Dissenting Opinion on Petition for Rehearing
Kelley, J.A careful review of our initial opinion in this case, and the indulgence of sober reflection and intensive research have convinced me that this appeal should be reconsidered and the judgment appealed from affirmed.
The real and only question we decided is stated in the next to last paragraph of the opinion. I am now impressed that we failed to confine our opinion to the question decided, that we erroneously decided the same, and that we went far afield in the presentment of our reasons therefor.
It appears to me that we ventured opinions on sub*417jects and matters unrelated to and not required for the conclusion reached. They include:
(a) . That notwithstanding the rule established in the case of City of Hammond v. Welsh (1946), 224 Ind. 349, 67 N. E. 2d 390, the statute of limitations did not start to run until appellee received payments from assessed property owners and refused appellant’s alleged demand for payment thereof.
(b) . That so long as assessments remain unpaid there is no time limitation to the liability of municipalities on improvement bonds and coupons issued by them.
(c) . That the liability of assessed property owners is subject to the ten year statute of limitation.
(d) . That the provisions of §48-4404, Burns’ 1950 Replacement, make it the duty of the City Treasurer to notify the bondholder of available funds if a request therefor was made by the bondholder. The complaint contains no allegation of such request by appellant.
(e) . That where it is alleged that the City Treasurer had received assessment payments prior to the due date of the improvement bonds, the stamping of such bonds “Not paid for want of funds” by the Treasurer on the due date thereof, rendered the appellee guilty of constructive fraud which tolled the running of the statute of limitations.
(f) . That as the appellee made no motion in the lower court to make appellant’s complaint more,specific, the contention of the appellee that the complaint is bad because it is indefinite and uncertain cannot prevail.
The consideration and rendition of opinion on such aforementioned matters, which appear unessential to the question actually decided, seems fraught with grave possibility of confusion, misinterpretation, and legal uncertainty.
*418The main opinion states, in effect, that the demurrer to appellant’s complaint was improperly sustained because such complaint does not show on its face “that it does not fall within any of the exceptions to the statute.” Upon reexamination of the opinion, I am unable to find any exceptions referred to that did not appear on the face of the complaint. Two sections of our statutes were cited and quoted, apparently on the basis that they constituted exceptions to the running of the limitation statute which appear not on the face of the complaint. They are §48-4404 and §48-4405, Burns’ ■1950 Replacement.
Said §48-4404 provides for the stamping of the presented bonds and coupons. Appellant’s complaint alleges this was done. The latter part of said section provides that “upon request” of bondholders, notice shall be sent them when funds are available. Appellant’s complaint contains no allegation that he made such “request.”
Said §48-4405 also provides for the stamping of the bonds and coupons and appellant’s complaint shows this was done.
In my opinion neither of said statutes provides any matter which can be considered to have any influence or bearing on the running of the statute of limitations or which forms an exception thereto.
It may be asserted that the constructive fraud. charged to appellee in the main opinion constituted an exception to the limitation statute not apparent in the complaint. However, the facts which gave rise to the declaration of constructive fraud were, in fact, alleged in the complaint. Therefore, it would be most difficult to maintain that such asserted exception did not appear on the face of the complaint.
If it be conceded that the constructive fraud charged to appellee does not appear on the face of the complaint, *419yet, in my opinion, such charge against appellee is unjustified and erroneous. The reasons which impel my view are these:
(1) . The relationship between the appellee and appellant is that of debtor and creditor, and no position of trust or confidence is involved. No facts are alleged to show a breach of any legal or equitable duty or a preconceived design to cheat or deceive.
(2) . The presentment by appellant of his bonds and coupons and his procurement of payments thereon on December 29, 1939, January 27, 1942, and September 25, 1942, are' incompatible with and in contradiction of any theory of concealment by appellee.
(3) . Appellant had equal means with appellee of knowledge concerning assessment money received by appellee since the public records required by law were available to both. It follows that information concerning payments of assessments could not have been concealed from appellant by appellee, unless appellant did not take the time to inform himself. The holding in the Welsh case, supra, does not counter this. In that case the court was not considering facts which would support a charge of constructive fraud. The court, in considering the rule of “estoppel by acquiescence,” where the urged acquiescence was of many and complicated accounts over a period of 15 years, held that a citizen cannot “reasonably” be required to go behind the acts of a responsible “bonded” public officer and check his books and accounts to “determine the validity” of a “proposed transaction.” Such is not this case. It would have been a simple matter for appellant to have examined one record, that is, the account record of payments received on the one assessment laid for the payment of the series of bonds held by appellant.
(4) . There appear no averments in the complaint and no finding in our opinion that the appellee practiced *420any trick, artifice, or other act which prevented appellant from ascertaining the truth about assessment money paid to appellee.
(5). The statutes (§48-4404 and §48-4405, Burns’ 1950 Replacement), contain no matter warranting an interpretation that the stamping of bonds and coupons, as therein required, constitute any representation sufficient to support a charge of concealment. The language of §48-4404 reflects that the purpose of the stamp therein required was to obviate error and duplicate payments by making a record on the original bonds and coupons. It is noted that the stamp must show the date of presentation and whether the obligations were paid or not paid. Upon subsequent presentment for payment, this information is available to,the officer from the bond and coupon itself. §48-4405 requires a stamp in order to authorize the payment of interest and fix the time from which such interest can be computed and paid on matured bonds and coupons issued prior to March 16, 1929.
It is my opinion that the complaint under examination herein fails to state a cause of action against the appellee without reference to any question concerning exceptions to the limitation statute which are not apparent on the face of the complaint. The action undertaken to be stated in this complaint is predicated solely upon the claim that appellee is liable on the improvement bonds and coupons sued upon. The allegations admit of recovery upon no other theory.
According to the complaint, the bonds became due December 1, 1933. The complaint was filed February 1, 1946. Under the rule established in the Welsh case, supra, any liability of appellee on said bonds and coupons ceased and .determined on December 1, 1943, and the right of action on such bonds and coupons simul*421taneously expired. This rule is forcibly stated in the Welsh case referred to. The court, in that case, on page 352 of the official reports, was referring to the liability of the City of Hammond for misapplied collections, under the principles and rules found in Read v. Beczkiewicz (1939), 215 Ind. 365, 18 N. E. 2d 789, and said:
“. . . the City is liable to the holders of the bonds which were entitled thereto, unless recovery is barred ... by some statute of limitation
The court then proceeds, in the second paragraph following the above quoted portion, to hold that the ten year statute of limitations applied and that the bonds which fell due ten years before the action was started were barred. In short, the court definitely holds that the city is liable to “holders of the bonds” unless the bonds are barred. It is important to compare the factual situation in that case, as regards the running of the statute, with the holding in our opinion with regard to the running of the statute. In the Welsh case, the first bonds fell due December 1, 1927 and the last bonds fell due December 1, 1936. During that period of ten years, the treasurer made payments “from time to time” on the wrong series of bonds with the result the plaintiffs’ bonds were not liquidated as provided by the Barrett law. Yet, the court did not hold that such misapplications “from time to time” had the effect of tolling the statute or setting the time when it began to run. Without regard to the time of such misapplications the court held that the statute runs from the due date of the bonds. In our opinion, we hold that the statute did not begin to run “until after” the appellee “received payments” on the assessments and “refused” appellant’s demand for payment. (See Pt. *4224 of the main opinion.) Thus, it seems to me, we directly contravene and alter the rule laid 'down by the Supreme Court in the Welsh case.
Assuming, without concluding, that the facts stated in the complaint are sufficient to demonstrate a liability of appellee, such liability is not on the bonds and coupons. No action on such bonds and coupons, can be, in my opinion, properly maintained after December 1, 1943. The right, if any, of appellant to proceed for recovery upon some other theory merits no consideration on this appeal.
The pronouncements made in our initial opinion render the municipalities of this state, which have issued improvement bonds, subject to liability, assertion of liability, demands, complexities, harassment, and litigation thereon without limit, ad infinitum. Infinitum in jure reprobatur. I cannot find my way clear to further support that doctrine.
The conviction weighs upon me that the ruling of the trial court was proper and that the judgment should be affirmed.
NOTE. — Reported in 114 N. E. 2d 813.
Rehearing denied 116 N. E. 2d 515.