Felkner et al. v. Dooly.

ceived or even held in trust." All of the claims, thirtyfour in number, sued on in this action, except three claims owned or represented by plaintiff Fox, were prior to the bringing of the action, assigned to plaintiff Felkner, with one exception, these assignments were made prior to April, 1893, more than six years before this action was commenced.

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

Felkner et al. v. Dooly.

tiffs and their assignees, for nearly ten years prior to the commencement of this action, had knowledge of the fact that Dooly had repudiated and denied the trust as to the proceeds of the sale of the Charles Dickens property. And the authorities uniformly hold that when a trustee of an express trust denies the trust and assumes the absolute ownership of the trust property, and this claim of ownership is brought home to the cestui que trust, a cause of action exists in favor of the latter from the time he receives notice of the repudiation of the trust by the trustee, and the statute of limitations begins to run from that time.

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

Felkner et al. v. Dooly.

scribed in the three succeeding chapters after the cause of action shall have accrued." The time in which actions, such as the one under consideration, may be commenced, is four years from the time the cause of action accrues. Rev. St. 1898, section 2883. In this case the cause of action existed in favor of plaintiffs and their assignors for the recovery of their interest in the proceeds of the sale of the Charles Dickens mine when they received notice that Dooly asserted absolute ownership in himself to this fund, and, having failed to commence their action for more than four years thereafter, the defense of the statute of limitations interposed by defendant must prevail as to this particular fund. There being no claim or pretense that Dooly has ever denied or repudiated his trust as to the funds received from the sales of the other property which came into his possession by virtue of the trust, he must therefore account for the same..

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.

BARTCH, J., concurs. BASKIN, C. J., dissents.

English v. Openshaw.

ELIZA ENGLISH, Appellant, v. JOSEPH H. OPENSHAW, Respondent.

No. 1563. (78 Pac. 476.)

1. Quiet Title, Action to: Adverse Possession: Deed: Evidence.

Where a warranty deed in favor of defendant was regular on its

face, it was admissible in an action to quiet title without evidence being first introduced showing possession thereunder.

2. Same: Evidence Examined: Sufficiency.

Evidence reviewed, and held insufficient to establish that plaintiff's possession of certain land in controversy was adverse to defendant.

3. Same: Burden of Proof.

Under Revised Statutes, section 2861, providing that in every action for the recovery of real property or the possession thereof the person establishing a legal title shall be presumed to have been possessed thereof within the time required by law, etc., the burden is on one claiming title by adverse possession to prove the same, and not on the defendant to establish that he was in possession under his legal title for the statutory period.1

4. Same: Evidence: Letter: Admissibility.

Where in an action to quiet title, plaintiff claimed title by adverse possession, a letter written to defendant, in which plaintiff recognized his interest in the land, was admissible.

(Decided November 11, 1904.)

Appeal from the Third District Court, Salt Lake County.-Hon. W. C. Hall, Judge.

1 Funk v. Anderson, 22 Utah 238, 61 Pac. 1006; Center Creek Irrigation Co. v. Lindsay, 21 Utah 192, 60 Pac. 559; Smith v. North Canyon Water Co., 16 Utah 194, 52 Pac. 283.

28 Utah-16

English v. Openshaw.

Action to quiet title to certain real estate in Salt Lake City. From a judgment in favor of the defendant, plaintiff appealed.

AFFIRMED.

Frank H. Clark, Esq., for appellant.

Ben Johnson, Esq., S. H. Lewis, Esq., and Messrs. Sutherland, Van Cott & Allison for respondent.

The deed dated September 26, 1882, was properly admitted in evidence.

On the trial the defendant offered in evidence the warranty deed dated September 26, 1882, running, from Andrew English to George W. English, Jesse R. English and the defendant, Joseph H. Openshaw, and conveying to them all of the property described in the complaint.

To say that a deed is not admissible in evidence without first showing possession under it is absurd; and in the case at bar possession by the defendant was conclusively shown after the deed was introduced.

"In every action for the recovery of real property, or the possession thereof, the person establishing a legal title to the property shall be presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person shall be deemed to have been under and in subordination to the legal title, unless it appears that the property has been held and possessed adversely to such legal title for seven years before the commencement of the action."

This principle of law has also been enunciated in the following cases from this court: Center Creek, etc., Co. v. Lindsay, 21 Utah 200; Funk v. Anderson, 22 Utah 238.

The same rule prevails in other States. Schwallback v. Railway Co., 69 Wis. 292, 2 Am. St. Rep. 740;