ON PETITION ROT REHEARING.
Potter, Chief Justice.A petition for rehearing was filed in this cause by the defendant in error. The plaintiff in error filed a motion to modify the order remanding the cause for new trial, by either rendering judgment for the plaintiff in error or directing the district court to do so. Both the petition for rehearing and motion to modify were heard upon briefs and oral argument. No new point is raised by the petition for rehearing, but it is claimed that this court erred in the conclusions stated in the former opinion. Upon further consideration we perceive no reason for changing those conclusions. The facts of the case and the grounds for the decision are so fully stated in the former opinion that we deem it unnecessary to enlarge materially upon what was then said. (104 Pac. 23.) Counsel for defendant in error have called our attention to some authorities not cited in their original brief, but we think they are not' in point upon the facts in this case.
In addition to the facts stated in the previous opinion showing the character of the possession and claim of Mrs. Scrutchfield prior to her sale and conveyance of the property in controversy, we may add that in 1891 the property was assessed for taxation to, and the taxes paid by, Grinnell, as re*96ceiver; and from' 1893 to 1896, both inclusive, it was assessed to, and the taxes paid by, Mrs. Scrutchfield. She sold and conveyed the property in 1897. We think it impossible to escape the conclusion that Mrs. Scrutchfield’s possession prior to the time that she sold and conveyed the property was hostile to the legal title of Scrutchfield and under, a claim of right. The question is not material whether the language employed in the orders vesting the property in her was sufficient to divest the legal title of Scrutchfield, and hence it is unnecessary to enter into a consideration of. the meaning of the word “control” as found in the several orders of the court. During the period of Mrs. Scrutchfield’s possession she held it under the court’s order for the sole benefit of herself and children, and the divorce decree continuing the receiver in charge of the property for the use and benefit of herself and children, and the later order granting her full, unqualified and absolute control for the sole benefit of herself and children had, if valid, the effect at least of divesting Scrutchfield, the holder of the legal title, of any right to possession or of any beneficial interest in the property. The possession was as much hostile to him during that period as at any time afterward, and if, as claimed, all of the court, orders with reference to the property were void, which is the theory upon which the.action is sought to be maintained, he might have brought his action' to recover possession at any time while Mrs. Scrutchfield was in possession. The rule that a trustee cannot hold adversely to the beneficiary is not applicable to .the facts in this case. The motion for rehearing will be denied.
We think our order previously made in the cause should be modified as suggested. There is nothing in the findings as to the facts inconsistent with a judgment in favor of the plaintiff in error here, defendant below. While it is true, as- stated in our previous opinion, that the. District Court failed to make an explicit finding that the possession of Mrs. Scrutchfield was continuous, exclusive and hostile as against Scrutchfield, as well as every other person, ex-. *97cept her joint beneficiaries, and under a claim of right, there is nothing in the findings to the contrary. So far as the findings of fact cover the question they are in harmony with the fact, which we think clearly established by the evidence, that Mrs. Scrutchfield’s possession was continuous, open, notorious, exclusive and hostile, and under a claim of right such as to constitute adverse possession: Upon further consideration, therefore, we have concluded that a new trial of the cause could serve no useful purpose, and that upon the evidence and the law of' the case the District Court should be directed to enter a judgment in favor of the defendant below, the plaintiff in error here. Our former order in the case will therefore be so modified as to direct the entering of such a judgment.
BEARD, J., and Scott, J., concur.