75 Colo. 164 | Colo. | 1924
delivered the opinion of the court.
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 life time 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
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 Pac. 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 Pac. 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 after-wards.”
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.”
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 twenty 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, section 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 twenty year statute of limitations. In Mexican Nat. Coal, T. & I. Co. v. Frank, 154 Fed. 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 will was contested. It was finally adjudged to be invalid. The contention of the plaintiffs in error, plaintiffs below, is that the cause or causes of action herein sued on did not accrue until the will was adjudged to be invalid.
In 2 Black on Rescission and Cancellation, 1303, section 551, the author says: “And where the decedent leaves a will, the validity of which has been attacked in the probate court, where an issue upon its' probate is pending, a person who would take as heir of the decedent if the latter died intestate, but who would take nothing under the will, cannot sue to cancel a deed of the decedent’s property until he has succeeded in his suit to have the will set aside or to have probate refused.”
The author cites in support of the foregoing text: Hagan
It must next be determined what adjudication, or the decision of what court, started the running of the statutes of limitation in this case. The defendant claims that it was the judgment of the district court, which adjudged the will to be invalid, on October 14, 1914. The plaintiffs claim that it was the decision of this court in James v. James, supra, wherein we reviewed the judgment of the district court and affirmed it, on January 8, 1918.
Ordinarily where a statute of limitations is stayed during the pendency of legal proceedings or litigation, the statute begins to run from the date of the final judgment in such proceedings. 25 Cyc. 1279. Defendant contends that the statutes of > limitation, if ever suspended, by the will contest, began to run-, in this case, from the date of the judgment of the district court, October 14, 1914, because the judgment was never stayed, nor. any supersedeas ever granted. That might be true if he had allowed the litigation to end with such judgment, but he himself prolonged the litigation by suing out the writ of
In our opinion the statutes of limitation began to run from the time the judgment of this court in James v. James, supra, was rendered and became final, which was less than three years before the present suit was instituted. The instant case was therefore instituted in apt time. It was error to render judgment for defendant on the pleadings on the ground that the suit is barred by statutes of limitation:
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
Mr. Chief Justice Teller and Mr. Justice Burke concur.