual of action. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904), affirmed on rehearing 71 Neb. 57, 100 N.W. 311 (1904).Where plaintiff was defrauded in purchase of shares of stock of bank, cause of action did not accrue until discovery of fraud. Gerner v. Mosher, 58 Neb. 135, 78 N.W. 384 (1899).Matters appearing of public record operate as constructive notice and constitute discovery of facts with respect to fraud. State ex rel. County Commissioners of Brown County v. Boyd, 49 Neb. 303, 68 N.W. 510 (1896).Relief from the effect of accident or mistake comes within the same rule of limitation as fraud. Ainsfield v. More, 30 Neb. 385, 46 N.W. 828 (1890).Statute begins to run when party learns facts sufficient to suggest fraud. Wright v. Davis, 28 Neb. 479, 44 N.W. 490 (1890); Hellman v. Davis, 24 Neb. 793, 40 N.W. 309 (1888).Statute applies to fraud affecting real estate as well as personal property. Kohout v. Thomas, 4 Neb. Unof. 80, 93 N.W. 421 (1903).Where a third-party petition generally involves the title to certain real estate but the specific factual allegations involve fraud and the cause of action clearly seeks relief on the ground of fraud, the 4-year statute of limitations under this section applies rather than the 10-year statute of limitations found in section 25-202, involving recovery of the title or possession of lands. McGinley v. McGinley, 7 Neb. App. 410, 583 N.W.2d 77 (1998).Where action for fraud is commenced more than four years after fraudulent acts occurred, burden is on plaintiff to allege and prove that fraud was not discovered until within statutory period. Brictson v. Woodrough, 164 F.2d 107 (8th Cir. 1947).Four-year Nebraska limitations statute on fraud could not commence to run until reinsurers were informed of extent of reinsured's misrepresentations regarding size of unearned premium portfolio, existence of excess and special risks department, and agent's status as managing general agent. Calvert Fire Ins. Co. v. Unigard Mut. Ins. Co., 526 F.Supp. 623 (D. Neb. 1980).3. Real propertyWhere a covenant against encumbrances and covenants of warranty or quiet enjoyment appear in the same instrument, they are separate and independent covenants and one does not embrace the other. Cape Co. v. Wiebe, 196 Neb. 204, 241 N.W.2d 830 (1976).Statute of limitations did not begin to run against a remainderman until knowledge was brought home to him that another was claiming title adversely. Graff v. Graff, 179 Neb. 345, 138 N.W.2d 644 (1965).Actions for slander of title are not governed by this section. Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957).In action to quiet title to easement, an affirmative claim by defendant for damages for land taken is barred by statute of limitations. Dawson County Irrigation Co. v. Stuart, 142 Neb. 428, 6 N.W.2d 602 (1942), vacated on rehearing, 142 Neb. 435, 8 N.W.2d 507 (1943).Where defendant mortgagor in foreclosure proceeding claims damages for alleged misrepresentations by mortgagee, such defense is not barred by statute of limitations though it would be barred in an original action on the same cause of action. Mettlen v. Sandoz, 131 Neb. 625, 269 N.W. 98 (1936).Whether fraud by misrepresentation in real estate trade should have been discovered within limitation period was for jury. Vrbsky v. Arendt, 119 Neb. 443, 229 N.W. 337 (1930).Statute may run in favor of one in possession of land so as to bar claim for rents and profits beyond period of limitation. Davis v. Davis, 112 Neb. 178, 199 N.W. 113 (1924).Statute does not run against action of rescission of exchange of lands until discovery of fraud. Carson v. Greeley, 107 Neb. 609, 187 N.W. 47 (1922).Action to remove cloud on title to real estate, created by recorded deed, must be brought within four years after defendant took possession claiming title under deed. Dringman v. Keith, 93 Neb. 180, 139 N.W. 1044 (1913); Dringman v. Keith, 86 Neb. 476, 125 N.W. 1080 (1910).Fraudulent deed recorded is not of itself sufficient to charge parties with notice. Forsyth v. Easterday, 63 Neb. 887, 89 N.W. 407 (1902); Gillespie v. Cooper, 36 Neb. 775, 55 N.W. 302 (1893), overruled in Jones v. Danforth, 71 Neb. 722, 99 N.W. 495 (1904).4. TrustsThis section is the applicable statute of limitations with regard to the establishment of a constructive trust on personal property. Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).The statute of limitations does not begin to run in case of a resulting trust until trustee clearly repudiates his trust, and the time it commences to run must be determined upon facts in each case. Jirka v. Prior, 196 Neb. 416, 243 N.W.2d 754 (1976).Statute does not begin to run against an action to restore beneficial interests in land under resulting trust until trustee denies the interest of the beneficiaries. Windle v. Kelly, 135 Neb. 143, 280 N.W. 445 (1938).Where trustee, through himself as president of bank, purchased with trust funds valueless notes from bank and concealed transactions, running of statute was tolled. First Trust Co. of Lincoln v. Exchange Bank, 126 Neb. 856, 254 N.W. 569 (1934).Statute runs in favor of trustee ex maleficio from time of discovery of fraud. Abbott v. Wagner, 108 Neb. 359, 188 N.W. 113 (1922).5. Damages or injuryA claim for damages caused by a continuing tort can be maintained for injuries caused by conduct occurring within the statutory limitations period. When there are continuing or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong continues or each time it is repeated, the result being that a plaintiff is only barred from recovering damages that were ascertainable prior to the statutory period preceding the lawsuit. Alston v. Hormel Foods Corp., 273 Neb. 422, 730 N.W.2d 376 (2007).This statute of limitations applies to actions allegedly arising under 42 U.S.C. section 1983. Bauers v. City of Lincoln, 245 Neb. 632, 514 N.W.2d 625 (1994).Under this section, plaintiff had four years from date of damage to file product liability action. New product liability statute of limitations appears at section 25-224. Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500 (1981).An action grounded in tort must be commenced within four years of the occurrence of the event giving rise to the cause of action. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979).Where defendant, which was plaintiff's insurance carrier, had made no payment to plaintiff for damage caused by a third party, it had no duty to sue as subrogee, and its failure to do so before the statute of limitations ran did not make it liable. Schmer v. Hawkeye-Security Ins. Co., 194 Neb. 94, 230 N.W.2d 216 (1975).An action for an injury hereunder accrues when the damage occurs and not when plaintiff discovers cause of the damage. Omaha Paper Stock Co., Inc. v. Martin K. Eby Constr. Co., Inc., 193 Neb. 848, 230 N.W.2d 87 (1975).Recovery for loss of crops was limited to period of four years before action was brought. Wischmann v. Raikes, 168 Neb. 728, 97 N.W.2d 551 (1959).Damages to growing crops from floodwaters are limited to period commencing four years before commencement of action. Wischmann v. Raikes, 167 Neb. 251, 92 N.W.2d 708 (1958).Where intention to inflict injury is entirely lacking, action in tort may be brought within four years. Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948).Right to damages for obstruction of a stream by an insufficient culvert or drain does not accrue when the structure is built but when the overflow actually results. Schmutte v. State, 147 Neb. 193, 22 N.W.2d 691 (1946).Action for damages for alienation of affections was not barred by statute of limitations. Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4 (1934).In actions for tortious interference with a business relationship, the statute of limitations under this section begins to run when the injury actually occurs. Additionally, this section does not provide for a discovery rule for tortious interference. Under this section, a claim for damages based on intentional interference with a contractual relationship accrues when the subject contract is breached, regardless of when the defendant supposedly induced the breach. Hroch v. Farmland, 4 Neb. App. 709, 548 N.W.2d 367 (1996).Husband's action for alienation of affection accrues when wife leaves home and severs relationship, and the limitations period is not extended by the fact that the husband does not give up on the possibility of renewal of relationship until later, and thus suffers continuing damages. Mattice v. Messer, 493 F.2d 498 (8th Cir. 1974).In tort action for occupational disease, statute begins to run when employee acquires knowledge of compensable injury. Sylvania Electric Products, Inc. v. Barker, 228 F.2d 842 (1st Cir. 1955).Where buyer sued to recover on substitute arbitrator's award because grain delivered did not equal sample, but creditors for whose benefit debtor's grain was being sold refused to be bound by agent's unauthorized appointment of substitute, claim for damages in amended petition was not barred by statute of limitations as change in character of relief sought did not prevent original petition from tolling statute. Otoe County National Bank v. Delaney, 88 F.2d 238 (8th Cir. 1937).Statute of limitations was not tolled by absence from state of alleged tort-feasor, a California resident who was involved in automobile accident within the state, if at all times following accident California resident could be sued in the state by virtue of nonresident motor vehicle statute. Gatliff v. Little Audrey's Transportation Co., Inc., 317 F.Supp. 1117 (D. Neb. 1970).6. MiscellaneousThis section applies to counterclaims when read in conjunction with sections 25-201 and 25-217 and the rule that a counterclaim must be an existing, valid, and enforceable cause of action. However, whether a counterclaim is barred by this section is determined by the date the related petition was filed, rather than the date the counterclaim was filed. Becker v. Hobbs, 256 Neb. 432, 590 N.W.2d 360 (1999)."Discovery," as used in this statute, means that an individual acquires knowledge of a fact which existed but was previously unknown to the discoverer. If a petition challenged under the statute of limitations facially shows that a cause of action is barred by the statute, a plaintiff must allege facts sufficient to avoid the bar of the statute and must prove those facts at trial; but if a petition does not disclose on its face that an action is barred by the statute of limitations, the defendant must plead and prove the statute as an affirmative defense. Broekemeier Ford v. Clatanoff, 240 Neb. 265, 481 N.W.2d 416 (1992).The filing of a petition does not toll the running of this statute of limitations for the purpose of bringing subsequent actions on the same set of facts. Sluka v. Herman, 229 Neb. 200, 425 N.W.2d 891 (1988).This statute provides the applicable statute of limitations for actions for mutual mistake. The statute of limitations begins to run when mutual mistake was discoverable by reasonable diligence. Newton v. Brown, 222 Neb. 605, 386 N.W.2d 424 (1986).The point at which a statute of limitations commences to run must be determined from the facts of each case; a cause of action accrues, and the statute of limitations begins to run, when the aggrieved party has the right to institute and maintain suit, even though such plaintiff may be ignorant of the existence of the cause of action. Mangan v. Landen, 219 Neb. 643, 365 N.W.2d 453 (1985).Four-year general statute of limitations applies to employer liable as joint tort-feasor with employee killed in accident, even if plaintiff's claim against estate of employee was filed out of time and barred by two-year nonclaim statute. S.M.S. Trucking Co. v. Midland Vet, Inc., 186 Neb. 647, 185 N.W.2d 667 (1971).This section is not applicable to misrepresentation as to nature and cause of patient's condition in action against physician. Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964).Where petition was amended to change cause of action from action on contract to action based on tort, statute of limitations continued to run until filing of amended petition. Blair v. Klein, 176 Neb. 245, 125 N.W.2d 669 (1964).The defense of the statute of limitations is a personal privilege of the debtor, and may be waived. Gurske v. Strate, 165 Neb. 882, 87 N.W.2d 703 (1958).Where answer pleaded defense of statute of limitations, instruction thereon was required. Harsche v. Czyz, 157 Neb. 699, 61 N.W.2d 265 (1953).Limitation in surety bond, that any loss for which claim is made must be discovered during term of bond or within fifteen months after termination of surety's liability as to the employee involved is not void as attempting to shorten by contract the time within which action for fraud can be brought. Dunbar v. National Surety Corporation, 140 Neb. 833, 2 N.W.2d 116 (1942).Under the United States Constitution, conferring on Congress power to pass uniform laws on the subject of bankruptcy, the two-year statute of limitations in the bankruptcy act supersedes all statutes of limitations passed by the various states. Engebretson v. West, 133 Neb. 846, 277 N.W. 433 (1938).Second amended petition, introducing new causes of action which are barred by statute of limitations, cannot be basis for recovery against defendant. Rule does not apply to allegations of original petition, filed before statute had run. Streight v. First Trust Co. of Omaha, 133 Neb. 340, 275 N.W. 278 (1937).Actions which in substance and effect are actions for money had and received, in the absence of specific statute of limitations, must be brought within four years from receipt of the money. Torgeson v. Department of Trade and Commerce, 127 Neb. 49, 254 N.W. 740 (1934).Bank receiver's suit to recover bank's assets used to repay deposit of bankers' conservation fund was barred by statute of limitations. Torgeson v. Department of Trade and Commerce, 127 Neb. 38, 254 N.W. 735 (1934).Statute will not run against action by pledgor to recover collaterals until liability is determined or repudiation of trust by pledgee. Parker v. First Nat. Bank of Omaha, 118 Neb. 96, 223 N.W. 651 (1929).Statute does not begin to run against action for money had and received, where suit is for recovery of payment on land, until contract is terminated. Thiele v. Carey, 85 Neb. 454, 123 N.W. 442 (1909).Time of commencing action for support of child born out of wedlock stated. Denham v. Watson, 24 Neb. 779, 40 N.W. 308 (1888).Section 25-222 is a specific exception as to professional negligence from the normal four-year statute of limitations. Horn v. Burns & Roe, 536 F.2d 251 (8th Cir. 1976).While a party is prevented from enforcing a legal right by some paramount authority, the statute of limitations ordinarily is not treated as running against the right. Yoder v. Nu-Enamel Corporation, 145 F.2d 420 (8th Cir. 1944).Tort claim in state court against estate of deceased was barred by statute of limitations, but a federal diversity action against representatives of the estate not barred for four-years. Williams v. Hawkeye-Security Ins. Co., 428 F.Supp. 976 (D. Neb. 1977).