[236 U.S. 211, 212] Mr. Charles E. Miller for plaintiff in error.
Mr. James H. Forney for defendant in error.
Mr. Chief Justice White delivered the opinion of the court:
Concerned now only with a motion to dismiss, we limit our statement to that which is essential to decide such issue. In 1912 the Olympia Mining & Milling Company, Limited, the plaintiff in error, brought this suit to enforce a trust agreement between Kerns, the defendant in error, and one Cunningham, by which it was alleged Kerns had obliged himself in 1901 to transfer to Cunningham certain property then owned or to be acquired by him, for a designated consideration, Cunningham to put the title to the property when transferred in the name of a corporation to be by him organized, of which Kerns was to have a stated proportion of the stock. The bill was generally demurred to and state statutes creating terms of limitation of three, four, and five years were expressly set out in the demurrer as barring all right to the relief sought. In years were expressly set out in the demurrer as barring all right to the relief sought. In reviewing the action of the trial court in sustaining the demurrer the court below held that the statutes of limitations were decisive. 24 Idaho, 481, 135 Pac. 255. From the averments of the bill and facts disclosed in its previous records concerning the controversy, the time when the term of the statutes commenced to run was determined by the court to be August, 1904, because on that date Kerns made a sale of a portion of the property embraced by the trust agreement and at the same time had bound himself to sell it all,-obligations which were held to be a repudiation by him of the trust agreement, and in fact constituted a disclaimer of all obligation under it. It was held that by a suit brought in 1905, by which Cunningham was bound, it was judicially admitted that at that time there was a [236 U.S. 211, 215] default in carrying out the trust agreement on the part of Cunningham or those holding with or under him, and a knowledge on their part of the disclaimer of all obligation by Kerns,-conclusions which caused the statutes to be operative, since, from the date of the starting point, 1904, to the date of the bringing of the present suit, in 1912, more than the statutory periods had elapsed.
Briefly stated, two propositions are relied upon: First, that causing the term of the statutes to commence to run from the year 1904 was a violation of the due process clause of the 14th Amendment because at that date the corporation was not in existence, and hence was without capacity to take and hold the property embraced by the trust agreement. Second, as the state statutes of limitations, generally speaking, did not run against minors or incapacitated persons, to cause the term to commence to run against the corporation before it came into existence and had capacity to take the property was a denial of the equal protection of the laws under the 14th Amendment. But without in the remotest degree admitting that these propositions afford the slightest ground for converting such a purely state question as the operation of statutes of limitations upon real property situated in a state into Federal questions giving rise to jurisdiction of this court to review, there is obviously in any event no jurisdiction, because in no manner and at no time were the alleged Federal questions, be they real or imaginary, presented or even remotely suggested to the court below. Appleby v. Buffalo, 221 U.S. 524, 529 , 55 S. L. ed. 838, 840, 31 Sup. Ct. Rep. 699. In the argument this is admitted, but it is said the propositions ought now to be treated as adequate to confer jurisdiction, because there was no opportunity to urge or suggest them in the courts below. Again, without conceding the merit of the suggestion if founded in fact, it is here plainly not so founded, since the statutes of limitations which were upheld by the court below were in express terms stated in the [236 U.S. 211, 216] demurrer filed in the trial court, and yet the record is silent as to any suggestion of assumed Federal right until after the decision below, when the assignments of error were made for the purpose of a review by this court.
Dismissed for want of jurisdiction.