Concurring Opinion on Rehearing
Achor, J.Concurring with the Majority Opinion.
The law is now well settled in this state that where a municipality has collected public assessments against which Barrett Bonds are outstanding, the City becomes primarily liable to the bondholders for the amount collected and it is immaterial that such funds are lost by failure of a depository, by misapplication or misappropriation and that, except under special circumstances, as provided in §48-4406, Burns’ 1950 Replacement, action against the City upon said bonds for the amount collected is a proper remedy. 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. It has also been determined that the action being on the written contract of the bond, and not in account, the 10 year statute of limitations (§2-602 Fifth, Burns’ 1946 Repl.) is applicable. City of Hammond v. Welsh, supra.
In this case, the sufficiency of appellant’s complaint is challenged by demurrer. The specific ground for demurrer now urged by appellee is that the action is barred by the statute of limitations. The rule in this state as to the effect of pleading the statute of limitations by demurrer has been stated as follows in the *414case of Charters v. Citizens Nat. Bank (1925), 84 Ind. App. 15, 19, 145 N. E. 517:
“. . . It has frequently been held by the courts of appeal, and is a well-established rule, that where there are exceptions to the statute of limitations, and it is desired to defend on the ground that the action is barred by the statute, the question cannot be raised by demurrer to the complaint. The statute must be pleaded in bar of the action, unless it affirmatively appears from the complaint that the cause does not come within any of the exceptions. Pence, Exr. v. Young (1899), 22 Ind. App. 427, 53 N. E. 1060; Roberts v. Smith (1905), 165 Ind. 414, 74 N. E. 894. . . .”
Therefore, the question which this court is required to determine is whether facts affirmatively appear from the face of the complaint, not only that there has been the required statutory lapse of time but that the case is not within any of the exceptions to the statute.
The allegations in the case before us are that the bonds became due from December 1, 1931, to December 1, 1933, and that substantial payments had been made, both before and after due dates thereof, and that each of the bonds sued on had been presented to the City Treasurer for payment as they became due but that full payment had been refused for want of sufficient funds and, accordingly, had been stamped “Not Paid for want of funds” by the City Treasurer. That partial payments were made to the bondholders on December 29, 1939, January 27, 1942, and September 29, 1942.
There was no general obligation on the part of the City to pay the bonds sued on. The bondholder’s right of action against the City accrued when the bonds became due and payment had been made on the assessments for the payment of the same. 54 C. J. S., p. 9; The Board of Commissioners of Wabash County v. Pearson (1889), 120 Ind. 426, 22 N. E. 124. There*415fore, the statute did not begin to run until such payment had been made.
In the case before us the complaint loosely alleges that payments were made after the date of maturity of the bonds sued upon. Whether such payments were made one year or seventeen years prior to the filing of this action does not appear on the complaint. Appellee did not ask that the complaint be made more specific. Therefore, there is nothing in the complaint to fix the time when the statute began to run as to the payments made after maturity. Consequently, it cannot be said with certainty from facts appearing on the face of the complaint that this action was barred by the statute of limitations as to payments made “after” maturity and within 10 years prior to the filing of this complaint.
Furthermore, we cannot say that it “affirmatively appears from the complaint that the cause does not come within any of the exceptions” of the statute. It appears from the complaint that substantial payments had been made on said bonds prior to their date of maturity; that thereafter the holders thereof presented the same to the City Treasurer for payment but that payment on said bonds was refused “for want of funds” and they were accordingly stamped “Not paid for want of funds,” although substantial payments had, in fact, been made on the assessments therefor when due. This representation was an affirmative act which hid the truth, mislead the appellant and prevented discovery by him of the fact of payment. Therefore, it constituted “concealment” within the meaning of §2-609, Burns’ 1946 Replacement, which is a statutory exception to the statute of limitations. Charters v. Citizens Nat. Bank, supra; Stone, Administrator v. Brown et al. (1888), 116 Ind. 78, 18 N. E. 392; 56 C. J. S., p. 219.
Although such “concealment” allegedly occurred in 1933, material facts regarding any “notice” thereafter *416to appellant by the City Treasurer, as provided in §48-4404, Burns’ 1950 Replacement, and material facts regarding discovery of such concealment by appellant, “or the exercise of diligence” by appellant to make such discovery, do not appear in the complaint. See Marengo Cave Co. v. Ross (1937), 212 Ind. 624, 10 N. E. 2d 917. Therefore, we are not able to determine when, if at all, the statute of limitations again began to run after the “concealment” above discussed. The appellee did not ask that the complaint be made more specific in order that these facts be made to appear.
We express no opinion as to whether the statute of limitations was, in fact, tolled by said concealment and that appellee is now liable for any or all of the funds so received and so concealed. We do conclude, however, that the facts constituting concealment were sufficiently alleged to raise that issue and that other facts alleged were not sufficient to show that the case does not now fall within that exception to the statute. Therefore, the demurrer, grounded upon the statute of limitations, was erroneously sustained.