Jenkins v. Jensen
66 P. 773
Utah
1901
Check Treatment
MINER, C. J.,

after stating the facts, delivered the opinion of the court.

The appellant contends that the title to lots 1 and 16 became absolutely vested in him. by virtue of the agreement of November 26, 1880, and that he was entitled to the possession thereof on December 8, 1900 — that being the date he arrived at the age of 21 years- — and that neither, the administrator nor guardian obtained any authority to enter into the second agreement. The respondents claim (1) that appellant’s cause of action was barred by the statute of limitations of this State long before the institution of this action; (2) that plaintiff is barred by reason of the compromise made in 1881, by *121which Thomas and Ann Jenkins gave up claim to lots 2 and 3, and the administrator and guardian thereafter gave up all claim to lots 1 and 16; (3) the compromise of 1881 was affirmed by the appellant and his representatives by retaining possession of lots 2 and 3, and asserting title thereto, without any offer to return the same; (4) plaintiff is estopped from claiming the property.

A careful examination of the statement of facts heretofore presented, and the findings of the trial court thereon, will show that John A. Jenkins, deceased, never entered into possession of the 40-acre tract after obtaining the deed from Mary R. Jenkins, nor did he ever claim to own the property, but, on the contrary, asserted that it was not his property; that he held it for his mother and sisters. The administrator never had possession of the 40-acre tract, including lots 1 and 16. The agreement of 1881 tends to show that the administrator and the guardian (the mother of the plaintiff), in conveying away lots 1 and 16, knew that the same were being held and claimed adversely to them by other claimants. These lots are not mentioned as belonging to the estate in the inventory of the property by the administrator in his petition for sale and distribution of the same as required by the Compiled Laws of Utah of 1876 (page 310, section 145). The testimony and findings show that Thomas Jenkins and his successors and grantees have had the exclusive possession of said land since 1875, and since 1881 have had the exclusive, continuous, adverse, notorious, and peaceable possession of said tract, up to the time this action was commenced, and during that time have paid all the taxes thereon, cultivated the same each year, and inclosed the same with a fence. Under the statutes of Utah in force in and since 1881, the administrator had the exclusive right to the possession of real property belonging to the estate until the final order of the court, and had the right to bring suit to recover any real property belonging to the estate held adversely by others. By the Laws of 1884 pos*122session of the heir is made subject to tbe possession of the administrator for the purpose of administration. Comp. Laws 1876, p. 301, sec. 107; Id. p. 319, sec. 183; Id. p. 320, see. 184; Laws 1884, p. 404, sec. 10; Id. p. 429, sec. 2; 2 Comp. Laws 1888, p. 486, sec. 10; Id. p. 489, secs. 1, 2, 3; Rev. St. 1898, secs. 3912-3914; Comp. Laws 1876, p-. 402, sec. 6 ; Laws 1884, p. 192, sec. 226; Rev. St. 1898, sec. 2902; Comp. Laws 1888, sec. 3171.

The principal question for consideration, therefore, is whether the statute of limitations could have run against the plaintiff when he became of age, on December 8, 1900. 1 In the consideration of this question, it must be remembered that this is not an action between the administrator and guardian, on the one side, and one claiming as heir, on the other, but is an action between one claiming as heir to an estate, on the one hand, and strangers to the estate, on the other. By the provisions of section 107, p. 301, Compiled Laws 1876, the administrator has the right to the possession of all real estate until the estate be settled, or is otherwise dispossessed by order of the court. By section 183, p. 319, Compiled Laws 1876, the administrator is required to take possession of all real estate of the deceased. For the purpose of bringing suits to quiet title the possession of the administrator is deemed the possession of the heir. Possession of the heir is made subject to -the possession of the administrator for the purpose of administration. Laws 1884, p. 404, sec. 10; Laws-1884, p. 429, sec. 1. Section 179, p. 319, Compiled Laws 1876, reads as follows: “No action for the recovery of any estate, sold by an executor or administrator under the provisions of this act, shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within two years next after the sale.” Section 180: “The preceding section shall not apply to minors or others under any legal disability to sue at the time when the right of action shall first accrue; but all such persons may *123commence such action at any time witbin two years after the removal of the disability.” Section 13, p. 365, Compiled Laws 1876, provides as follows: “If a person entitled to commence any action for the recovery of real property, or for the recovery of the possession thereof, or to make any entry or defense founded on the title to real property, or to rents or services out of the same, be at the time such title shall first descend or accrue, either, first, within age of majority, or second, insane. . . . The time during which' such disability shall continue shall not be deemed any portion of the time in this act limited for the commencement- of such actions, or the making of such entry or defense, but such action may be commenced or entry or defense made within the period of two years after such disability shall cease, or after the death of the person entitled, who shall die under such disability, but such action shall not be commenced or entry or defense made after that period.”

In the case of McLeran v. Benton, 73 Cal. 329, 14 Pac. 879, 2 Am. St. Rep. 814, a similar question, under a like statute in California, was determined. The question was raised whether the plaintiffs, infants, were barred on account of the executor being barred; and the court held that the statute of limitations had run against the infants, notwithstanding their infancy, because the executor representing them was barred. The court said: “If the entry of the defendants was wrongful, the devisees of Harmon could not maintain an action, for that right existed exclusively in the executors, who, in all suits for the benefit of the estate, represented both the creditors and the heirs. (Cunningham v. Ashley, 45 Cal. 493 ; Halleck v. Mixer, 16 Cal. 579.) It would seem to follow, therefore, that when the executor is barred of his action the heir is barred, although the heir or devisee be laboring under a disability. (Wilmerding v. Russ, 33 Conn. 68.) The general rule is that when a trustee is barred by the statute of limitations the cestui que trust is likewise barred, even though an *124infant (Hill, Trustees, 267, 403, 504), and that the heir or devisee is dependent upon the diligence of the executor for the maintenance of his rights with respect to the real property, but is not without a remedy by an action for damages against his executor and his sureties, or by a proper proceeding to compel him to bring suit. (Tyler v. Houghton, 25 Cal. 29.) This subject has been very carefully considered, and the decisions ánd statutes of this State elaborately reviewed, by the circuit court and the Supreme Court of the United States and the conclusion reached that, where the administrator in this State neglects to bring an action to recover property of the estate until it is barred under the statute of limitations applicable to the subject, the heir is also barred, even though the heir be a minor at the time the action accrues to the administrator. Meeks v. Vassault, Fed. Cas. No. 9393 [3 Sawy. 206] ; Meeks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735.” In the case of Meeks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735, suit was brought to recover decedent’s property sold by the executor, on the ground that the sale was void; and the question of the statute of limitations was raised, as affecting the right of the infant to sue under a statute like that of Utah. In its opinion the court calls attention to the fact that the administrator had the right to the possession of all the property, and was the only person and the proper party to bring the action to recover the real estate, and that, as more than three years had elapsed without suit being brought by the administrator, the cestui que trust, although a minor, was barred, because the right to commence the suit was in the administrator, and if he did not sue within the required time all persons under him were barred. The court said: “The right of action on the title which the plaintiff now asserts was in the administrator, and the statute therefore ran against him and against all whose rights he represented. 'In all suits for the benefit of the estate he represents both the creditors and the heirs,’ said the Supreme Court in Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237. What*125ever doubt may have existed at one time on tbe subject,, there remains none at the present day, that whenever the right of action in the trustees is barred by the statute of limitations the right of the cestui que trust thus represented is also barred. This doctrine is clearly stated in Hill, Trustees, 26V, 403, 504, and the authorities there cited fully sustain the text, both English and American.” In a note to Moore v. Armstrong, 36 Am. Dec. 68, where many authorities are cited to support the text, it is said: “There is also a diversity of opinion on the question as to how far the rights of an infant are affected when his property is in the hands of a trustee, executor, or guardian; and the tendency of the decisions is to support the position that when the right of action vests in an executor, guardian, or trustee, who is under no legal disability, the statute will commence to run despite the disability of the minor, and, if the claim is lost by the neglect of the representative to sue, the minor is barred.”

From the above authorities it is apparent that where the executor, administrator, or trustee has a right to sue, and omits that duty, the beneficiary is then barred, and his remedy is against the administrator or his bondsmen. In Patchett v. Railway Co., 100 Cal. 505, 35 Pac. 73, the court laid down the same rule announced in Moore v. Armstrong, supra. In the opinion in that case it is said: “The rule that the statute of limitations does not bar a trust estate holds only between cestui que trust and trustee, not as between cestui que trust and trustee on one side, and strangers on the other; for that would make the statute of no force at all, because there is hardly any estate of consequence without such trust, and so the act would never take place. Therefore, where the cestui que trust and his trustee are both out of possession for the time limited, the party in possession has a good bar against them both. . . . Where the trustee is barred, so is the cestui13 Am. and Eng. Ency. Law, 740. In Dennis v. Bint, 122 Cal. 40, 54 Pac. 378, 68 Am. St. Rep. 17, the ques*126tion was presented whether the heirs were barred because the administrator was barred, and the court said: “The result of the cases involving or illustrating the effect of these sections, in their original form, is that, if the administrator failed to sue to recover the land or set aside the sale within three years next following the sale — the administration so long continuing — then the heirs as well as himself were barred, even though the heirs were minors; this on the ground that under our system the administrator represents the heirs; he, the trustee; they, the cestuis.” In this decision the administrator is held to be the trustee, and the heirs the cestuis; and this under statutes like those of Utah. In 27 Am. and Eng. Ency. Law (1 Ed.), 98, 100, the general rule is laid down that the statute of limitations runs as between the administrator and the heirs, on the one side, and strangers, on the other, although ordinarily the statute does not run between the trustee or administrator, on the one side, and the beneficiary, on the other. In the present case the administrator had the exclusive right of possession, with a right to sue, which, for the purposes of administration, gave him the legal title until devested by distribution or by order of the court. The estate in question is still in the hands of the administrator, and he has never taken possession of the property in dispute, but the same has remained in the peaceable possession of Thomas Jenkins and his grantees since 1875, without interference on the part of the administrator since the agreement of 1881. John A. Jenkins never took possession of the lots in question under his deed, and claimed no ownership therein, except as trustee for his mother and sisters. Ann Jenkins and Thomas Jenkins continued in possession of the 40-acre tract on September 1, 1881, when the last agreement was made between the parties, and previous to that date, from 1875, continued in possession of said lots 1 and 16 under claim of title founded on said agreement of September 1, 1881, exclusive of any other right whatever, and so continued until they conveyed thepi in 1882 *127to the grantors of the defendants herein, who have held possession thereof since 1896, being a continuous, undisputed, peaceable possession in them and their grantees for more than eighteen years previous to the time of the commencement of this suit, during all of which time the administrator has not only failed to take proceedings to recover possession, but has personally and officially assented to the ownership and possession thereof by the defendants and their grantors since the time of his appointment, in 1879, knowing at that- time and since that Thomas and Ann Jenkins and their grantees were in possession claiming title to the land. Irrespective of other considerations presented in the record we are of the opinion that, under the facts disclosed, 'the right of possession 2 being in the administrator, the -rule that the statute of limitations does not bar a trust estate holds only between the cestui que trust and trustee, and not as between the cestui que trust and trustee, on the one side, and strangers, on the other. The defendants in this action were strangers to the estate, and they and their predecessors in interest and grantors having held lots 1 and 16 adversely, under a claim of title, and under the requirements of the statute, for more than seven 3 years, their title must be held quieted and freed from the assumed ownership and claim of the plaintiff. Comp. Laws TJtah 1876, pp. 363, 364, secs. 4-6; Id. p. 365, sec. 13; Laws 1884, pp. 184-186, secs. 179, 180, 182, 183, 188; 2 Comp. Laws 1888, secs. 3131-3134, 3140. Under the circumstances disclosed, if an administrator or trustee allows the statute of limitations to run so as to bar his rights as such, he lays 4 himself liable to the heir or any one else injured by his failure to perform his duty. Meeks v. Olpherts,100 U. S. 564, 25 L. Ed. 735; MeLerah v. Benton, 73 Cal. 329, 343, 14, Pac. 879, 2 Am. St. Rep. 814.

The appellant claims that the legal title to the lots in' question was vested in him by virtue of the agreement of 1880. The court found, and the facts show, that the agreement was *128made to settle the disputes existing between the parties, but that the ill feeling and animosities continued to exist unabated until the agreement of 1881 was made, when the disputes ceased, and the agreement was accepted by the parties until this suit was brought. By the agreement of 1880 the parties were to enter into an agreement for the due performance of the further conditions named therein, but no agreement for due performance of such further conditions named was ever entered into, and the disputes still continued until the agreement of 1881 was made. It was therein stated that- owing to the non-approval of the probate court, and the misunderstanding of the parties as to the meaning of the paper made in 1880, it was never wholly adopted by the parties thereto. The agreement of 1880 was made to settle the controversy existing between the administrator on the one side, and Thomas and Ann Jenkins on the other and not between the minor and administrator as to any controversy between them, and it should be construed so as to carry out the objects of the parties. If the legal title to the lots at that time was in the estate of John A. Jenkins, deceased, it descended to the heirs, subject to the right of administration and the payment of the debts of the deceased. It would be a fraud on the creditors and upon the rights of the mother to agree to convey the title to the minor irrespective of their rights. Notwithstanding such agreement of 1880, creditors would still have the right to have the property sold to pay the debts. The administrator reported to the court that the agreement of 1880' was not wholly adopted. The disputes kept up until the 1881 agreement was made Ann and Thomas Jenkins still remained in possession of the premises until after the agreement of 1881, so that it is probable that the intention of the parties in executing the agreement of 1880 was to settle the rights of the parties as to the ownership, and not to change the character of the ownership from that of heir to that of grantee. They all agreed that the legal title was in the name of John A. Jenkins at the time of *129bis death. If this was so, then Thomas and Ann Jenkins had no title they could convey to the plaintiff. In his inventory to the court in 1881 the administrator left out lots 1 and 16, and did not claim them as belonging to the estate, and in his petition for the distribution of the real estate these lots were left out of the schedule. In the guardianship papers of the plaintiff the guardian, who is the mother of the plaintiff, claimed she was entitled to one-third of the income of the farm in accordance with the agreement in 1881, which claim was inconsistent with the agreement of 1880. Since 1881 the administrator and guardian have acted under the agreement of 1881, and have practically ignored that of 1880. In cases where the language used by the parties to a contract is 5 indefinite and ambiguous, 'and hence of doubtful construction, the practical construction of the parties themselves is entitled to great, if not controlling, influence. Chicago v. Sheldon, 9 Wall. 54, 19 L. Ed. 594. It will be remembered that Barnes was appointed administrator in 1819. At this time Thomas and Ann Jenkins were holding possession of the land adversely, and the statute of limitations commenced to run. When the agreement of 1880 was made, these parties were in possession. The actual change in the situation did not occur until 1881. The statute was therefore running before the agreement of 1880, and continued to run after that agreement was executed, so that the disability of the 6 plaintiff, even if he could take title by the agreement of 1880, did not stop the running of the statute. The law is well settled that, when the statute of limitations once commences to run, it does not cease to run on account of any subsequent disability, unless such disability comes within the exception of the statute. 13 Am. and Eng. Ency. Law (1 Ed.), 731, 732. The administrator or trustee having the right to commence suit for the recovery of the property within the time limited by the statute, and having omitted to do so, he *130is barred from commencing such action against the respondents who are strangers to tbe estate; and bis beneficiary is also barred, and bis only remedy, if any, would be against tbe administrator and bis sureties. Whether such liability now exists we do not decide.

Tbe respondents also claim that the appellant is barred by reason of tbe compromise as evidenced by tbe agreement of 1881, by which Thomas and Ann Jenkins gave up all claim to lots 2 and 3, and tbe administrator and guardian gave up to them all claim to lots 1 and 16, and that by retaining possession of lots 2 and 3 under such agreement and compromise, and asserting title thereto, be must be held as confirming the compromise; that he can not repudiate a contract made for bis benefit, without returning tbe property in bis possession obtained by and through it. Inasmuch as this case has been determined upon other grounds, we forbear further discussion upon this subject.

The decree of the district court is affirmed, with costs.

BASKIN and BARTOH, JJ., concur.