Hennefer v. Hays, No. 670

No. 670 | Utah | Dec 10, 1896

Zanb, C. J.:

These four cases were tried before a referee. The parties . stipulated before trial that they should be heard together, and that the evidence taken should be received in each, so far as competent, relevant, and material,' and that the findings of fact and conclusions of law should be made a part of the record in each case. It appears from the record that the late Abraham Hays was, in the year 1886, the owner of a part of lot 2 in block 6, plat B of Salt Lake City survey, more accurately described in the record; that he died on the 14th day of December of that year; and that his wife, Sarah Hays, and five grandchildren, namely, A. H. Hennefer, William H. Hen-nefer, Rebecca A. Bunce, and Edward E. Hennefer, children of a deceased daughter, and Jennie E. Hays, defendant, daughter of a deceased son, survived him; and that the plaintiffs McLaughlin and Campbell obtained interests in the land from William H. Hennefer and Mrs. Bunce. The plaintiffs A. H. Hennefer and Rebecca A. Bunce allege in their complaints an unwritten, executory contract, between Abraham Hays and the four grandchildren first above named, and possession under the contract, and valuable improvements and performance on their part, and they pray the court to grant them specific performance; while the plaintiffs McLaughlin and Campbell base their cause of action on the statute of limitations simply, acquired, as alleged, by adverse possession and payment of taxes for seven years, and they asked the court to quiet their titles. The referee found the existence of the verbal contract between Abraham Hays and the four grandchildren first named, and possession under and performance of it on their part. As to • the allegations in the complaint of McLaughlin and Campbell, of possession and payment of taxes for seven years before action was brought, the referee found adverse possession for about three years and sis months, and made no finding as to the payment of taxes. But he states, as a conclusion of law, that each of the plaintiffs is entitled to a decree quieting his title. So it appears that the referee found the existence of the facts set up to show a right to specific performance in the complaints of Hennefer and Bunce, but did not find adverse possession and payment of taxes, alleged in the complaints of McLaughlin and Campbell, to show their right to have their titles quieted. The referee found the facts stated in the two first complaints, but stated, as a conclusion of law, that all the plaintiffs were entitled to decrees according to the prayer of the two complaints containing the facts not found. Upon these findings, decrees were granted in the respective cases, quieting the titles of the respective parties; and a motion for a new trial in each case having been denied, and exceptions taken, the defendant appealed from such decrees and the orders overruling her motions for a new trial, and assigns said respective orders and decrees as error.

From this statement it is apparent that the findings were not responsive and applicable to the causes of action alleged in the complaints of James McLaughlin and Celia M. Campbell, and that the conclusions of law and the decrees were not responsive to the causes of action alleged in the complaints of A. H. Hennefer and Bebecca A. Bunce, and that the conclusions of law did not follow from the facts found. We therefore hold that the court below erred in the findings of fact as to the cases of McLaughlin and Campbell, and in stating its conclusions of law, and in the decrees and orders overruling defendant’s motion for a new trial in the respective cases.

On the trial, A. H. Hennefer, a plaintiff, and one of the parties to the contract with Abraham Hays, deceased, ■of which the court was asked to decree specific perform-anee against the defendant, was permitted to testify, against her objection. The testimony consisted of state' ments of the deceased, which, with the promises of the grandchildren above named, it is claimed, constituted the contract relied on. The defendant was an heir and a party, and the statements were equally within the knowledge of the witness, who was also a party, and the deceased ancestor. We are of the opinion that this testimony was inadmissible, under section 1, c. 31, p. 26, Laws Utah 1894, which declares that “a party to any ■ civil action, suit, or proceeding, and any person directly interested in the event thereof, and any person from, through, or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit or proceeding, claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian, or assignee or grantee, directly or remotely, of such heir, legatee or devisee as to any statement by, or transaction with, such deceased, insane or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit or proceeding.” The case of In re Atwood’s Estate, 14 Utah 1" court="Utah" date_filed="1896-07-18" href="https://app.midpage.ai/document/in-re-atwoods-estate-8653986?utm_source=webapp" opinion_id="8653986">14 Utah 1, we regard as decisive of this point.

For the reasons stated, the orders and decrees appealed from are reversed, and the court below is directed to grant a new trial, and to give the respective plaintiffs leave to amend their complaints.

Bartch and MiNER, JJ., concur.