100 P. 354 | Idaho | 1909
John B; Coe brought this action on his own behalf and as administrator of the estate of George H. Coe, Jr., and they are appellants here. The action was brought against' Theodore A. Sloan, P. L. Williams and M. Ethlene Rounds, as defendants.
This action was commenced on August 24, 1907, to recover an undivided one-half interest in lots 10, 11 and 12 in block 39 of the original townsite of Boise City, Ada county. The following, among other facts, are stipulated by the respective parties as the facts of the ease:
That on and after and for some time prior to December 17, 1875, George H. Coe and N. T. Coe were husband and wife, and were the owners of and in the possession of said three town lots, together with lots 7, 8 and 9 of the same block; that title to said lots stood on the records of said county in the name of George H. Coe, but that said lots were acquired during the continuance of the marriage and were community property; that on said 17th day of December, said George B. Coe died intestate, leaving surviving him, his widow, N. T. Coe, and two sons, John B. Coe, one of the plaintiffs herein, and George H. Coe, Jr., the deceased brother of the plaintiff herein, who also died intestate; that the plaintiff was, at the date of the death of his father, five years of age, and the said George H. Coe, Jr., was at that time six years of age; that said George H. Coe, Jr., died on or about August 19, 1906, and that this plaintiff was by the superior court of Butte county, state of California, duly appointed administrator of the estate of his said deceased brother, and ever since has been and now is the duly appointed, qualified and acting administrator of said estate; that after the death of said George H. Coe, his widow, N. T. Coe, remained in the possession of said lots until June 27, 1876; that during said time the said lots were unimproved, uninelosed, wild land, covered only
The cause was submitted to the court upon the stipulated facts and the deeds and exhibits attached thereto. In the court’s finding of facts, it substantially found the facts as
Among other conclusions of law, the court made the following: “That any right, title or interest which plaintiffs, or either of them, may have had in or to the said lots, or any part thereof, either as heirs at law of said George H. Coe, Sr., deceased, or otherwise, is barred, lost and forfeited under the provisions of secs. 4036, 4037, 4040, 4041 and 4042, Rev. Codes of Idaho, and defendants are the owners, in fee simple, of said lots and of the whole thereof,” and entered judgment and decree to' the effect that plaintiffs take nothing by this action, and that the defendants have and recover from the plaintiffs their costs and disbursements. From that judgment this appeal is taken.
It is contended by counsel for appellant that the facts in this case establish a trust and that the defendants held the title to the lots in question as trustees, that the facts show constructive fraud, and that the court erred in finding as a conclusion of law from the facts that the conveyance from Mrs. N. T. Coe to Jeannette J. Isaacs did not create any trusteeship of said lots, and did not constitute said Isaacs or any of her
It is clear from the stipulated facts and the findings of the court that the “Widow Coe went into possession of said property as tenant in common with the plaintiff and his now deceased brother, George H. Coe, Jr., and although the deed from herself to Mrs. Isaacs purported on its face to convey the entire title to said lots to the latter, it did, in fact, convey to Mrs. Isaacs the legal title to only an undivided one-half interest in said lots. At the date of the death of Mrs. Coe’s husband, the title stood in his name, and under the law, as the law was at that time (8th Terr. Sess. Laws, p. 636), an undivided one-half interest in said property descended to her and the other one-half interest to his two sons, the appellants here. Therefore she had title to only an undivided one-half interest thereto. She could not and did not convey the other one-half interest to Mrs. Isaacs. Her deed, however, of the other one-half undivided interest gave color of title to the grantee to the whole of said property. (1 Am. & Eng. Ency. of Law, 2d ed., 852.) Mrs. Isaacs could not become trustee of the undivided one-half interest which descended to • the appellants, for she could not hold the land in trust, the title to which she did not have or hold. Under the facts stipulated, the only way that Mrs. Isaacs could have acquired a legal title to the one-half interest which belonged to the appellants was by adverse possession, or through probate court proceedings. An express trust, as well as an implied one, is repudiated by adverse possession and the statute of limitations begins to run from the time of such repudiation. (Nasholds v. McDonell, 6 Ida. 377, 55 Pac. 894.) The stipulated facts show that Mrs. Isaacs and her successors entered upon said property under claim of title to the whole thereof, basing such claim upon the respective deeds in writing and holding such property peaceably, openly, continuously and adversely to all the world, and paid all taxes thereon during the time they were in possession thereof. All of the elements of adverse possession are shown by the stipulated facts.
While it is stipulated that the appellants did not know of their interest in those lots until about a year before this suit was brought, that makes no difference, for they had t'he means of acquiring that knowledge, as the deed conveying the title to said lots to their father was of record during all that time in the office of the county recorder of Ada county, where said lots were situated. The means of acquiring this knowledge was. open to them, and, under the facts of this case, that places them in the same position as though they had such knowledge. When one by his own carelessness or
No constructive fraud appears from t'he stipulated facts, and no trust of any kind is shown.
The judgment of the lower court is affirmed, with costs in favor of respondent.