¶1dissenting:
¶2The demurrer to the complaint was sustained upon the ground that it appeared upon the face thereof that the action was barred by the statute of limitations.'. The action was brought to enforce a resulting trust, and it is contended by the appellant that the statute did not begin to run until the discovery by the plaintiff in May, 1908, that the deed delivered to him on the 16th day of January, 1903, was not what he thought it was and did not in fact convey to him the full undivided one-half interest in the entire lot. The plaintiff alleges in his complaint that he "relied upon the representations of defendant and did not make any further investigations into the facts of the purchase of said land than disclosed to him by defendant.” The complaint, however, nowhere alleges that at the time the defendant delivered the deed to the plaintiff in January, 1903, he made any representations to him whatever. Where the fraud is charged, based upon false representations, such representations must be specifically charged and proved as alleged. But even if there had been a specific charge of false representation upon the part of the defendant at the time the deed was executed and delivered by him to plaintiff, I doubt if that could be given any consideration under the facts which are admitted in this complaint.
¶3It is not disputed that, if the plaintiff had notice of the alleged fraud at the time he received his deed from the defendant, the right of action thereon was barred by the statute of limitations prior to the institution of this action. I do not think the plaintiff can be heard to say that he did not have notice of the contents of his deed at the time the same was delivered to him.
¶4There is nothing alleged in the complaint which, in my judgment, would excuse the plaintiff from the exercise of *473ordinary prudence and diligence. Such prudence and diligence required that he should examine his deed when it was delivered to him. If he had done so, it would have at once become apparent to him that the deed only conveyed a half interest in a portion of, and not in the entire, lot.
¶5It would, I think, be a dangerous rule to establish in land transactions to permit a grantee to excuse himself for. not knowing the contents of a deed, actually delivered to him, and thus prevent the running of the statute, simply upon his declaration of confidence reposed in the integrity and fair dealing of his grantor occasioned through their business relations such as alleged in the complaint. According to the complaint it was over five years before the plaintiff knew the contents of the deed which he received from defendant. If he could stop the running of the statute of limitations for five years by reason of his failure to read his deed, where is the limit of time to be placed beyond which he could not go?
¶6But even if it could be said that the plaintiff, under the alleged facts, is not chargeable with laches for his failure to examine and note the contents of his deed, nevertheless the statute of this state charges him with such notice. Section 24 of "An act concerning conveyances” (Cutting’s Comp. Laws, sec. 2663) reads: "Every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any real estate, or whereby any real estate may be affected, proved, acknowledged, and certified in the manner prescribed in this act, to operate as notice to third persons, shall be recorded in the office of the recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto without such record.” The foregoing section charges the parties to a deed with knowledge of its contents, and equity as well as law takes cognizance of such notice imputed by statute. (16 Cyc. 172; De Mares v. Gilpin, 15 Colo. 76, 24 Pac. 568; Bangs v. Loveridge, 60 Fed. 963; Johnson v. Fla. Transit Co., 18 Fed. 821.)
¶7Under the facts alleged in the complaint, I am of the 'opinion the plaintiff was chargeable with knowledge of the contents of the deed, both by the rule imposing ordinary prudence and diligence and by the statutory provision importing notice. *474The complaint charges that the deed was intentionally made to convey but a part of what should have been conveyed. This was an act inconsistent with the alleged trust and was in effect a repudiation thereof. Plence the statute of limitations began to run upon the delivery of the deed. (White v. Sheldon, 4 Nev. 280; Crowley v. Crowley, 72 N. H. 241, 56 Atl. 190; Felkner v. Dooly, 28 Utah 236, 78 Pac. 365; Tiffany & Bullard on Trusts and Trustees, p. 717; 1 Wood on Limitations, p. 132.)
¶8The judgment and order appealed from, in my opinion, should be affirmed.