James v. James

• Decision Date: 07 April 1924
• Docket Number: 10579.
• Citation: 75 Colo. 164,225 P. 208
• Parties: JAMES et al. v. JAMES.
• Court: Colorado Supreme Court

225 P. 208

75 Colo. 164

JAMES et al. v. JAMES.

No. 10579.

Supreme Court of Colorado

April 7, 1924

Department 1.

Error to District Court, Moffat County; Gilbert A. Walker, Judge.

Action by Edgar James and others against William H. James. Judgment for defendant, and plaintiffs bring error.

Reversed and remanded for further proceedings.

John T. Bottom, of Denver, and W. B. Wiley, of Craig, for plaintiffs in error.

Frank Delaney, of Glenwood Springs, and Ernest Morris, of Denver for defendant in error.

ALLEN J.

This is a suit brought by certain heirs of Thomas E. James, deceased principally to set aside certain transfers of real and personal property made, or attempted to be made, by the decedent in his lifetime to the defendant, William H. James. There was a judgment on the pleadings in favor of defendant. The plaintiffs bring the cause here for review.

The trial court held that each cause of action set forth in the complaint was barred by some one or the other of the statutes of limitations pleaded in the answer. The correctness of this ruling is the ultimate question to be determined.

The complaint was filed July 15, 1920. The deeds to the real property were made and recorded about or prior to May 16, 1912. The bill of sale transferring the personal property to defendant was executed on February 27, 1913. Thomas E. James, the grantor and transferor, died May 10, 1913. It is sought to set aside these deeds and the bill of sale on the ground that they were obtained by defendant by undue influence exerted upon the grantor, and were executed while the grantor and transferor was mentally incompetent. The plaintiffs are the heirs of Thomas E. James. As such heirs they bring this suit to set aside the conveyances and transfers of property by Thomas E. James, who died intestate, his will being void and so adjudged in litigation terminating with our decision in James v. James, 64 Colo. 133, 170 P. 385.

At the outset it becomes necessary to determine some questions relative to the applicability of particular statutes of limitation.

Undue influence is classed as a species of fraud. 26 C.J. 1060. A charge of undue influence is substantially that of fraud. Clough v. Clough, 10 Colo.App. 433, 51 P. 513. If the defendant obtained the transfers by exerting undue influence over the grantor, and the transfers were due to no other cause, the statute of limitations which would apply would be section 6403, C. L. 1921, which is:

'Bills for relief, on the ground of fraud, shall be filed within three years after the discovery by the aggrieved party, of the facts constituting such fraud, and not afterwards.'

It is alleged that the grantor was of unsound mind and memory, and that the defendant took advantage of the grantor's enfeebled condition in obtaining the conveyances. This is charging the defendant, if not with actual fraud, with constructive fraud. 26 C.J. 1061. In Pipe v. Smith, 5 Colo. 146, 157, it was said that 'although the fraud charged is constructive, it is within the statute.'

According to some of the allegations contained in the complaint, it is sought to enforce a constructive trust, arising because the defendant has acquired property under circumstances which make it inequitable that it should be retained by him. 39 Cyc. 169. The statute of limitations applicable in a suit to enforce a trust, constructive or otherwise, is section 6404, C. L. 1921, which reads as follows:

'Bills of relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within five years after the cause thereof shall accrue, and not after.'

The plaintiffs in error contend that, as to the causes of action in the instant case, which involve the cancellation of the deeds to real estate, the statute of limitations which applies is the 20-year statute (section 6418, C. L. 1921), reading as follows:

'That no person shall commence an action for the recovery of lands, or make an entry thereon, unless within twenty years after the right to bring such action or make such entry first accrued, or within twenty years after he or those from, by or under whom he claims, have been seized or possessed of the premises, except as hereinafter provided.'

There is no decision in this state which would dispose of this contention. In other jurisdictions there is a conflict of opinion as to whether an action for the cancellation of deeds is one for the recovery of real property. 9 C.J. 1204, § 85. We are of the opinion that the twenty year statute is not applicable, and that suits to cancel deeds are not 'for the recovery of lands,' within the meaning of the 20-year statute of limitations. In Mexican Nat. Coal, T. & L. Co. v. Frank (C. C.) 154 F. 217, 235, it was said that----

'A suit is not necessarily one 'for recovery of real estate,' because such recovery will follow as an incident to the plaintiff's success.'

It becomes necessary to determine when the causes of action involving the conveyances and transfers above mentioned accrued. If, as defendant claims, they accrued at the time of the death of Thomas E. James, then the judgment below is right, since the suit was brought more than 7 years after such time. But the plaintiffs contend that the causes of action could not have accrued at that time, because the decedent, Thomas E. James, left a will which was offered for probate and which was not adjudged to be invalid until some time afterwards. This will was executed on February 27 1913. If the same had been adjudged valid, the plaintiffs herein would take thereunder none of the property involved in this suit. In that will the testator referred to the conveyances of real estate which are now involved in the instant case, and confirmed the same. The will further provided that if for any reason the deeds shall be defective in form or insufficient to convey the property therein described, or any part thereof, or any part of the testator's ranches...