                                      No. 14651

              I N THE: SUPHEME C U !I
                                O F!'    OF THE STATE OF IvKNWNA

                                        1979



CHARGES GLJ3JNIE and PETER m I E ,

                     P l a i n t i f f s and Appellants,

       -VS-

THE: G E NE RANCHES,
      LN I

                     Defendants and Respondents.



Appeal froan:    D i s t r i c t Court of the Fourteenth Judicial D i s t r i c t ,
                 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

                                             -~               -




                                             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
                             -3-
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,
                               -4-
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:




       j h i e f Justice




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