This is an appeal from a judgment of paternity. The facts are undisputed. The parties to this appeal were never married. Appellant, George R. Knutson, Jr., met respondent, Armedia Susedik, in September, 1962, when she was working as a waitress at Fairchild. The couple frequently dated and began having sexual relations in late September or early October, 1962. The couple had sexual intercourse in each of the last three months of 1962. In December respondent learned she was pregnant. In January, 1963, the parties informed their friends that they had been married on December 15, 1962. Also, that month the couple had a party celebrating their "marriage." On August 5, 1963, a child, James Jeffrey, was born to respondent. The child was baptized as the son of a married couple. Immediately following the birth of James Jeffrey, "Mrs. Knutson," on the urging of appellant, underwent a salpingectomy to prevent additional pregnancies. Appellant signed the required consent as respondent's husband.

Beginning in January, 1963, the couple lived together at Fairchild as husband and wife. They continued to live together as husband and wife after the child was born and later on moved as a family to rural Trempealeau county. Appellant supported the family; the parties spoke frequently of marriage during the period and respondent believed that they were going to be married. During the period from December, 1962, until May, 1969, the appellant repeatedly told the respondent that there was nothing wrong with the way things were being carried out and that they would eventually be married. The parties filed joint income taxes, bought real estate in joint tenancy as husband and wife, and generally represented themselves as "Mr. and Mrs. George Knutson."

In June, 1969, appellant moved out of the home and stopped supporting James Jeffrey and respondent. In September, 1969, this action was brought pursuant to sec. 52.05, Stats., in the county court of Trempealeau alleging that appellant was the father of James Jeffrey.

Appellant moved to dismiss the action, asserting that the suit was barred by the five-year statute of limitations, sec. 893.195, Stats. The county court, Hon. ALBERT L. TWESME presiding, following the trial to a jury denied the motion, finding that the appellant was estopped from asserting the statute of limitations. Appellant was found by the jury to be the father of James Jeffrey, and judgment of paternity was entered and support payments ordered. The putative father appeals.

WILKIE, J.

There is no dispute about the facts nor is there any question but that the five-year statute of limitations as set by sec. 893.195 had run prior to the commencement of this action. Hence the only issue on this appeal is whether the trial court was correct in finding that appellant is estopped from asserting the statute of limitations as a defense to this paternity suit. We agree with the trial court.

True, in the 1905 case of Pietsch v. Milbrath this court decided that estoppel could never be asserted to preclude a defense based on the statute of limitations. But, in 1960 in Peters v. Kell this court specifically overruled Pietsch on this precise issue, finding, however, that under the facts of that case the aggrieved party had not relied to his injury upon the fraudulent conduct and thus could not assert estoppel. Since Peters this court has never found an estoppel in pais to preclude the assertion of the statute of limitations. In fact, the only case in which this court has found such estoppel is Estate of Mohr in 1933, in which Pietsch was not cited.

In Peters this court held that in the proper case a defendant would be estopped from asserting the statute of limitations because of his fraudulent conduct. The court relied upon annotations in 130 A.L.R. 8 and 24 A.L.R. 2d 1413. It is difficult to imagine a more compelling and appropriate case than the present appeal to apply the doctrine of estoppel in pais to preclude the defense of the statute of limitations.

The cited annotations enumerate the rules to be applied when determining whether the defendant should be estopped from asserting the statute of limitations. A review of these rules demonstrates the propriety of the doctrine in this case:

1. The doctrine of estoppel in pais may be applied to preclude a defendant who has been guilty of fraudulent or inequitable conduct from asserting the statute of limitations.

Here the appellant lived with James Jeffrey and his mother for almost six years after the child's birth. He then left and stopped supporting the child. Such conduct is plainly inequitable both to James Jeffrey and his mother as well as to the people of the state who may be forced to support the boy should his father refuse.

2. The aggrieved party must have relied on the representation or acts of the defendant, and as a result of such reliance failed to commence action within the statutory period.

A paternity action was not brought prior to the running of the statute because respondent believed that appellant would marry her and because he was supporting James Jeffrey all along. It was because of the representations of appellant and his supporting the child that no action was brought until he abandoned them.

3. The acts, promises or representations must have occurred before the expiration of the limitation period.

The child was born in August, 1963, and the statute thus ran in August, 1968. Throughout this period appellant continually conducted himself in such a manner so as to make respondent believe he would marry her and continue to support the child.

4. After the inducement for delay has ceased to operate the aggrieved party may not unreasonably delay.

Appellant left the family in June, 1969, and this action was commenced in September, 1969. There was no unreasonable delay.

5. Affirmative conduct of defendant may be equivalent to a representation upon which the plaintiff may to her disadvantage rely.

As noted above, appellant conducted himself in two ways so as to induce respondent not to file this suit. He reassured her of marriage, and he supported the child until May, 1969.

6. Actual fraud, in a technical sense, is not required to find estoppel in pais.

The record in the present appeal reveals an outrageous situation. Here a man lived with a woman for almost seven years. He fathered her child and made an extraordinary attempt to appear to be married. He made numerous representations to respondent of the possibility of marriage. On the basis of this record we have no hesitation in finding appellant's conduct bars him from asserting the statute of limitation. The appellant has an obligation to the child he fathered. It is precisely for situations such as the present case that the exception to the doctrine of limitations of actions was carved out. Public policy requires it. Whether appellant's conduct constitutes fraud in a technical sense is not the issue. The issue is whether the conduct and representations of appellant were so unfair and misleading as to outbalance the public's interest in setting a limitation on bringing actions. The circuit court found that appellant was estopped, and this conclusion is manifestly correct under the circumstances.

In oral argument counsel for appellant raised a new argument that a party could never be estopped from asserting the statute of limitations in a paternity action because the cause of action was created by statute and did not exist at common law. Reliance is placed on Gauthier v. Atchison, T. S. F. Ry. as well as sec. 4 of the A.L.R. 2d annotation. The Gauthier Case is not authority for the proposition that an action must have existed at common law in order for estoppel in pais to bar an assertion of the statute of limitations. That case was merely interpreting the federal Employers' Liability Act consistently with the decisions of the Supreme Court of the United States. Moreover, in Gauthier and the cases cited in A.L.R., the rule applied is that when the statute creates both the right and the limitation, estoppel cannot be asserted. In the present case the limitation applied is not part of the statute creating the right, rather it is part of the general section of the statutes stating limitations upon actions.

By the Court. — Judgment affirmed.