(dissenting):
I respectfully dissent from the majority decision herein, not only because it reaches the unconscionable result of rewarding the wrongdoers and defeating the object and purpose of an express trust established for the use and benefit of the members of the Odd Fellowship and their charitable purposes, but because it ignores the nature of the trust and permits repudiation of it without a proper and necessary showing of notice to the real beneficiaries.
First of all, the defendants’ plea of the statute of limitations is an affirmative defense and the burden of proof is upon the pleader. Armstrong v. City of Des Moines, 232 Iowa 711, 715, 6 N.W.2d 287, 289; In re Estate of Fisher, 128 Iowa 18, 21, 102 N.W. 797, 798 ; 54 C.J.S. Limitations of Actions § 388, p. 529; Solon Lodge No. 9 v. Ionic Lodge Free A. & A. M., 247 N.C. 310, 101 S.E.2d 8, and citations; 34 Am.Jur., Limitation of Actions, § 450.
This court has not viewed the application of the statute of limitations with favor in trust matters. In Boehnke v. Roenfanz, 246 Iowa 240, 247, 67 N.W.2d 585, 590, we recognized the rule that the statute of limitations is to be favored as a statute of repose but said it “has never been given application to voluntary trusts, since to do so would be to render such statute not a beneficent statute of repose but a vile instrument of wrong in relation to those who are standing and continuing in voluntarily assumed confidential relations to each other.” See 54 Am.Jur., Trusts § 83; 90 C.J.S. Trusts § 387. We also stated in Pap v. Pap, 247 Iowa 371, 382, 73 N.W.2d 742, 748, cited by the majority: “It is elementary that as between the trustee and cestui que trust of an express trust, statutes of limitations have no application. Possession by the trustee of trust property is, in law, possession of the cestui que trust. As against an express and continuing trust, time does not run until repudiation or adverse possession by the trustee and knowledge or notice thereof to the cestui.” Also see Boehnke v. Roenfanz, supra, 246 Iowa 240, 246, 67 N.W.2d 585, 590. Many authorities are cited for this proposition, including Bogert on Trusts and Trustees, § 951, pp. 200-202.
In Howes v. Sutton, 221 Iowa 1326, 1330, 268 N.W. 164, 166, this court stated: “It is an elemental principle of law that as between trustee and cestui que trust, in the case of an express trust, the statute of limitations has no application, and no length of time is a bar. Against an express and continuing trust time does not run until repudiation or adverse possession by the trustee and knowledge thereof on the part of the cestui.” (Emphasis supplied.) Also see Long v. Valleau, 87 Iowa 675, 55 N.W. 31, 56 N.W. 748.
Although the majority recognizes the trust herein as an express or resulting trust, it fails to properly identify the cestui or beneficiaries of the trust, simply referring to the beneficiary as the Grand Lodge. Without question, the beneficiary of the trust here is a class, the members of the Order of Odd Fellows of Iowa, and the trust property use is clearly designated by provisions of the constitution and by-laws of the Order. See 54 Am.Jur., Trusts, §§ 140 and 142. The Grand Lodge is not listed as a beneficiary but as a reversionary trustee thereunder.
Insofar as the record discloses, the prescribed uses and benefits of the trust property have not been disturbed by the transfer of title to another, the Association, also bound by the terms of the trust, and although by various amendments to its corporate articles the Association seems to express an intent in futuro to use the property adverse to the established trust, that event has not yet occurred. I, therefore, maintain the express or resulting trust involved has not been disturbed and no cause of action in favor of the beneficiaries has yet occurred to start the statute to run in the Association’s favor.
*374Furthermore, I find no proper notice of repudiation was ever given to the cestui as a class. How were they notified of the defendant’s intent to hold the property as unfriendly to the members of the Odd Fellows? In his Law of Trusts, 4th Ed., Mr. Bogert states in Ch. 20, § 170: “It is well settled that in express trusts, and as between beneficiary and trustee, the Statute of Limitations runs from the date when the beneficiary knows or should by the use of ordinary care have known of a breach or a repudiation of the trust by the trustee.”
Mr. Bogert further points out that, even if the trust in the hands of another such as the Association here is called a resulting trust, most courts have taken the position that the trustee’s normal position is that of a holder in subordination to the rights of the beneficiary, and that, from the date of the event which makes possible the trust until the contrary appears, he should be regarded as holding for the beneficiary and not adverse to him.
Bogert also recognized that the statute of limitations does not begin to run against the rights of the beneficiaries of a resulting trust on the theory of an adverse holding from the date the trustee obtains title, but, on the theory of a presumed friendly holding, only begins to run from the date of a repudiation by the resulting trustee or from the time a contrary intent is brought to the attention of the beneficiaries. He states the case then resembles an express trust of a continuing nature and is subject to the statute of limitations in a like manner. Thus, it was necessary here for the Association to show a repudiation which was brought to the attention of the membership of the Odd Fellows, and without question in that burden it failed.
In any event, it is clear that if the trustee or resulting trustee has expressly recognized the trust or conferred benefits on the cestui under it, as certainly appears herein, there is no running of the statute, and to start the statute thereafter the law requires a showing that the trustee has openly and clearly declined to recognize its obligations thereunder. In other words, only where the trustee has claimed the property and its use for himself, and where the beneficiary knows or has an opportunity to know of this conduct, is there a cause of action which should be affected by the statute of limitations. See Treager v. Friedman, 79 Cal.App.2d 151, 179 P.2d 387. In 34 Am.Jur., Limitation of Actions, §§ 175-177, it is stated the trustee in such cases must show “a plain, strong, and unequivocal renunciation” to claim the benefits of the statute. ' A showing that the Grand Lodge officers were aware of the facts here would not comply with this requirement or tend to prove that the membership of the Odd Fellows Order was reasonably made aware of an unequivocal renunciation of the trust.
In fact, I find no showing that the real beneficiaries were aware of a repudiation. The Association’s holding of this property until now was friendly.
The applicable rule in this jurisdiction as to when a statute of limitations is set in operation in such charitable trust matters as we have here before us is well stated in England v. Winslow, 196 Cal. 260, 272, 237 P. 542, 547, where it is said: “The only way in which the trustee of an express or voluntary trust can set the statute of limitations in operation in his favor with respect to it or its properties in his hands is by a distinct act of repudiation amounting to a denial of its existence, and no mere tacit failure of the trustee to perform his duty in respect to such trust could or should be held to amount to a repudiation of it so as to set the statute of limitations in motion in his favor * * (Emphasis supplied.) It seems clear to me that neither Lodge No. 18 nor the Association, as voluntary trustees of this property, ever committed any distinct act of repudiation which amounted to a denial of the existence of the trust, or that they in any manner adequately brought such a claimed repudiation to the attention of the real beneficiaries of the trust.
*375As stated, the majority seems to avoid the adequate notice requirement by simply stating the Grand Lodge was the beneficiary and that it was made aware of the claimed repudiation in 1948. It may be that, had the Grand Lodge been the real beneficiary, the acts and claims of the local order and the Association which was brought to its attention might have constituted due notice to that body. But we are not told how such a notice to the Grand Lodge officers would constitute due and adequate repudiation notice to the Order membership. In fact, appellees do not contend a repudiation notice to the Grand Lodge officers was adequate notice to the membership of the Order, and I would hold otherwise under these circumstances.
As I view this matter, the defendants, Lodge No. 18 and the Association, held the lodge property as voluntary trustees for the prescribed use and benefit of all the members of the Odd Fellows. The property in question was so used and its use had not changed subsequent to the transfer of title to the Association. Indeed, there had been no effort by the Association to use the property for any other purpose than that expressed in the trust agreement. Its holding, therefore, must be considered friendly to the trust.
Black’s Law Dictionary, Revised Fourth Edition, defines a beneficiary as “One for whose benefit a trust is created; a cestui que trust. * * * A person having the enjoyment of property of which a trustee, executor, etc., has the legal possession. * * * ” A reversionary interest on the other hand is defined as “A right to the future enjoyment of property, at present in the possession or occupation of another.” Clearly, in the case at bar the individual members as well as the local lodges agreed, when joining the Order, to be bound by the rules of the Order, which among other things provide that revenue from lodge property shall be used for its upkeep, paying debts and honoring obligations of the local lodge, and for various philanthropic manifestations of Odd Fellowship such as visiting the sick, relieving the distressed, and educating poor orphans.
The reversionary interest of the Grand Lodge, in the event a local lodge should become defunct, requires it to distribute the trust property as follows: (1) to meet the obligations of the extinct local lodge; (2) to provide that funds be set aside to carry out existing programs of a charitable nature which the local lodge may have been sponsoring; (3) to then use any surplus for the operation of the home at Mason City or for the purposes of Odd Fellowship.
The formation of the beneficial association by a number of the local lodge members and the transfer of the legal title to real property to them by the lodge alone did not affect the intended beneficial use thereof. The sole purpose of the transfer of title of the lodge building, it appears, was to protect revenue generated by the building rentals for the upkeep of the building and not to commingle it with other funds for social uses. Until 1965 the trustees had in no way interfered with that express use of the trust, which I contend would have been necessary to create a constructive trust or set the statute of limitations in motion.
The members of Lodge No. 18 and the Association individually and collectively had voluntarily created the express trust, and any amount of juggling, transferring, or manipulating of the corporate articles, short of a use adverse to the purposes of the trust, should not be considered an effective repudiation of the trusteeship. Such shenanigans should not be rewarded.
Finally, this is an action brought by the Grand Lodge as an interested party seeking to establish and declare that this property, the legal title to which had been transferred without its approval, was subject to the trust and had not been repudiated by the efforts of some rebellious members. I would declare the property remained trust property held by defendant Association for the charitable uses established by the express trust agreement and subscribed to by all the parties.