Dissenting. — I am unable to concur in the conclusion reached by my associates. I do not think that the mayor, under the facts alleged in the complaint, can maintain this action. The mayor parted with the title to the greater portion of the land in controversy more than twenty years before this suit was brought. During all that period of time the predecessors in interest of this plaintiff, as trustees, and the cestui que trusts, if any, have never taken any steps whatever to claim any right, title or interest in and to any of the real estate set forth in the first cause of action. Under the second cause of action, a period -of fourteen years had expired since the patent to the land described in said second cause of action was issued by the United States to the mayor of Boise City', and more than four years has elapsed since the same was conveyed by the mayor of Boise City to John Lemp, deceased, and during that period of time no action or proceeding of any kind, so far as the complaint shows, has been commenced by the plaintiff or his predecessors in office, as mayors, or by any other person claiming any right, title or interest in or to the premises described in .the second cause of action. Under that state of facts, I think it sufficiently appears that the plaintiff as well as the cestui que trusts, or beneficiaries, have been guilty of such laches as will prevent recovery in a court of equity.
The complaint alleges that the plaintiff did not discover the facts constituting the fraud in conveying said lands until September, 1912, and also alleges, upon information and belief, that his predecessors in office, since the time of the execution of the deeds in question, had no knowledge of the facts *413constituting the fraud alleged. Those allegations no doubt were placed in the complaint for the purpose of avoiding the defense of the statute of limitations and of laches, but they are not sufficient for that purpose. There are no facts or circumstances alleged from which the court may determine whether or not the plaintiff mayor and all of his predecessors in office could not have obtained knowledge of all the facts and circumstances in regard to this transaction long prior to September, 1912. Sufficient facts are not alleged showing that the plaintiff or his predecessors in office were not negligent in not discovering the fact of the fraudulent conveyance of such lands, if such lands were fraudulently conveyed. There are no allegations that there was any concealment practiced upon the part of plaintiff or his predecessors in office or by the defendant, John Lemp. The complaint is defective in failing to show how the fraud came to be discovered and why it was not discovered before, and in such a ease where excuses for laches are plead, the pleader should set forth in his complaint specifically what were the impediments to the earlier prosecution of his claim how he came to be so long ignorant of his rights and the means used by the respondent to fraudulently keep him in ignorance. (See Felix v. Patrick, 145 U. S. 317, 12 Sup. Ct. 862, 36 L. ed. 719.)
It is stated in Wood v. Carpenter, 101 U. S. 135, 25 L. ed. 807, that a general allegation of ignorance at one time and of knowledge at another are of no effect. If the plaintiff made any particular discovery, it should be stated when it was, how it was made, and why it was not made sooner. If Lemp’s mayor’s deed was not placed upon record, and Lemp was not in possession of the property to which he was claiming title, and there was nothing to indicate such claim, these facts should have been alleged. It is a well-settled principle of law that possession of the means of knowledge is the same as knowledge itself. (New Albany v. Burke, 11 Wall. 96, 20 L. ed. 155.)
No doubt the deeds referred to were evidenced by public records accessible to all, and it is a well-settled rule that the party who seeks to avoid the effect of such record notice must *414show something more than concealment by mere silence. Some affirmative act of deception must be shown. (Lant v. Manley, 71 Fed. 7.) The Complaint does not allege nor show why it was that the facts in regard to this transaction were not discovered before. It is evident from the allegations of the complaint that plaintiff’s predecessors in office all knew of the facts concerning the conveyance of said land to Lemp. It is easily understood why the plaintiff mayor did not know of any of the facts until in 1912, as he had been a resident of said city but a short time and had no interest in the title to said property as to whether it was the property of Lemp or of Boise City until after his election as mayor. For more than twenty-one years Lemp held title to the greater portion of said real estate, and under the ruling of my associates, had he held possession of it for one hundred years, some mayor who was not born at the time of the conveyance to Lemp and who knew nothing about the facts until he was elected mayor' could maintain an action to recover the title to said property. The rule governing this question is well stated in .sec. 27, 5 Pomeroy’s Equity Jurisprudence, as follows: “Knowledge of facts which would put a person of ordinary prudence and diligence on inquiry is, in the eyes of the law, equivalent to a knowledge of all the facts which a reasonably diligent inquiry would disclose. ’ ’ The plaintiff’s cause of action was barred by the statute of limitations, sec. 4036, Rev. Codes. (Murphy v. Crowley, 140 Cal. 141, 73 Pac. 820.)
Under the allegations of the complaint, it appears that the predecessors in office and as trustees, Pinney and Haines, had knowledge of all the facts constituting any fraud in this case. This would start the statute of limitations in operation so far as the recovery upon the ground of fraud is concerned. But this being a ease for the recovery of real property and the quieting of title thereto, and the fraud alleged being a mere incident, the action is barred by the five-year limitation above stated. And if it is barred as to the trustee, as it certainly is, and if the present plaintiff is a trustee having a right to bring this action, then every other person who is .elected mayor of Boise City subsequent to these conveyances also had the *415right to bring this action. They were not laboring under any disability whatever, and if this action is barred as against the trustee, it is also barred against the beneficiaries. (Patchett v. Pacific Coast Ry. Co., 100 Cal. 505, 35 Pac. 73.) It is stated in that case that the general rule is that when a trust is barred by the statute of limitations, the cestui que trust is likewise barred, even though an infant. The fact that the legal title to this property was held in trust is no defense to the bar of the statute of limitations.
The plaintiff in this action has no standing in a court of equity to maintain this action, for under the United States Statutes, the townsite act, the only title vested in the mayor is the naked legal title; the equitable title is in the beneficiary. After the trustee under the townsite act has executed a deed of the property, whether the same be rightfully or wrongfully issued, the trust being terminated, the only person who can question the transfer is the beneficiary or cestui que trust. (Cowell v. Colorado Springs Co., 100 U. S. 55, 25 L. ed. 547; Murray v. Hobson, 10 Colo. 66, 13 Pac. 921.)
Under the commission form of government, the mayor is mayor in name only. He is, as a matter of fact, only one of five couneilmen who control the city. He is the head of one of the departments. He cannot of his own initiative commence an action on behalf of Boise City any more than can any other one of the five members of the council.
And again, what is the object of the mayor in prosecuting this action? If successful, what does he propose to do with this tract of land ? Under all of the authorities he cannot convey it to Boise City for a park or for any other purpose. He must sell it. Under the authority, the mayor as trustee acts in a judicial capacity in passing upon the question as to who is the beneficiary under the townsite act. The two former mayors of Boise City have passed upon that question. They have held that John Lemp was entitled to the property and conveyed it to him. As long as the title remained in the trustee, he might maintain an action to protect his own title or possession of the property, but he is nowhere authorized to *416institute proceedings to determine who the beneficiaries are under the trust.
It is alleged in the complaint that the greater portion of said land was conveyed to John Lemp by the mayor on the 5th day of June, 1891, and in order to hold the title to said land all these years, John Lemp has certainly paid all taxes levied by the city, county and state on said land. It is presumed that the taxing officers performed their duty in regard to it, and after paying city taxes on said land for twenty-one or twenty-two years, the city, or its mayor, is in equity and good conscience estopped from now claiming title thereto.
I think, under the allegations of the complaint and the law applicable thereto, the mayor is not the proper party and cannot maintain this action; that the action is barred by the statute of limitations, and that sufficient facts are not alleged, and the doctrine of laches and estoppel should apply. The complaint does not state a cause of action.
Petition for rehearing denied.