On Petition Foe Reheaeing.
Royse, J.Appellee has filed a petition for a rehearing in this case. It is voluminous and filled with specious argument that is in no way germane to the question decided in our original opinion.
It first contends that the cases of Read et al. v. Beczkiewicz, Treasurer, et al. (1939), 215 Ind. 365, 18 N. E. 2d 789, 19 N. E. 2d 465; City of Hammond v. Melville, et al. (1943), 114 Ind. App. 602, 52 N. E. 2d 845; City of Hammond v. Welsh (1946), 224 Ind. 349, 67 N. E. 2d 390, cited in our original opinion does not sustain our holding that the statute of limitations did not begin to run against ap*403pellant until after appellee had received payment from the property owners on the assessments. It contends those cases hold the city is only liable when there is a misapplication or diversion of Barrett Law Funds and that the complaint did not allege such misapplication or diversion.
In the Read case, supra, our Supreme Court said, at pp. 375, 376:
“When the assessments are paid to the city, the lien upon the property is to that extent discharged, and the city becomes the principal obligor upon the bond to the extent of the payments of assessments received by it . . . The bondholder has no control over the funds paid to the city. Once they are received, the city becomes the principal upon the bond, and the funds are the property of the city. In collecting the assesments the city does not act as the agent of the bondholder. It does not hold the funds as a mere agent. In issuing the bonds it binds itself by contract, and the statute becomes part of the contract, and under the statute the city becomes liable to the extent of collections made. In levying the assessments the city exercises the sovereign power of taxation. The bonds are the city’s bonds and not the bonds of the property owner. They differ from general obligations only in that the city’s liability to pay is limited by the statute, and hence by the contract to amounts actually collected, plus certain other items hereafter noted.” (Our emphasis.)
It seems to us this is a clear, precise, unambiguous statement as to when and under what circumstances the city becomes liable to the bondholder. There is nothing in the opinion that would lend the slightest support to the contention of appellee that the city becomes liable only when there is a misapplication or diversion of the funds collected.
*404*403The Supreme Court in the Read case, supra, cited as authority and approved the sound reasoning of this *404court in City of Bloomington v. Citizens National Bank, 56 Ind. App. 446, 105 N. E. 575 on this question. There appellee brought an action against the city to recover assesments collected by it on bonds owned by appellee. The city filed a second paragraph of answer in which it admitted its treasurer had collected these funds. It then averred said treasurer wrongfully and unlawfully converted and retained such funds for his own use. It further avers the treasurer executed a bond upon which he was liable for the funds so collected and that the principal and sureties on said bond were solvent, etc. The trial court sustained a demurrer to this paragraph of answer. In sustaining the action of the trial court, we said:
“The city cannot avoid the payment of these bonds upon any technical construction of the duty of its officials as the agent of the one party or the other. The city received the money in the usual way, through its properly authorized official. Upon its receipt it became the duty of the city to see to it that it was applied in the proper way to the payment, in this instance, of the bonds in suit. The failure to do this renders the city primarily liable. The city will not be discharged from its obligation to pay this debt because one of its officials, in this case the city treasurer, misappropriates the funds in his custody. To so hold would be to destroy in a large measure the beneficial operation of the public improvement statute, and likewise encourage neglect of city governments in the proper discharge of their official duties. While it is no doubt true that the city may recover from the bondsmen of the city treasurer who has misappropriated the funds any amount of money so misappropriated, it is equally true that when the money is paid into the city treasury, the city is primarily liable to the holder of the obligations sued on in this action. Indiana Bond Co. v. Bruce (1895), 13 Ind. App. 550, 41 N. E. 958; City of Huntington v. Force (1889), 152 Ind. 368, 63 N. E. 443; Porter *405v. City of Tipton (1895), 141 Ind. 347, 40 N. E. 802”. (Our emphasis).
The last cited cases hold that the city becomes liable to the contractor for public improvements only after it has sold the improvement bonds.
In the Welsh case, supra, at p. 351, the Supreme Court said:
“When installments of assessments were collected the city became primarily liable on the bonds entitled thereto for the amount of the collections notwithstanding misapplication of such collections to owners of other bonds”. (Our emphasis).
The word “notwithstanding” has a well understood meaning. It means: “in spite of”; “despite.” Webster’s New International Dictionary. In other words, the court in that case said that “despite” the fact, or “in spite of” the fact that the funds had been misapplied the city was liable. But appellee would change this clear term to mean that the city was liable only because the funds were misapplied. Such a construction would pervert the clear intent of our Supreme Court.
The Melville case, supra, was decided on the authority of the Read case, supra.
From the foregoing it will be seen that there is no merit to appellee’s contention that the Read case, supra, initiated a legal fiction which was only applicable where there has been a misapplication or diversion of the funds collected by the city. It seems clear to us that for more than fifty years it has been the rule that when the city receives funds either from the sale of the bonds, or in payment of the property owners’ assessments, it becomes directly liable to the party or parties entitled thereto. Of course, as pointed out in our original *406opinion, the city is liable only to the extent of payments received by it.
Appellee next says our decision “ignores the fact that appellant under the facts stated in his complaint, has a remedy by way of mandamus against the reluctant County Treasurer” and therefore contravenes a ruling precedent of the Supreme Court, citing: Conter, Treasurer v. Lincoln National Life Insurance Company (1937), 212 Ind. 125, 8 N. E. 2d 232. The petition for rehearing is the first time appellee has made such contention. In that case appellee brought an action to mandate appellant to pay it as the owners of all bonds of certain special assessment bond issues. The action was brought pursuant to the provisions of the Acts of 1935, ch. 17, pp. 1526, 1533, §48-4406, Burns’ 1950 .Replacement, providing as follows :
“Whenever it shall be established to the satisfaction of any officer of the city or town whose duty it is to disburse payments made by property owners to owners of bonds issued on any public improvement that any person, firm or corporation is the owner and holder of all the outstanding bonds on any such public improvement on which payments have been made by property owners, it shall be the duty of such disbursing officer upon demand of such bondholders to immediately pay to said bondholders all the payments made by such property owner, or property owners. Such payments shall be made to such bondholders upon demand notwithstanding the fact- that part of such bonds may not yet be due. Whenever any such bonds are not yet due any payments so made to such bondholder shall be entered as a credit upon said bonds, or the coupons thereto attached. The interest on such bonds shall be reduced in accordance with any payment of principal credited thereon.”
Appellant’s demurrer to the complaint was sustained and the Supreme Court in sustaining that action, said:
*407“It seems clear that the language of the statute puts upon the proper disbursing officer the imperative duty to pay over to the ‘owner and holder of all the outstanding bonds on any such public improvement on which payments have been made by property owners.’ And we believe the legal effect of the language of the statute is to give a bondholder who comes within the terms of the statute the right to compel, by an action of mandate, the proper disbursing officer to pay over ‘payments . . . made by property owners.’ ” (Our emphasis).
It is difficult to understand by what process of reasoning appellee can assert our decision contravenes the rule stated in that case. There was no question there of the statute of limitations. In this case there is no allegation that appellant was the owner of all the bonds of the special assessment bonds. Under the provisions of the statute quoted above, mandate only applies where all of the bonds are owned by one person, firm or corporation.
Appellee further contends that our opinion contravenes the ruling precedent of the Welsh case, supra, which held the ten-year statute of limitations applies to these bonds. In our original opinion we cited that case and held the ten-year statute was applicable. In that case the court stated the record showed the action was started October 23, 1944 and therefore bonds falling due before' October 23, 1934 were barred. There the Supreme Court was not considering the sufficiency of the complaint against a demurrer based on the statute of limitations. Appellee herein has not contradicted our statement in the original opinion — “that unless it clearly appears that the case does not fall tvithin any of the exceptions to the statute the question cannot be raised by demurrer.” (Our emphasis.) The complaint herein avers that before and after the bonds matured appellee received payments *408from the property owners on these assessments. Considering these averments as true, as we must, the statute, as stated in our original opinion, could not and did not commence to run against appellant until appellee received such payments. In Read v. Beczkiewiscz, Treasurer, supra, at pp. 380, 381, the Supreme Court said:
“If delinquency interest was paid by the property owners, it must be paid to the bondholders whenever their bonds are presented. If the property owners paid only the principal and interest to the date of payment, whether payment was made before maturity or thereafter, and the amount of the principal and interest received is paid to the bondholder upon the first presentation of the bond, he can claim no more. But if principal and interest have been paid to the city, and the bond is presented for payment and not paid, the city is liable not only for the interest received, but also for interest from the date of the presentment of the bond for payment until paid.” (Our emphasis).
In considering the sufficiency of this complaint we believe the holding in that case is direct authority for our decision.
It is next asserted that our holding that the stamping of the bonds “not paid for want of funds” when in fact payments had been made by the property owners to the city, was at least construction fraud which would stay the statute of limitations, contravenes the ruling precedent of the case of Kimes et al. v. City of Gary et al. (1946), 224 Ind. 294, 66 N. E. 2d 888. It bases this contention on the statement in that case that the relation between the city and a bondholder is contractual. It then says a mere creditor has no right to compel his debtor to account in equity in the absence of any trust relationship between them. The Read case, supra, held the relationship between the bondholders and city was not a trust. There is nothing in our original opinion which gives even a slight inference *409that we considered there was a trust relationship in this case. This was not an action for an accounting.
In the case of Budd v. Board of County Commissioners of St. Joseph County et al. (1939), 216 Ind. 35, 22 N. E. 2d 973, no trust was involved. In speaking of constructive fraud the Supreme Court said:
“Fraud may be actual or constructive. Constructive fraud is a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. 26 C. J. p. 1061; Gorham v. Gorham (1913), 54 Ind. App. 408, 103 N. E. 16. Such a situation may arise when the conduct under inquiry is so manifestly wrong and prejudicial to the public interest as to create a conviction that it was the result of fraud and a plain disregard of public duty. Robling, et al. v. The Board of Commissioners of Pike County, et al. (141 Ind. 522, 40 N. E. 1079). While fraud is never presumed, if the facts alleged show fraud, either actual or constructive, no positive averments of it are necessary. Holliday v. Perry (1906), 38 Ind. App. 588, 78 N. E. 877.” (Our emphasis).
In the case of Drake et al. v. Eggleston (1952), 123 Ind. App. 306, 108 N. E. 2d 901 (Transfer denied), no trust was involved. This court, speaking through Judge Crumpacker, said, in part:
“. . . the word ‘fraud’ cannot be limited to a situation where one entertains a preconceived design to circumvent or cheat another. It includes a breach of duty, independent of moral guilt, which the law declares fraudulent because of its tendency to violate confidence or deceive others.” (Our emphasis.)
*410*409We are of the opinion the allegations of the complaint are sufficient to show constructive fraud. Our opinion
*410on this subject follows the Welsh case, supra, in which our Supreme Court rejected the contention of the appellants that appellees were estopped from asserting their claim because they had acquiesced in the payments for a period of fifteen years. Speaking on that question, the court, at pp. 354, 355, said:
“To meet the requirements of knowledge appellant contends that the books and records in the treasurer’s office show the facts and that, these being public records, appellee is charged with notice of the facts so shown. We do not believe that a citizen may be charged with constructive or implied knowledge of every figure in the city treasurer’s complicated books and records or with knowledge of the source of every dollar paid to him over the counter in the treasurer’s office simply because he has the right to examine the complicated accounts in the treasurer’s office. He cannot reasonably be required to go behind the free and voluntary acts of a responsible bonded public officer acting in the course of his public duties and, if qualified, check his books and accounts to determine the validity of a proposed transaction before he dare proceed with it.”
We feel the foregoing is particularly applicable in this case. Furthermore, it is based on principles of public policy and sound reason. If the converse were true it would place almost insurmountable difficulties to the sale of Barrett Law bonds and thereby jeopardize the very object of the statute.
Appellee further contends that our statement that—
“If a property owner, does not pay his assessments within ten years from date of their last maturity, he may assert the statute as defense to an action on the bonds. Under such circumstances the City is not and never was liable for the payment of the bonds. It seems to us it would be unconscionable to say that where a property owner, after the statute had run, determined not to take advantage of his personal privilege and paid the money to the *411proper city official, that then the City could retain this money and refuse to pay the bondholders the amount paid in. Yet this is the contention of appellee here.”
creates a new statute of limitations with reference to suits in foreclosure against property owners.
In the Read case, supra, at pp. 384, 385, the Supreme Court said:
“In case assessments are not paid the bondholder has three remedies. The property may be sold as for delinquent taxes, he may bring an action to foreclose the lien against the property, or he may sue and recover judgment against the property owner who signed the waiver.”
See also: Englehart’s Estate et al. v. Larimer et al. (1937), 211 Ind. 218, 5 N. E. 2d 304; Feder, Receiver v. Gary State Bank et al. (1934), 98 Ind. App. 513, 186 N. E. 379 (Transfer denied).
There is nothing in the above quoted statement from our original opinion that in any way indicates we were referring to foreclosure proceedings. We were merely adhering to the long and well-established elementary principles referred to in the cited cases and the authorities cited therein.
Appellee next asserts “it is unconscionable for the taxpayers in the city to be required to pay special improvement bonds issued over thirty years ago where no taxpayers in the ensuing thirty years have received any benefits from the improvement, and its duly elected officials never contracted to pay the bonds in the first place.”
There is nothing in our original opinion which would lead reasonable men who understood the English language to assert we held the taxpayers were liable for the payment of these bonds unless the property owners had first paid the city the amount *412of their assessment. -We stated then, and again reiterate, that if a property owner pays the city treasurer part or all of his assessment after the- statute of limitations has run, the city is liable to the bondholder for the, amount paid by the property owner. That is the holding of the Read case, supra, and other cases cited herein, which cases likewise hold these bonds are the city’s bonds.
Finally, for reasons which we do not understand appellee devotes more than seven pages (six of which are single spaced) of its petition to a recitation of the findings of fact in the case of Gilkison et al. v. Darlington et al. (1952), 123 Ind. App. 28, 106 N. E. 2d 473. They do not contend the decision in that case has anything to do with the question before us here. They say it is an example of what unscrupulous attorneys will do for financial gain. There is nothing in that case which indicates this court regarded the Read case, supra, and the other cases following it, as creating some kind of hybrid legal fiction. We did in that case reverse the action of the trial court in permanently enjoining the bondholders from prosecuting the actions they brought in the Lake County Courts.
Because of the subtle misconstruction appellee has placed on the decisions of the Supreme Court and this court in reference to Barrett Law bonds, we have analyzed and quoted in some detail those cases. In our opinion they have established a rule of property which we neither have the authority nor inclination to change. In doing this there is a danger that the import of our original opinion and decision may be overlooked.' Our decision merely holds that a demurrer to the complaint in this case did not properly raise the question of the statute of limitations. There is in this jurisdiction a well-established procedure for raising such a question. *413Our decision has not foreclosed the right of appellee to follow this procedure.
Petition for rehearing denied.
Achor, J., concurs in result with opinion to follow.
Crumpacker, C. J., not participating.
Kelley, J., dissents with opinion.
Bowen, J., concurs in dissenting opinion.