No. 14651 

IN THE: SUPHEME COUF!!I' OF THE STATE OF IvKNWNA 

1979 

CHARGES GLJ3JNIE and PETER mIE, 

Plaintiffs and Appellants, 

-VSTHE: GLENNIE RANCHES, 

Defendants and Respondents. 

Appeal froan: District Court of the Fourteenth Judicial District, 

Hon. Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Josephson and F'redricks, Big Timber, Wntana 

Richard W. Josephson argued, Big Timber, Wntana 

For Respondents: 

Kline & Niklas, Helena, mntana 

David Niklas argued, Helena, mntana 

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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 Sweetgrass Counties. 

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 "Glennie Bros., 

a copartnership, consisting of George Glennie and Peter 

Glennie"; a second deed conveyed land to "George Glennie and 

Peter Glennie doing business under the name of Glennie 

Brothers"; and a third deed conveyed land to "George Glennie 

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 respective partners. 

On January 27, 1939, Peter Glennie Sr. died intestate, 

and was survived by a widow, Agnes, and two minor 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 sale was held on July 27, 1940, and George 

Glennie Sr. entered the highest bid. An order confirming 

the sale was filed on September 9, 1940; and on October 1, 

1940, the administratrix deeded 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 George M. 

Glennie. On May 17, 1956, George Glennie Sr. and George M. 

Glennie instituted a quiet title action which 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, a Montana corporation. The 

property in question has at all times been used for farm and 

ranch purposes. 

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 

deposit box 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 

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M. Glennie of Glennie Ranches requesting information about 

their possible interest in the property. On March 28, 1973, 

George M. 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 cotenant must 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 it merely 

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. It provides that 

no action for the recovery or for the possession of real 

property can be maintained unless it appears that the plaintiff, 

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his ancestor, predecessor, or grantor was seized or possessed 

of the property in question within five years before the 

commencement of the action. In Thibault v. Flynn (1958), 

133 Mont. 461, 325 P.2d 914, we held that when possession is 

open, notorious and continuous, the one whose land is 

encroached upon has a cause of action that must 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 for partition of the property almost 38 years after 

the estate's one-sixth interest had 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 

Glennies were 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: 

jhief Justice 

Hon. Gordon Bennett, District 

Court Judge, sitting in for 

Mr. Justice John Conway 

Harrison