We have applied it in both legal and equitable actions. Faust v. Hosford, 119 Iowa 97, 93 N.W. 58; Pullan v. Struthers, 201 Iowa 1179, 207 N.W. 235; Ogg v. Robb, 181 Iowa 145, 162 N.W. 217, L.R.A. 1918C, 981; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264; Smith v. Middle States Utilities Co. of Delaware, 224 Iowa 151, 275 N.W. 158; City of Carroll v. Arts, 225 Iowa 487, 280 N.W. 869; Higbee v. Walsh, infra; and Cole v. Hartford Acc. Indem. Co., supra.
IV. The burden was on the plaintiff to establish facts which she claims avoids the statute of limitations. City of Carroll v. Arts, 225 Iowa 487, 489, 280 N.W. 869, and cases cited. This she has failed to do. The record is devoid of any evidence of any statements made by J.R. King which would have lulled the plaintiff from making an investigation relative to the recording of any instrument pertaining to the land in question.
covered or might have been discovered by the exercise of diligence. 54 C.J.S., Limitations of Actions, § 206 a, p. 219; 34 Am.Jur., Limitations of Actions, § 231, p. 188; Annotation, 173 A.L.R. 576; 31 Mich.L.Rev. p. 875 et seq. The rule applies to both legal and equitable actions. 54 C.J.S., Limitations of Actions, § 206 b, p. 221, including malpractice actions; Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633; Ogg v. Robb, 181 Iowa 145, 162 N.W. 217, L.R.A. 1918C, 981; and see Annotation, 74 A.L.R. 1317 and 144 A.L.R. 209. Nothwithstanding a statutory fraud exception identical to ours the Iowa court has long recognized and applied the doctrine of fraudulent concealment in both legal and equitable actions. District Tp. of Boomer v. French, 40 Iowa 601; Faust v. Hosford, 119 Iowa 97, 93 N.W. 58; Pullan v. Struthers, 201 Iowa 1179, 207 N.W. 235; Ogg v. Robb, supra; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264; Smith v. Middle States Utilities Co. of Delaware, 224 Iowa 151, 275 N.W. 158; City of Carroll v. Arts, 225 Iowa 487, 280 N.W. 869; Higbee v. Walsh, 229 Iowa 408, 294 N.W. 597; and Cole v. Hartford Accident Indemnity Co., 242 Iowa 416, 46 N.W.2d 811, among others. In the case of Roether v. National Union Fire Ins. Co., 51 N.D. 634, 200 N.W. 818, the North Dakota court discusses, but does not decide, the application of fraudulent concealment under a fraud statute similar to ours.
We held the petition which alleged the above matters was not subject to a demurrer that raised the statute of limitations. Among later decisions which have recognized the doctrine of fraudulent concealment are Pullan v. Struthers, 201 Iowa 1179, 207 N.W. 235; City of Pella v. Fowler, 215 Iowa 90, 94, 244 N.W. 734; Smith v. Middle States Utilities Co., 224 Iowa 151, 157, 275 N.W. 158, 162; City of Carroll v. Arts, 225 Iowa 487, 489, 280 N.W. 869; Higbee v. Walsh, supra, 229 Iowa 408, 421, 294 N.W. 597. Plaintiff here relies upon the rule of these cases in an attempt to avoid the bar of the statute of limitations. Unless it appears, as plaintiff contends, defendant fraudulently concealed from plaintiff the cause of action asserted in Count II and that plaintiff exercised diligence to discover the same, the cause accrued when the claimed fraud was committed and the action was barred when commenced more than five years later.
It has been repeatedly held that the statute cannot be avoided if the party seeking relief (in this case the corporation) had such knowledge or notice as would lead one of reasonable prudence to make inquiries which would have disclosed the wrong. Van Wechel v. Van Wechel, 178 Iowa 491, 496, 159 N.W. 1039; Conklin v. Towne, 204 Iowa 916, 920, 216 N.W. 264; Murphy v. Hahn, 208 Iowa 698, 704, 223 N.W. 756; McGrath v. Dougherty, 224 Iowa 216, 223, 275 N.W. 466; City of Carroll v. Arts, 225 Iowa 487, 489, 280 N.W. 869. I do not think that the statute was successfully avoided. The trial court held that McNider was guilty of no actual fraud.
We think, however, that even in a case of fraudulent concealment under facts such as we have in the present case, the burden would not be upon the defendant, but rather upon the plaintiff to establish the avoidance of the statute of limitations, and that mere silence would not constitute fraudulent concealment except on a showing of fiduciary relationship. See Van Wechel v. Van Wechel, 178 Iowa 491, 159 N.W. 1039; Gamet v. Haas, 165 Iowa 565, 146 N.W. 465; Conklin v. Towne, 204 Iowa 916, 216 N.W. 264; City of Carroll v. Arts, 225 Iowa 487, 280 N.W. 869, and cases therein cited; McGrath v. Dougherty, 224 Iowa 216, 275 N.W. 466; Hodgson v. Keppel, 211 Iowa 795, 804, 232 N.W. 725, 728. The case of Conklin v. Towne, supra, involved the alleged fraudulent sale of stock, where, to avoid the plea of the statute of limitations, there was a charge of fraudulent concealment.