It is generally held that a defense based on a statute of limitations is waived unless it is pleaded or presented to the trial court in some fashion. ( Bliss v. Sneath, 119 Cal. 526, 528 [51 P. 848]; Taylor v. Sanford, 203 Cal.App.2d 330, 345 [ 21 Cal.Rptr. 697].) The state contends, however, that after the reversal on the first appeal in this court, the posture of the case was as if it had not been tried, and the state could amend its pleadings in the discretion of the trial court.
It is immaterial that the wife has brought no action to avoid plaintiff's deed but invokes section 172a as defendant in a quiet title suit, for statutes of limitation, although commonly phrased in terms restricting only the commencement of actions (Cal. Code Civ. Proc. sec. 335 et seq.), apply to causes of action raised by the defendant. ( Hermosa Beach etc. Co. v. Law Credit Co., 175 Cal. 493 [ 166 P. 22]; Bradbury v. Higginson, 167 Cal. 553 [ 140 P. 254]; Union Sugar Co. v. Hollister [Estate Co.], 3 Cal.2d 740 [ 47 P.2d 273]; Bliss v. Sneath, 119 Cal. 526 [51 P. 848].) "A title which will not sustain a declaration will not sustain a plea."
Defendant did not plead section 361 of the California Code of Civil Procedure nor the Illinois statute of limitations applicable thereunder. (See Biewend v. Biewend, 17 Cal.2d 108, 114-117 [ 109 P.2d 701, 132 A.L.R. 1264]; Bliss v. Sneath, 119 Cal. 526, 527-529 [51 P. 848].) Defendant acknowledges the settled rule that when a wife has secured a judgment of separate maintenance in the state of her domicile, her right to support thereunder will survive a subsequent valid, ex parte, foreign decree of divorce secured by her husband if the law of her domicile so provides.
It has been held generally or assumed without discussion that a counterclaim in its setoff aspects may be defeated by the defense of the statute of limitation. ( Bliss v. Sneath, 119 Cal. 526 [51 P. 848]; Lyon v. Petty, 65 Cal. 322 [4 P. 103]; Curtiss v. Sprague, 49 Cal. 301; Griffin v. Porter, 54 Cal.App.2d 254 [ 128 P.2d 820]; Estate of Clifford, 16 Cal.App.2d 123 [ 60 P.2d 302]; Andrade v. Azevedo, 9 Cal.App.2d 495 [ 50 P.2d 80]; Murphy v. Davids, 55 Cal.App. 416 [ 203 P. 802]; see Estateof Cates, 195 Cal. 319 [ 232 P. 972]; In re Smith, 108 Cal. 115 [40 P. 1037]; Estate of Schaeffer, 53 Cal.App. 493 [ 200 P. 508]; 73 A.L.R. 574; 16 A.L.R. 326.) On the other hand it has been intimated that where claims are compensated under section 440 of the Code of Civil Procedure the statute of limitations is not a bar.
) [2] However, it has been held that unless the adverse party invokes the plea of the statute at the trial, and brings to the attention of the trial court his purpose to offer evidence in support of such plea, the court cannot assume that he desires to make any such defense, and he cannot invoke the plea for the first time on appeal. ( Estate of Garcelon, supra; Bliss v. Smith, 119 Cal. 526 [51 P. 848].) Herein appellant invoked the plea at the trial and the trial court made a finding on the plea thus presented.
It is conceded that it was not so barred when the original action was begun, and the authorities in this state seem to be agreed that if the right of action relied on was alive at the commencement of the suit the statute does not run against it, when, as in this case, the full statutory period has expired thereafter during the pendency of the action and before the claim is pleaded as a cross-complaint. ( Lyon v. Petty, 65 Cal. 322 [4 P. 103]; Perkins v. West Coast Lumber Co., 120 Cal. 27 [52 P. 118]; McDougald v. Hulet, 132 Cal. 154 [ 64 P. 278]; Bliss v. Sneath, 103 Cal. 43 [36 P. 1029], 119 Cal. 526 [51 P. 848]; Maryland Casualty Co. v. Shafer et al. 57 Cal.App. 573, [ 208 P. 197].) The same rule is stated in 24 R. C. L., section 43, as declarative of the common law, as follows:
Undoubtedly, the bar of the statute of limitations should have been set up by a demurrer calling attention to the proper section of the code. ( Bliss v. Sneath, 119 Cal. 526, [51 P. 848]; California SafeDeposit Trust Co. v. Sierra etc. Co., 158 Cal. 690, 698, [Ann. Cas. 1912A, 729, 112 P. 274]; Murphy v. Stelling, 8 Cal.App. 702, [ 97 P. 672].
A demurrer merely stating that there is a want of facts will not suffice. (Brown v. Martin, 25 Cal. 82; Bliss v. Sneath, 119 Cal. 526, [51 P. 848].) Accordingly, there has grown up a practice, difficult, perhaps, to defend on logical grounds, of permitting a defendant to demur to a complaint on the ground that "it fails to state facts sufficient to constitute a cause of action, in this, that the alleged cause of action appears to be barred by the provisions of . . ."
Such is not the rule in this state, where such statutes are regarded as statutes of repose, carrying with them, not a right protected under the rule of public policy, but a mere personal right for the benefit of the individual, which may be waived. (Ellis v. Massachusettsetc. Ins. Co., 113 Cal. 612, [54 Am. St. Rep. 373, 45 P. 988]; Civ. Code, sec. 3513; Bliss v. Sneath, 119 Cal. 526, [51 P. 848]; Wells Fargo Co. v. Enright, 127 Cal. 669, [ 60 P. 439]; State Loan Co. v. Cochran, 130 Cal. 245, [ 62 P. 466, 600].) We are unable to perceive that any distinction can be made upon the ground of public policy between the right of a party to waive the plea of the statute of limitations as a defense to an action, and his right to waive a portion of the time granted by the statute for the commencement of an action.
It is well settled that a failure to find upon some issue made by the answer, a finding upon which would merely have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, unless it is shown by statement or bill of exceptions that evidence was submitted in relation to such issue. (See Roberts v. Hall, 147 Cal. 434, 439, [ 82 P. 66]; Winslow v. Gohransen, 88 Cal. 450, [26 P. 504]; Himmelman v. Henry, 84 Cal. 104, [23 P. 1098]; Marchant v. Hayes, 117 Cal. 669, 672, [49 P. 840]; Bliss v. Sneath, 119 Cal. 526, 529, [51 P. 848]; Rogers v. Duff, 97 Cal. 63, 69, [31 P. 836].) The judgment is affirmed.