6 Utah 446 | Utah | 1890
Lead Opinion
This action was brought by the plaintiff in the third district court to quiet title, under sections 3468 of the Compiled Laws of 1888 (section 620, Practice Act). The land in dispute is lot 6 and part of lot 5 in block 19 of' what is known as “Brighton Five Acre Farming Plat.” The complaint avers the ownership and possession and right of possession of the plaintiff. It further avers that the property belonged to-one Joseph A. Young on the 23d day of February, 1874, and that on that day it was conveyed by said Young to one Henry A. Grow, and after-wards by Grow to plaintiff, and that the defendant claims some interest or estate in said lands adversely to the plaintiff, but that such claim is without right or equity; and prays that the defendant be required to set forth the nature of her claim, and that it be adjudged to be invalid, and that the right and title of the plaintiff be established. The defendant answered, and denied all the allegations of' the complaint, and averred that the defendant was the
Tbe plaintiff claims tbat tbe findings of fact are not supported by tbe evidence. "W e have examined tbe records, and, if tbe evidence can be considered by tbe. court, we think tbat it fully supports the findings; but it is further contended tbat tlie court erred in receiving the testimony relative to tbe possession of tbe lands before tbe patent was issued, and in relation to tbe error in the description by metes and bounds in tbe Grow deed, and as to what was intended by it. It will be seen tbat both parties are claiming by grant from Joseph A. Young; that tbe deeds under wbicb they claim were made at tbe same time — tbe one to tbe defendant’s grantor, describing tbe property in controversy by lots and blocks; tbe one to the plaintiff’s grantor, by metes and bounds, wbicb, according to the correct survey, describes and conveys tbe same property, but witb a further description, wbicb does not agree witb tbe first. The plaintiff claims under tbe calls in bis deed by metes
Concurrence Opinion
A petition for a rehearing was filed in this case by the attorneys for the appellant, wherein they urged that the two cases cited by the court in its opinion were not in point. The case of Mining Co. v. Kerr did not decide that in an action of this kind the question as to whether a patent had been “ fraudulently obtained or improvidently issued” could be decided, but held that a patent which was claimed to be invalid, and therefore void, not voidable, could be attacked in such a proceeding. But the supreme court of the United States has often decided that the only way in which a patent of the United States can be attacked without an equitable action in the name of the United States as plaintiff, is when the patent is invalid, when read in the light of the existing law, as for instance, when for land reserved from sale, or for an unauthorized amount, or made by officers without authority to act. Smelting Co. v. Kemp, 104 U. S. 636. See, also, Ferry v. Street, 4 Utah, 521.
No written instrument can be reformed colaterally, but only in a direct proceeding. Osborn v. Hendrickson, 8-
Grow’s deed was made in 1874, and tbe remedy by reformation bas been barred for fourteen years. Tbe decisions are all plain upon tbis question,, and all agreed that in tbis action if equitable relief is asked for, it must be pleaded. Curtis v. Sutter, 15 Cal. 260; Killey v. Willson, 33 Cal. 690; Ross v. Heintzel, 36 Cal. 313; Brewer v. Houston, 58 Cal. 345, which is precisely in point; Von Drachenfels v. Doolittle, 77 Cal. 295; Castro v. Barry, 79 Cal. 443, which bolds that a holder of an equitable title cannot maintáin bis suit to quiet title against the bolder of tbe legal title, without first obtaining tbe requisite equitable relief. See, also, Johnson v. Portious, 20 N. E. Rep. 792.
Tbe rehearing was denied by the court.