No. 14651 INTHE: SUPHEME COUF!!I' OF THE STATEOF IvKNWNA 1979

CHARGESGLJ3JNIE andPETERmIE, PlaintiffsandAppellants,

-VSTHE: GLENNIE RANCHES, Defendants

### andRespondents.

Appeal froan: DistrictCourt of theFourteenthJudicialDistrict, Hon. NatAllen, Judgepresiding. Counselof Record: ForAppellants: Josephson

### andF'redricks, BigTimber, Wntana RichardW. Josephson argued, BigTimber, Wntana For Respondents: Kline &Niklas, Helena, mntana DavidNiklas argued, Helena, mntana

-~ - Submitted: May3, 1979 Decided:Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Charles Glennie and Peter Glennie (herein referred to

as the Glennies) appeal from an order of the Wheatland County District Court granting Glennie Ranches' motion for summary judgment. The District Court granted summary judgment on several grounds,but the ruling that the statute of limitations

(section 70-19-401, MCA) had run is dispositive of this appeal. This case involves a dispute over the ownership of a large tract of land in Wheatland and SweetgrassCounties. In 1932, 1934 and 1937,three tracts of land were conveyed to George and Peter Glennie, and used as ranch and farm property. One of the deeds conveyed land to "GlennieBros.,

a copartnership, consisting of George Glennie and Peter Glennie";a second deed conveyed land to "George Glennie and Peter Glenniedoing business under the name of Glennie Brothers"; and a third deed conveyed land to "GeorgeGlennie and Peter Glennie jointly." The Glennie Brothers operated the Glennie Ranches as a partnership. There is no evidence, however, that the brothers reduced their partnership agreement to writing, nor is there any evidence as to the contributions of the respectivepartners. On January 27, 1939,Peter Glennie Sr. died intestate, and was survived by a widow, Agnes, and twominor sons,Peter Jr. and Charles. George Watson, who died shortly after being appointed administrator of the Peter Glennie Sr's. estate,filed an estate inventory which stated that Peter Glennie Sr. owned a one-sixth interest in the property transferred to George and Peter Glennie in 1932, 1934 and 1937 (herein referred to as the partnership property). Agnes Glennie succeeded Watson as administratrix of the estate, and was appointed legal guardian for Peter Glennie,Jr. and Charles Glennie. On June 29, 1940,Agnes Glennie petitioned the District Court for permission to sell the estate's one-sixth interest in the partnership property, and the court granted this petition. The salewas held on July 27, 1940,and George Glennie Sr. entered the highest bid. An order confirming the salewas filed on September 9, 1940; and on October 1, 1940, the administratrixdeeded the estate's one-sixth interest to George Glennie, Sr. Over the years,many transactions took place concerning the property in question. On March 1, 1955,George Glennie Sr. conveyed the property to himself and his son GeorgeM. Glennie. On May 17, 1956,George Glennie Sr. and George M. Glennie instituted a quiet title actionwhich resulted in a judgment giving them clear title to the property. On January 1, 1962,George Glennie Sr. and George M. Glennie conveyed the property to Glennie Ranches, aMontana corporation. The property in question has at all times been used for farm and ranchpurposes. The Glennies,who did not claim any interest in the property between 1940 and 1973, found a handwritten note addressed to them from their deceased mother in her safety depositbox informing them that they had a one-third interest in the property held by Glennie Ranches. They had contacted an attorney in Billings, concerning the note and

on March 

### 8, 1973, they wrote a letter of inquiry to George -3-M. Glennie of Glennie Ranches requesting information about their possible interest in the property. On March 28, 1973, GeorgeM. Glennie had his attorney write to the Billings attorney informing him that Glennie Ranches claimed a fee simple absolute interest in the property. The letter stated that Peter Glennie Sr. had owned only a one-sixth interest in the property, and that as a result of the sale of that interest by the estate, the Glennies had no further claim in the property. On April 20, 1978,the Glennies instituted an action in Wheatland County District Court for partition of the property;

or in the alternative, for the sale of the property and a division of the proceeds. On November 24, 1978, the District Court granted summary judgment for Glennie Ranches, based in part on the statute of limitations. The Glennies contend that a different statute of limitations is applicable to this case,namely the right of a cotenant to file an action for partition under section 70- 29-101,MCA. By this statute,there is no time limit in which a cotenantmust file an action for partition. Section 70-29-101,MCA, provides that a cotenant who holds and is in possession of real property may bring an action for partition. No time limit is set for bringing the action. Rather than being a statute of limitations itmerely sets forth the generally recognized rights of a cotenant - in possession to file a partition action. The action in the instant case is one for the recovery of an interest in real property, and section 70-19-401, MCA, is the applicable and controlling statute. Itprovides that

no action for the recovery or for the possession of real property canbe maintained unless it appears that the plaintiff, -4-his ancestor,predecessor, or grantorwas seized or possessed of the property in question within five years before the commencement of the action. In Thibaultv. Flynn (1958), 133Mont. 461, 325 P.2d 914,we held that when possession is open,notorious and continuous, the onewhose land is encroached upon has a cause of action thatmust be exercised within the time limit set by this statute. On October 1, 1940,Agnes Glennie as administratrix deeded the estate's one-sixth interest in the property to George Glennie, Sr.; and the estate was no longer seized or possessed of the property, and any cause of action would have arisen at that time. The Glennies instituted their action forpartition of the property almost 38 years after the estate's one-sixth interesthad been deeded to George Glennie, Sr. Clearly, section 70-19-401,MCA, bars their action. The Glennies contend that the statute of limitations did not begin to run until they had actual notice of Glennie Ranches exclusive claim to the property. They cite no authority for this theory. Assuming arguendo,however, that the statute of limitations did not begin to run until the Glennies had actual notice, the Glennies' action for partition of the property is nonetheless barred. The March 28, 1973 letter gave the Glennies actual notice that Glennie Ranches

were claiming exclusive interest in the property. The Glennieswere fully aware of the situation giving rise to this lawsuit in late March 1973. They did not commence their action until April 20, 1978,and are barred even under their

own theory of actual notice. The order of the District Court granting summary judgment is affirmed.We Concur:

jhiefJustice

Hon. Gordon Bennett, District Court Judge, sitting in for Mr. Justice John Conway Harrison