106 P. 669 | Utah | 1910
The respondent, in substance, alleged in his complaint that at the time of the commencement of the action he was the owner and entitled to the possession of a certain parcel of land in Salt Lake County, describing it; that the defendants, including the appellants, claimed and asserted some estate or interest in and to said premises adverse to the respondent; that such claim was without right, and that said defendants, nor either of them, had any estate, right, title, or interest whatever in said premises. Upon these allegations respondent prayed that the defendants be required to set forth the nature of their said claims; that it be adjudged that the respondent is the owner of said land, and that the defendants, nor either of them, have any estate or interest whatever therein; that they, and each of them, be enjoined from asserting any claim whatever adverse to respondent in said premises, and for general relief. To the foregoing complaint Frank E. McGurrin, Jennie D. McGurrin, Stephen Hays, and Mary Hays, who are, and hereinafter will be, styled appellants, demurred upon substantially the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the complaint
When the case came on for trial, the appellants by their counsel “objected to the introduction of any evidence under the complaint in this case, for the reasons set forth in our demurrer.” Counsel then stated the grounds of the objection substantially as they are stated in the demurrer, which we have already set forth. The objection was overruled, and counsel saved an exception. The respondent, in support of his allegations of ownership, then offered in evidence the rcord of a patent, in which the land in question, with other land, was, by the United States, conveyed to one Lorenzo Pettit of Salt Lake County. Counsel for appellants ob-eeted to the introduction in evidence of this patent, upón the
The first assignments of error to be noticed are that the court erred in overruling the demurrer of appellants, and in denying their motion for nonsuit. The grounds stated in both the demurrer and motion for nonsuit blend, and may be considered together. The action is based on section 3511, Comp. Laws 1907, which is as follows: “An action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.” Counsel for appellants earnestly contend that an action to quiet title is purely equitable ; that in such an action the courts have always held that it was necessary for the plaintiff to allege and prove that he was in possession of the real property in question; that if the plaintiff was not in possession, his action was one in ejectment to try title and to oust the defendant; and that section 3511, supra, does not change the rule. We cannot agree to this contention.
The Supreme Court of California, in Castro v. Barry, 79 Cal., at page 446, 21 Pac. 946, clearly points out the distinction between an action under section 3511 and the ancient action to quiet title. In an action based on section 3511 the plaintiff need not allege possession, nor need
“The manifest intent of the statute ... is that any person owning real property, whether ini possession or not, in which any other person claims an adverse title or interest, may bring an action against him to determine the adverse claim and to quiet the plaintiff’s title. It extends to cases in which the plaintiff is out of possession, and the defendant is in possession, and in which, at common law, the plaintiff may have maintained ejectment. An allegation, in ordinary and concise language, of the ultimate fact that the plaintiff is the owner in fee is sufficient, without setting out matters of evidence, . . . and an allegation that the defendant claims an adverse estate or interest is sufficient, without further defining it, to put him to a disclaimer.”
Tbe section was also referred to by Mr. Chief Justice Straup in Wey v. Salt Lake City, 101 Pao. 381, 35 Utah 504, where it was held that section 3511 has “enlarged tbe ancient jurisdiction of courts of equity in respect of suits to quiet title and to determine adverse claims.” Tbe foregoing is in strict harmony with tbe bolding of tbe Supreme Court of tbe United States, as is manifest from what we have quoted from that court, and is likewise in harmony with tbe bolding of tbe Supreme Court of California, as appears from tbe case cited and from other cases. Without referring to other cases it is sufficiently clear that under tbe authorities tbe complaint stated a cause of action, and tbe court therefore committed no error in overruling tbe demurrer.
Tbe contention that because respondent relied wholly upon bis legal title tbe action was one at law, and not in equity, and that appellants were therefore entitled to a jury trial, in view of tbe record, is not tenable. Assuming, without deciding, that where in an action based on section 3511 a plaintiff relies upon bis legal title merely, tbe defendant is entitled to a trial by jury, yet that question is not properly before us for determination. In this state a jury in civil actions is waived unless demanded. Section 10, art. 1, of tbe Constitution provides that “a jury in civil eases shall be waived unless demanded.” Pursuant to this provision, section 3129, Comp. Laws 1907, was adopted. That section, in substance, provides that a jury must be de
It is also asserted that there is no evidence to sustain the court’s findings that the respondent was entitled to the possession of the land in controversy. We have already pointed out that a party out of possession may bring an action under, section 3511, as well as one in possession, and that he need not allege that he is in or entitled to possession. If this need notJ5e alleged, it need not be proved. So far as appellants were concerned, it was quite sufficient if the respondent established that the .legal title, was in him, and that the appellants had no right, title, or interest adverse to him in the premises in controversy. If they had no valid claim to, or interest in, the premises in question, the
The contention that the finding of the court that the property described in the complaint was included within the description contained in the patent introduced in evidence is not supported by evidence cannot be sustained. It is true that there was no direct evidence offered by respondent to show that the property described in the complaint was included in the patent which was introduced in evidence. Such proof was, however, made unnecessary by the admissions of appellant’s counsel, the substance which we have set forth in this opinion. The admissions made
All tbe other assignments made by appellants, except tbe one relating to the bill of exceptions, are covered by what has already been said, and hence need no further consideration. Tbe contention that tbe court erred in incorporating certain matters into tbe bill of exceptions, in review of tbe result reached, is immaterial. Nor is it necessary to refer to respondent’s assignment of cross-errors. These, as well as all other objections urged by him, are immaterial, in view of tbe result.
Tbe judgment is therefore affirmed, with* costs to respondent.