Ames v. Howes

• Decision Date: 20 December 1907
• Citation: 13 Idaho 756,93 P. 35
• Parties: HETTIE E. AMES, Appellant, v. STEPHEN B. HOWES, Respondent
• Court: Idaho Supreme Court

93 P. 35

13 Idaho 756

HETTIE E. AMES, Appellant, v. STEPHEN B. HOWES, Respondent

Supreme Court of Idaho

December 20, 1907

COMPLAINT-DEMURRER-CAUSE OF ACTION-STATUTE OF LIMITATIONS-TRUSTS-EXPRESS AND IMPLIED-AMENDMENT OF COMPLAINT-TENANTS IN COMMON-OUSTER-ADVERSE POSSESSION-REAL ESTATE-DEED-NOTICE OF.

1. Held, that the demurrer to the complaint was properly sustained.

2. The trust alleged in the complaint is an implied trust, or one arising from an implication of law, and was not an express trust created by the direct and positive acts of the parties.

3. Express trusts are not within the operation of the statute of limitations, but trusts which arise from an implication of law or constructive trusts are within the operation of the statute of limitations. (Revised Statutes, sec. 4036.)

4. Where one cotenant takes a deed conveying to him a part of the real estate owned by said cotenants and records said deed in the proper office, such recordation is notice of the cotenant's claim to such real estate.

(Syllabus by the court.)

APPEAL from the District Court of First Judicial District for Bonner County. Hon. W. W. Woods, Judge.

Action to recover an interest in certain mining claims. Demurrer to complaint sustained and judgment of dismissal entered. Affirmed.

Judgment affirmed, with costs in favor of respondent.

R. E McFarland, for Appellant.

Before a tenant in common can rely on an ouster of his cotenants, he must claim the entire title to the land to himself and must hold an exclusive and adverse possession against every other person. (Schoonover v. Tyner et al., 72 Kan. 475, 84 P. 124; Clark v. Beard, 59 W.Va. 669, 53 S.E. 597; Chapman v. Kullman, 191 Mo. 237, 89 S.W. 924.)

The complaint shows that Ames held an undivided one-fourth interest, which was never held or claimed by Howes, and it does not show that Howes ever ousted Ames or held the entire property adverse to him, and the presumption is, in the absence of evidence to the contrary, that if Howes and not Ames remained in possession, he held possession for his cotenant as well as for himself, in which case the statute of limitations cannot be successfully pleaded in bar. (Hume et al. v. Long et al., 53 Iowa 299, 5 N.W. 193.)

Under the facts of this case the said Howes became trustee of an express trust, and the statute of limitations did not begin to run till the second day of May, 1906, when the appellant made demand upon him to convey the one-fourth interest to her and he refused so to do and laid claim to the property. (Wood on Limitations of Actions, 3d ed., sec. 200; McClure v Colyear, 80 Cal. 378, 22 P. 175; Roach v. Caraffa et al., 77 Cal. 330, 19 P. 25; Broder et al. v. Conklin et al., 77 Cal. 330, 19 P. 513; Luco v. DeToro, 91 Cal. 405, 27 P. 1082; Hovey v. Bradbury, 112 Cal. 620, 44 P. 1077.)

Charles L. Heitman, for Respondent.

"The possession of one tenant asserting an exclusive right to the land under a deed conveying the land to him by specific description is adverse to his cotenant having notice of the deed. The registration of a deed under which a tenant in common claims exclusive right to the land is notice thereof to his cotenant." (Puckett v. McDaniel, 8 Tex Civ. App. 636, 28 S.W. 360, and cases and authorities cited; Winterburn v. Chambers, 91 Cal. 171, 27 P. 658; Burgett v. Taliaferro, 118 Ill. 503, 9 N.E. 334; Greenhill v. Biggs, 85 Ky. 155, 7 Am. St. Rep. 579, 2 S.W. 774; Mayes v. Manning, 73 Tex. 43, 11 S.W. 137; Church v. Waggoner, 78 Tex. 200, 14 S.W. 581.)

The statute of limitations applies between tenants in common where one holds under mere color of title. (Aldrich v. Griffith, 66 Vt. 390, 29 A. 376.)

"Express trusts are created by contracts and agreements which directly and expressly point out the persons, property, and purposes of the trust. Implied trusts are those which the law implies from the language of the contract and the evident intent and purpose of the parties." (Wilson v. Welles, 79 Minn. 53, 81 N.W. 549; Perry on Trusts, secs. 24, 25; 15 Am. & Eng. Ency. of Law, 2d ed., 1123; 8 Words and Phrases, p. 7121.)

There is not the slightest intimation in either of the complaints that there was any agreement between respondent and Ames that respondent should hold the one-fourth undivided interest in said properties, in controversy herein, in trust for Ames.

The complaint showed that the cause of action was barred by the statute of limitations, and that being the case, the point was properly raised by demurrer. (Chemung Min. Co. v. Hanley, 9 Idaho 786, 77 P. 226.)

SULLIVAN, J. Ailshie, C. J., concurs.

OPINION

SULLIVAN, J.

This action was commenced by the appellant to recover the title to certain mining claims. The action was brought in Kootenai county prior to the creation of Bonner county out of a portion of Kootenai, and this action was transferred to Bonner county. It appears from the allegations of the amended complaint that the husband of the appellant and the respondent became joint and equal owners of certain mining claims, they having discovered and located the same in 1897; that on the fourth day of September, 1899, while they were joint and equal owners of said mining claims, a corporation known as the Grand Copper Mining Company was organized under the laws of the state of Washington, and it is alleged that by fraud and deceit, and through fraudulent promises and representations, and without any consideration therefor, it induced said Ames and Howes to transfer by deed a three-fourths interest in and to said mining claims to said corporation; that thereafter, on the third day of April, 1900, the said Ames and Howes commenced an action in the district court of the first judicial district in and for Kootenai county against said corporation to recover the title to said properties and to require said corporation to reconvey to them the mining interests so conveyed as aforesaid; that thereafter on the twenty-seventh day of April, 1900, a judgment and decree was entered in favor of respondents, requiring the said corporation to reconvey to them said interests in said mining claims; that thereafter, on the twelfth day of June, 1900, the said corporation, pretending to comply with the requirements of said judgment, executed and delivered to said Howes a quitclaim deed conveying to him an undivided three-fourths interest in and to all of said mining claims, which deed was on the twentieth day of June, 1900, filed for record in the recorder's office of said county; and that said corporation executed and delivered to said Ames a quitclaim deed conveying to him an undivided one-fourth interest in and to said mining claims, which quitclaim deed was on the twentieth day of June, 1900, duly recorded in the office of the county recorder of said county; that at all of said times said Ames owned and was entitled to an undivided one-half interest in and to said mining properties, and the said Howes was entitled to and owned only an undivided one-half interest in and to said mining claims; that by the deed of conveyance conveying to said corporation the said mining claims the said Howes pretended to convey to said corporation a three-fourths interest therein, but that he only owned an undivided one-half interest in said mining properties, and has never at any time owned any greater interest than one-half thereof; that at the time said deeds were executed by Ames and Howes to said corporation, there remained to the said Ames an undivided and undisposed of one-fourth interest in and to all of said properties, and that said quitclaim deed from the said corporation to the said Howes, which pretended and purported to convey to said Howes a three-fourths interest in said mining claims, in fact and in truth conveyed to said Howes only an undivided one-half interest, and that if it should be held by the court that said deed from said corporation conveyed to said Howes a three-fourths interest in said claims, then one-third of said interest so conveyed belonged to, and should have been conveyed to, the said Ames, and that the said Howes has held that interest in trust for Ames.

It is further alleged that on August 13, 1904, the said Ames died intestate, leaving no heirs except his said wife, Hettie E. Ames, the appellant, and that he left no estate except his said interest in said mining claims, and that he at the time of his death left no unpaid debts. It is further alleged that said deed of said corporation conveying a three-fourths interest in said claims to Howes creates a cloud upon the title of the plaintiff as heir at law of said Ames, deceased, in and to the said undivided one-fourth interest in said mining claims.

It is further alleged that on the second day of May, 1906, at Kootenai county, plaintiff made written demand upon defendant to convey to her as sole surviving heir at law of said Ames, deceased, the said one-fourth interest in and to said mining properties, but that said defendant for the first time then and there laid claim thereto and refused and still refuses to convey to her said one-fourth interest. The prayer is that plaintiff be decreed to be entitled to an undivided one-fourth interest in and to said mining claims, and that Howes be compelled to convey to her by good and sufficient deed, said interest, and that said Howes held said one-fourth interest as trustee for Ames, and now holds the same in trust for the plaintiff, and that said deed from the mining company be so reformed as to convey to said Howes only one-half interest in said claims, and that the cloud created by said deed to said one-fourth interest be removed and that the title to the same be quieted.

It will be observed that the complaint is drawn upon and proceeds upon the theory that Howes holds the title to said...