I dissent.
I dissent from the judgment and from that portion of the opinion which holds that the action is not barred by the statute of limitations. (Code Civ. Proc., sec. 341, subd. 3.)
I agree with the opinion that the right of the plaintiff to maintain this action in partition is necessarily predicated on her present right to the possession of the property involved. Her claim of present right to possession is in turn necessarily predicated upon the claim that the "action taken or performed by a majority of the trustees," in August, 1913, whereby they surrendered the possession of the property to the revived corporation, was invalid. Therefore I think that this action is one to "invalidate the action taken by a majority of the trustees," and comes within the terms of the statute.
The plaintiff recognized this, and in her complaint she alleges the invalidity of this transfer. She also recognized that this statute is applicable and sought to avoid it by alleging that this transfer was fraudulently made; but the trial court found against her on that issue. She also sought to avoid the statute by alleging that she had no knowledge of this transfer until April, 1918, but the trial court made no finding on this issue. The trial court expressly found that the said transfer was made by the trustees "in violation of their duties as trustees." This was in effect a finding that said transfer was invalid.
With respect to the question of the applicability of this statute of limitations, the case of Rossi v. Caire, 186 Cal. 544 [199 P. 1042], is precisely analogous to the instant case. That was an action against the director trustees for an accounting and distribution of the assets. In order to maintain that action it was necessary to hold that the plaintiff was entitled to the present possession of those assets (just as it is necessary here to hold that the plaintiff is entitled to the present possession of the real property). That action was, therefore, an indirect attack upon the validity of the transfer made by the trustees in August, 1913, just as this action is an indirect attack upon the validity of the same action taken and performed by the same trustees.
The decision of this court in that case holds that this statute is applicable to that case, but holds also that the *Page 530 plaintiff therein was relieved from the operation of the statute because of the fact that he commenced his action within a reasonable time (one month) after the taking effect of the statute. Applying the same rule to this case wherein the action was not commenced until ten months after the statute took effect, we should hold that it is barred.
The effect of this decision, together with the two which preceded it in the Rossi cases, is that all corporations which forfeited their charters prior to 1913, and thereafter revived them, became thereby divested of all their property and assets. As a matter of substantive law, they could reacquire such title only by means of conveyances from all of their stockholders. In the case of corporations having a large number of stockholders this would be a practical impossibility. I presume that it was to meet this very situation that this statute of limitations was enacted, to operate as a statute of repose and to afford a practical means by which the property of a revived corporation would, in effect, become revested in it, after the lapse of six months, unless some action should be instituted in the meantime. The strict and narrow construction adopted in the main opinion has the effect of nullifying the statute to the extent that it might afford a practical remedy for the unfortunate situation above referred to.
This court has frequently declared that "statutes of limitation are vital to the welfare of society, and are favored in the law." It seems to me proper that this one, at least, should be liberally construed with a view to make effective the evident purpose thereof.
Rehearing denied.
All the Justices present concurred.
Richards, J., pro tem., was acting. *Page 531