I dissent.
Twice widowed Mrs. Lenora Moore Leahy and her two daughters, Agnes Moore and Catherine Moore, resided in Anaconda, Montana.
Eugene Miller, a bachelor of Dillon, Montana, thought kindly of the widow and her daughters.
In 1913 Agnes, the younger daughter, then aged eight and one-half years, went to Dillon to live in Miller's home. She continued *Page 143 to reside therein until 1925 when Miller died at the ripe old age of 85 years.
On July 19, 1921, Miller purchased for $4,500 a six-room residence and lot known as No. 701 Cherry street in Anaconda from Charles Dalberg and Selma Dalberg, his wife, causing the deed of conveyance from the Dalbergs, as grantors, to run direct to Agnes Moore, as grantee.
On November 18, 1924, Agnes Moore, as grantor, made, executed and delivered a deed conveying the property to her mother, Mrs. Lenora Leahy, as grantee.
On February 23, 1928, Mrs. Lenora Leahy, as grantor, made, executed and delivered a deed conveying the property to her daughter Catherine Moore as grantee. The deed was filed for record the following day, February 24, 1928.
By deed dated and acknowledged August 21, 1941, and filed for record November 30, 1942, Catherine Moore, as grantor conveyed the property to her husband Wiliam H. Boggs, as grantee.
On July 16, 1945, Agnes Opp, formerly Agnes Moore, plaintiff, commenced this action against her sister Catherine Boggs and the latter's husband, William H. Boggs, defendants, seeking decree: (a) That she be adjudged to be the owner of the described property; (b) that the deed of February 23, 1928, to Catherine and the deed of August 21, 1941, to William H. Boggs created a trusteeship in plaintiff's favor; (c) that each alleged trusteeship be terminated and that defendants be required to quitclaim title to the property to plaintiff; (d) that the deeds and record thereof to Catherine and to her husband be annulled as void and (e) that plaintiff's alleged title to the property be quieted.
In the fifth and sixth paragraphs of her complaint plaintiff, as to the deed from Catherine to her husband, William H. Boggs, recorded November 30, 1942, charges: "From the time of the recording of the last named deed the defendant wrongfully and unlawfully repudiated and denied plaintiff's ownership or interest in the property described in this complaint and since the recording * * * defendant wrongfully and unlawfully have asserted *Page 144 that the full ownership of the property * * * was conveyed * * * to William H. Boggs * * * but said last mentioned deed was madeand intended to defraud plaintiff out of her ownership in the property and * * * to prevent plaintiff from establishing that Catherine Boggs held legal title as a trustee for the plaintiff."
Thus does plaintiff, in this action, seek relief on the ground of fraud. "A party is bound by his pleading. He may not plead one thing and contend to the contrary." (Gilna v. Barker,78 Mont. 357, 254 P. 174, at page 178; Anderson v. Mace, 99 Mont. 421,45 P.2d 771; Worden v. Alexander, 108 Mont. 208,90 P.2d 160.) Likewise on appeal this court is bound by the pleadings and the theory on which the case was tried in the trial court and may not decide the appeal on another and different theory.
This being an action for relief on the ground of fraud, the action must be commenced within two years after the discovery by the aggrieved party of the facts constituting the fraud as provided in subdivision 4 of section 9033, Revised Codes of Montana 1935.
In her testimony at the trial plaintiff admitted that on December 5, 1942 (being more than two and one-half years before the commencement of this action), she discovered and learned that her sister Catherine had given a deed to the property to William H. Boggs.
Plaintiff Agnes also testified that in 1931 (being fourteen years before this suit was commenced) she discovered and learned that her mother had conveyed the property to Catherine by a deed that neither contained nor described any provision for a trust of any sort.
For their first defense defendants pleaded that this action "is barred by the provision of subdivision 4 of section 9033, R.C.M. 1935." Plaintiff's own testimony establishes the defense so pleaded.
There is nothing on the face of the deed of February 23, 1928, from Mrs. Lenora Leahy, grantor, to Catherine Moore, grantee, *Page 145 that in any manner indicates that the property therein described was being conveyed to Catherine as trustee. If Catherine gave her mother a valuable consideration for the transfer and if she had no knowledge the property was conveyed to her as trustee then she acquired good title to the property under section 6795, Revised Codes 1935, which provides: "Where an express trust is created in relation to real property, but is not contained or declared in the grant to the trustee, or in an instrument signed by him, and recorded in the office with the grant to the trustee, such grant must be deemed absolute in favor of purchasers from such trustee without notice, and for a valuable consideration." See 26 R.C.L., "Trusts," page 1296, section 148; Hillwig v. Boyer, 89 Cal. App. 314,264 P. 556 (construing a statute the same as section 6795, supra); Patterson v. McKeehen, 168 Okla. 252, 32 P.2d 875; Payne v. Allen, 178 Okla. 328, 62 P.2d 1227; 2 Perry on Trusts, page 1387, section 815c, notes 1 and 2.
The testimony of both Catherine and her mother is to the effect that Catherine had no notice of any alleged trust agreement between the mother and Agnes concerning the property.
The majority opinion holds: "The court erred in holding that the deed from plaintiff to her mother was a gift." No authorities are cited in support of the holding and same appears contrary to the rule obtaining in this jurisdiction where it is presumed that the conveyance was made as a gift from the daughter to her mother. See McQuay v. McQuay, 81 Mont. 311, 263 P. 683; Roman v. Albert, 81 Mont. 393, 264 P. 115; Clary v. Fleming, 60 Mont. 246,198 P. 546; Humbird v. Arnet, 99 Mont. 499,44 P.2d 756. See also section 6795, Revised Codes of Montana and 3 Scott on Trusts, sections 474-476.
If as she contends the plaintiff Agnes had a trust agreement with her mother, then clearly the deed of February 23, 1928, from the mother to Catherine and the deed of August 21, 1941, from Catherine to William H. Boggs violated such trust agreement and would constitute a fraud against the beneficiary *Page 146 Agnes. Section 7894, Revised Codes, provides: "Every violation of the provisions of the preceding sections [7888 to 7893] of this chapter is a fraud against the beneficiary." (Emphasis supplied.)
Under such circumstances plaintiff was required to commence her action for relief within two years after her discovery of the alleged fraud wrought by the breach of the alleged trust agreement by the making of the deeds conveying the property first to Catherine and thence to the latter's husband William H. Boggs. Subdiv. 4, sec. 9033, Rev. Codes 1935.
The evidence shows that the plaintiff Agnes has not been in possession of the house in question within ten years before the commencement of her action and that she has paid no taxes thereon during such time so that the trial court was further warranted in finding her action barred. See Anderson v. Mace, 99 Mont. 421,45 P.2d 771; Laas v. All Persons, 121 Mont. 43,189 P.2d 670.
Section 9015, Revised Codes, in part, provides: "No action for the recovery of real property, or for the possession thereof, can be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question within ten years before the commencement of the action."
Section 9016, Revised Codes, in part, provides: "No cause of action * * * arising out of the title to real property, or to rents or profits out of the same, can be effectual, unless it appear that the person prosecuting the action * * * or under whose title the action is prosecuted * * * or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within ten years before the commencement of the act in respect to which such action is prosecuted * * *."
Section 9024, Revised Codes, provides: "In no case shall adverse possession be considered established under the provision of any section or sections of this code unless it shall be shown that the land has been occupied and claimed for a period of ten years continuously, and the party or persons, their predecessors *Page 147 and grantors, have, during such period, paid all the taxes, state, county, or municipal, which have been legally levied and assessed upon said land."
The trial court found that plaintiff's action was barred by sections 9015, 9016 and 9024, Revised Codes, supra, as pleaded by the defendants.
The evidence in this case is conflicting but the resolution of such conflicts was for the trial court.
The plaintiff Agnes testified: That her mother advised her that in the event of the death of Eugene Miller his heirs might claim the property which had been purchased by Miller but conveyed direct to her; that plaintiff then conveyed the property to her mother, at which time both the mother and Catherine were living in the house conveyed; that thereafter the taxes were always paid by her mother and Catherine; that in 1925 she married at Dillon and continued to reside there until 1929; that she received no money from her mother for the deed conveying the house to the mother; that in 1931 she learned her mother had conveyed the property to Catherine; that her mother and Catherine took a trip east and upon their return plaintiff discussed with Catherine the conveyance from the mother to Catherine and that Catherine then said "You know, Agnes, that is your house and any time you want it you can have it" and that she thinks her mother heard such conversation. The mother denied being present at any such alleged conversation. Catherine also denied any such conversation with Agnes.
Plaintiff Agnes further testified: That upon her return to Anaconda in 1929 she took up her residence on East Fourth Street in a house in which she had an interest and that she continued to reside there to the time of the trial herein and that on December 5, 1942, she received information through the mail informing her that Catherine had deeded the house at 701 Cherry street to her husband, William H. Boggs. Agnes also described an alleged interview which she says she then had with Catherine concerning the last mentioned deed. Catherine *Page 148 denies such alleged interview and denies making the alleged statements which Agnes says she then made.
Agnes admitted that she never received any rent for the house at 701 Cherry street. She detailed an interview with Catherine in May 1945 regarding the use of the garage. Catherine admitted this interview but she did not admit all the statements which Agnes says she then made.
On cross-examination Agnes testified: That the defendants, William H. Boggs and Catherine, his wife, moved into the house in question in September 1937; that in 1939 defendants commenced repairing and improving the house and continued making extensive repairs and improvements thereon for several years; that she made no protests and that she paid no part of the cost of such repairs and improvements and that in a conversation she had with Boggs in 1942 he told her that Catherine claimed she owned the house. Agnes also admitted that in 1929 a new roof was put on the house; that electric wiring was installed and other improvements made and that the cost thereof was all paid by Catherine or her husband.
On redirect examination Agnes testified that from March 1937 to May 1945 she used the garage at 701 Cherry street and that she paid $3 per month rent therefor for about a year.
Agnes also testified that Eugene Miller owned an undivided one-half interest in four houses and that he also owned six other houses all situated in Anaconda and that before they moved into the house at 701 Cherry street her mother, Lenora Leahy, and her sister Catherine lived in one of Miller's houses.
The mother, Lenora Leahy, testified: That Agnes conveyed the Cherry street property to her to avoid the possibility of claims by Miller's heirs; that she (Mrs. Leahy) never talked with Catherine about the deed from Agnes to her and that Miller, as a gift, conveyed to her and to Catherine each a one-half interest in two houses situated on Fourth street in Anaconda and that the other one-half interest therein was owned by an Alec McCabe.
The deed to the Cherry street property from Agnes to her *Page 149 mother was drafted by and acknowledged before the late Senator T.P. Stewart, a long time and able member of the bar of this court. Concerning such deed Lenora Leahy testified:
"Q. Did you tell Mr. Stewart you wanted to take that as trustee for Agnes? A. No, there wasn't supposed to be atrustee. * * *
"Q. Did she tell Mr. Stewart anything? A. No.
"Q. Did Mr. Stewart do what Agnes told him to do? A. I suppose he did."
The deed to the Cherry street property from Mrs. Leahy to her daughter Catherine was drafted by and acknowledged before J.C.B. Knight, Esq., also an able, careful and long time member of the bar of this court. Regarding such deed Mrs. Leahy testified:
"Q. Did Mr. Knight do just what you told him at that time? A. Yes.
"Q. Does this deed, which is here in evidence as plaintiff's exhibit 4, express everything you told Mr. Knight? A. I guess so."
Attorney J.C.B. Knight testified: "Mrs. Leahy came to me for the purpose of having this deed drawn and acknowledged, and I placed a consideration of one dollar on there according to their instructions.
"Q. Did Mrs. Leahy, at the time and place that the deed, plaintiff's exhibit 4, was drawn by you, tell you that she held the property as trustee for Agnes Opp? A. No she didn't.
"Q. Did she say to you that she wanted to transfer her trust in that property to Catherine Moore? A. No, she didn't * * *
"Q. Did either Mrs. Leahy or Miss Moore ask you to draw a deed of trusts? A. No, sir.
"Q. Did either of them ask you to draw a deed, transferring an interest of a trustee from one trustee to another? A. No, they didn't.
"Q. Did either Mrs. Leahy or Miss Moore, at the time of *Page 150 that deed, mention any interest of Agnes Opp in or to the property described in that deed? A. No, they didn't."
Consideration for Deed. Mrs. Leahy admitted that subsequent to her conveyance to Catherine of the property at 701 Cherry street, Catherine gave her a deed for Catherine's one-half interest in the Fourth street property which Mrs. Leahy later sold to one Eck for $1,200 and kept and used the money.
Catherine testified that with her own money she bought and paid for 20 shares of Anaconda stock (now worth about $2,000) which she delivered to her mother which the mother now has and on which she collects all the dividends. Mrs. Leahy admits she has a certificate for 20 shares of Anaconda stock but denied that Catherine bought the stock, testifying she had acquired same from the estate of her deceased husband, Mr. Leahy. The inventory and the decree of distribution in Mr. Leahy's estate were introduced in evidence and neither list nor show that Mr. Leahy owned any Anaconda stock at the time of his death.
Catherine also testified that she gave her mother certain certificates of stock in Western Building and Loan Company and that she gave her a check for $1,700 as her mother was leaving for Sioux City, Iowa, which check the mother cashed. Mrs. Leahy denied that Catherine gave her the check for $1,700 or that she had given her any other check and testified that she did not know that Catherine ever had any money in the bank. On her cross-examination however, Mrs. Leahy was shown six bank checks all payable to her order and drawn by Catherine, all of which had been paid by the bank. Thereupon she admitted her signature endorsing one of the checks, Exhibit h-4, but denied having endorsed the remainder. Later she changed her testimony, denying her signature on the check, Exhibit h-4, dated October 12, 1926 and admitting that she signed her name endorsing Exhibit h-6, being a check drawn by Catherine bearing date of April 11, 1927.
The defendant William H. Boggs testified: That he made repairs and improvements on the house amounting to a total of $3,526.84; that Agnes paid no part of the cost of such repairs *Page 151 and improvements; that he paid the taxes on the property from 1937 to 1945 as is shown by the tax receipts which he introduced in evidence; that Agnes never objected to his doing of any of the repairs or improvements and that at no time prior to the commencement of this action did she claim to be the owner of the property; that he had no discussion with Agnes about the house and that the deed given him by Catherine was to avoid a possible dispute with the labor union as he was doing the repair work himself on the house and also to get away from probate.
Catherine identified seven checks payable to the order of her mother and introduced in evidence as original exhibits and testified that six of them were endorsed by her mother and that the seventh check, Exhibit h-2, was endorsed by Catherine and deposited for her mother.
The trial court had the advantage of seeing the witnesses upon the stand and hearing them testify and as stated in Payne v. Allen, supra, under most similar facts: "The trial court heard the testimony of all of the parties and found the issue in favor of the defendant, Allen, and where a man contends that he is a bona fide purchaser of land without notice of the claims of third persons and the trial court makes a general finding in his favor, such finding will not be disturbed by the appellate court where there is reasonable testimony to support the findings of the court." See also Watkins v. Watkins, 39 Mont. 367, 102 P. 860.
I find no prejudicial error in the record before the court on this appeal. I therefore see no justification for remanding the cause for further proceeding or a new trial of issues already once thoroughly threshed out in the trial court. On these issues there was and will continue to be real and irreconcilable conflicts. Wherein lies the truth the district judge and not this court must say. The judgment of the trial court should be affirmed.
Rehearing denied May 27, 1948. *Page 152