152 P. 1180 | Utah | 1915
This was a proceeding based on Comp. Laws 1907, sections 2021 to 2028, inclusive, to determine the alleged claim of the , defendant as an occupying claimant of the improvements placed on a certain lot in Salt Lake City.
Harry Lawrence transferred his interest in the lot to one Franklin Lawrence, a nonresident of the State of Utah, and he later, in 1908, commenced an action in equity to quiet title to the lot in himself. In that action Lawrence obtained service by publication, and upon such service obtained a decree quieting the title in himself. The defendant succeeded to whatever interest said Lawrence had in the lot in question by transfer from said Lawrence. The plaintiff thereafter commenced this action in equity in the district court of Salt Lake county to set aside the decree obtained by. Lawrence wherein the title was quieted in Lawrence, and in which action plaintiff also prayed that the .title be quieted in him. That action was predicated upon fraud, which, it was alleged, had been committed by making and filing a false affidavit for the purpose of obtaining service by publication upon the plaintiff, Doyle, who then was a resident of the state of Utah. It was stated in the affidavit, however, that he was a nonresident of the state, and that his place of residence was unknown. The district court, upon a hearing, found that the former decree was obtained by fraud, and upon that ground set the same aside, and entered a judgment quieting the title to the lot in question in the plaintiff. The defendant appealed from that judgment to this court, where the judgment was affirmed. See Doyle v. Terrace Co. et al., 43 Utah, 277, 135 Pac. 107. After the remittitur went down to the district
of the instructions given by the court.
The instructions excepted to are as follows:
“ (6) You are instructed that section 2024 of the Compiled Laws of this state defines color of title as follows, to wit: ‘A purchaser in good faith at any judicial or tax sale, made by the proper person or officer, has color of title within the meaning of this chapter, (7) whether such officer or person has sufficient authority to sell or not, unless such want of authority was known to such purchaser at the time of the sale, and his rights shall pass to his assignees or representatives.’ ”
“ (9) The West Temple Terrace Company bases its claim under a color of title under a tax sale and judgment quieting title in said Lawrence, and that it made these improvements while in good faith believing said sale valid. You are instructed that one of the matters to be determined by you is the good faith of the officers and agents of that corporation, and’ the burden is upon said company to establish by a preponderance of the evidence that its officers and agents at the time they made the improvements, honestly believed that their company had a valid title to the lots, and if it shall fail to establish that at the time of making the improvements they so acted in good faith, or if you shall believe that the officers and agents of the West Temple Terrace Company at the time the improvements were being made knew or had such information that a reasonably prudent person acting upon it would have known that they did not own said property and the title had not passed from J. L. Doyle by said tax sale or judgment, then you should find the issues for the plaintiff. ’ ’
“For the reason that said instruction limits color of title to the definition of the statute, to wit, ‘a purchaser in good faith at tax sale. ’ ’ ’
Exception was also taken to that part of instruction No. 9 reading as follows:
“ ‘Or, if you shall believe that the officers and agents of the West Temple Terrace Company at the time the improvements were being made knew or had sueh information that a reasonably prudent person, acting upon it, would have known that they did not own said property and the title had not passed from J. L. Doyle by said tax sale, then you should find the issues for the plaintiff; ’ limiting their application to the passing of the title from said J. L. Doyle to the tax sale, and eliminating from consideration the quitclaim deed from J. L. Doyle, offered in evidence. That is all! ’ ’
When instruction No. 9 was first read to the jury, the words in italics were omitted therefrom. Counsel then noted his exceptions as given above, and the court then amended the instruction by inserting the words in italics, and submitted the same to the jury as amended. No further exception was noted after the instruction was thus amended.
At the trial the defendant produced a quitclaim deed for the premises in question from one J. L. Doyle. It was conceded when the deed was produced, however, that the same was a forgery, but the court, nevertheless, admitted the same in evidence over the objection of plaintiffs’ counsel. This is the deed referred to by counsel in defendant’s exception to the instruction which we have quoted above.
Section 2021, supra, provides:
“Where an occupant of real estate has color of title thereto, and in good faith has made valuable improvements thereon, and is afterwards in a proper action found not to be the owner, no execution shall issue to put the plaintiff in possession of the same after the filing of a petition as hereinafter provided, until the provisions of this chapter have been complied with.”
The court in its charge defined color of title as the same is
“ (7) You are instructed that in-this action the West Temple Terrace, Company claims that it in good faith erected the improvements on the premises herein referred to. The court has defined to you in its instructions what is meant by good faith, and in determining the good- faith of the petitioner you should take into consideration all the facts and circumstances as shown by the evidence received herein which bear on the question of such good faith, and from these facts determine whether, at the time all the improvements were being made the defendant honestly believed it owned the property. You are further instructed that, if it did not in good faith honestly believe that it owned said real estate while said" improvements were being made, then your verdict should be for the plaintiff.”
In view of the foregoing charge, we hardly grasp the force of counsel’s assignment of error in which he says that the court erred because it “eliminated from the consideration of the jury, the question of the good faith of the defendant based on the quitclaim deed from J. L. Doyle. ’ ’ As already stated, the defendant limited its claim in its petition to recover as an occupying claimant to the tax deed and to the judgment which had been set aside. It did not mention the quitclaim deed in its petition. The court, in stating defendant’s allegations upon which it based its right to recover for the improvements as an occupying claimant, therefore limited its claims to those mentioned in its petition. We cannot see how that constituted error. The court certainly was not bound to enlarge upon defendant’s claims in the charge to the jury. To state its claims- as they were stated in the petition certainly was all the defendant could ask. That is what it received. Moreover, the forged quitclaim^ deed was offered by the defendant and admitted in evidence by the court merely as .evidence of good faith. In the instruction to the jury upon that question, which we have set forth, the court specially directed them to consider all the evidence upon the question of good faith. The defendant might just as well contend now that, because the court did not specially men
The record before us, therefore, presents a case where the jury could have found an entire lack of good faith in making the improvements. They could have also found that every act of the defendant and its predecessors in interest,, through whom it claims, clearly indicated that it, without any legal right, attempted to deprive the plaintiff of his property. Its tax deed was void upon its face, which was well known. In order to overcome that defect a decree quieting title in its predecessor was obtained.by fraud. Again, the jury eould also have found that the defendant had received back all that it had advanced, and hence had lost nothing and could lose nothing. . Whatever view that may be taken, therefore, both the verdict and judgment are just so far as the defendant is concerned. Whatever the plaintiff obtains for which he perhaps cannot legally be required to pay he obtains through defendant’s wrong, and not through any'fault of his.
There is but one result permissible, and that is the affirmance of the judgment. Such is the order; plaintiff to recover costs on appeal.