78 P. 365 | Utah | 1904
A rehearing was granted in this ease, and its reconsideration confined solely, to the question as to whether defendant’s plea, in his answer, of the statute of limitations, is a bar to (the action.
After again carefully reviewing the record, the. exhaustive and able brief filed by respondent for a rehearing, and the authorities therein cited, we are satisfied that the result reached in our former decision in this case (Felkner v. Dooly, 27 Utah 350, 75 Pac. 854) must be modified. While we adhere to the doctrines announced in that opinion, we are satisfied that the facts do not bring the entire case within the rules therein declared.
By an examination of the case of Hamilton v. Dooly, 15 Utah 280, 49 Pac. 769, and the former opinion in this case (Felkner v. Dooly, 27 Utah 350, 75 Pac. 854), it will be seen that in the year 1885 certain proceedings were commenced in Idaho by seventeen lien claimants to foreclose their liens on the Charles Dickens property for wages, in which ease Dooly was made a party defendant, and in each case he answered, setting up his claim to the property by virtue of his mortgage. In due time a 'decree was entered foreclosing the mechanics’ liens and the mortgages held by MeComick and Dooly. A sale was made in accordance with the decree of the court, and the property bought by R. C. Chambers, who acted as the agent of McOomick and Dooly.
In the case of Hamilton v. Dooly, supra, the defendant, in his answer filed February 8,1890,' alleged, referring to the sale and conveyance of the Charles Dickens property to his agent, R. C. Chambers, under the foreclosure proceedings, “that by virtue of such sale and •conveyance said defendant became and was the equitable owner of an undivided two-thirds of said mining claims, freed from said trust; that thereafter the same was sold and conveyed by said Chambers under the authority of the defendant, and said sum hereinafter stated received therefor, but that the same was not re
Fox testified that he was instrumental in securing most of 'the assignments to Felkner for the purpose of this action, and that he informed the parties owning the claims that defendant, in the trial of the case of Hamilton v. Dooly, supra, claimed the Charles Dickens property, and that he was entitled to the proceeds of the sale; that Dooly claimed all the money. And he further testified as follows: “After these assignments were made I talked with Felkner. We met frequently from the time the assignments were made. ... I talked with him about it, and 'told him about the Rohrer suit repeatedly (Hamilton v. Dooly), and that Dooly claimed the proceeds of the sale. ... I have known ever since 1890 that Mr. Dooly claimed the proceeds of the sale of the Charles Dickens mine as his own individual money. ’ ’
Felkner was called as a witness, and testified in part, as follows: “I was a creditor of Norton’s and heard of the Rohrer suit pending here away back ten years ago, and knew that Rohrer claimed to have a note from Norton, and that he was suing Dooly on that note, and that he was suing Dooly to recover his proportion of the money that Dooly received on the sale of the property, . . . and knew that Dooly was fighting that case — resisting payment to Rohrer — and that Dooly was claiming that he did not have to pay any of that money received from the sale of Charles Dickens mine . . . to Rohrer or to anybody. ’ ’
Without further reviewing in detail the facts and proceedings. of the former cases in which the trust funds in question were the subject-matter of litigation, it sufficeth to state that the record shows that the plain
In the case of Thomas v. Glendinning, 13 Utah 47, this court held that: “It is well settled that as between the trustee and cestui que trust, the statute of limitations does not operate, in cases of express or direct trust, so long as such trust continues. But when the trustee denies the trust and assumes ownership of the trust property, or denies his liability or obligation under the trust relation in such manner that the cestui que trust has actual or even constructive notice of the repudiation of the trust, then the statute of limitations attaches and begins to run from that time, for such denial or adverse claim is an abandonment of the fiduciary character in which the trustee has stood to the property. ” 2 Wood on Limitations, 212; 1 Beach, Modern Equity Juris., 155; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L. Ed. 718; Philippi v. Philippi, 115 U. S. 151, 5 Sup. Ct. 1181, 29 L. Ed. 336; Riddle v. Whitehill, 135 U. S. 621, 10 Sup. Ct. 924, 34 L. Ed. 283; Miles v. Thorne, 99 Am. Dec. 391; Wilson v. Green, 49 Iowa 251; Jones v. Lemon, 26 W. Va. 629; Mantle v. Mining Co., 27 Mont. 473, 71 Pac. 665; Kane v. Bloodgood, 7 Johns. Ch. 91, 11 Am. Dec. 417; Janes v. Throckmorton, 57 Cal. 368; W. L. Turnpike Co. v. Wickliffe’s Adm’r, 100 Ky. 531, 38 S. W. 866, 66 Am. St. Rep. 356; Ganser v. Ganser, 83 Minn. 199, 86 N. W. 18, 85 Am. St. Rep, 461.
Section 2855, Rev. St. 1898, provides that “civil actions can be commenced only within (the periods pre
Our former opinion in this case is hereby modified, and the judgment of the lower court, in SO' far as it exonerates defendant from all legal liability to account for the proceeds of the sale of the Charles Dickens property, is affirmed. But the case is remanded with directions to the trial court to modify and set aside the judgment in so far as it holds that plaintiffs ’ cause of action to compel defendant to account for the proceeds of the sales of the other trust property is barred, and to proceed in accordance with the views herein expressed; the costs of this appeal to be taxed against respondent.