192 P. 368 | Utah | 1920
Lead Opinion
This is an action to cancel a mortgage on certain real estate in Fillmore City, Millard county, and to quiet title thereto. Plaintiff and defendant Emma B. ’Huntsman, hereinafter called Mrs. Huntsman, each claims to be the owner in fee of the premises in question, and the other defendants claim title under a mortgage from Mrs. Huntsman. Mrs, Huntsman not only claims to be the owner by title of record, but also by adverse possession since 1903. It is not necessary to make a detailed statement of the pleadings. Such parts as may be material will be specifically referred to hereinafter in connection with the matters to which they relate.
The trial court found the issues in favor of the plaintiff. Judgment was entered, and defendants appeal.
At the trial many collateral matters were injected into the case. They failed to reflect much light on the issues to be tried. Some of them tended to confuse more than to enlighten.
The plaintiff rests his claim upon a chain of title commencing with a patent from the United States, as follows:
Defendant Mrs. Huntsman rests her claim, as far as record title is concerned, upon the same chain of title down to and including the title of Jacob Pluntsman. Thence on she relies on the following: (1) A power of attorney from Jacob Huntsman to Peter Pluntsman authorizing the purchase and sale of property, both real and personal, of date May 13, 1875; (2) Jacob Huntsman, by Peter Huntsman, his attorney in fact, in consideration of two dollars, to Fanny Allen, in fee simple, November 15, 1897; (3) Fanny Allen to Peter Pluntsman, in fee simple, April 19, 3898; (4) Peter Huntsman to Emma Huntsman, defendant in this action, in fee simple, July 2, 1908. These transfers are also of record in the office of the county recorder of Millard county.
There is another transfer and also the record of a court proceeding concerning the premises in question, but they are merely collateral in this action.
The ownership of the property in litigation, as shown by the record, depends entirely upon the question as to whether or not Peter Huntsman, as attorney in fact of Jacob Huntsman, had the power to convey the property to Fanny Allen for a nominal consideration; in other words, whether or not he had the.power under his letter of attorney to make an absolute gift of the property, for that is all the transaction amounts to, in substance and effect. There is no question but that the owner of property has a right to give it away if he chooses. Pie has the right to convey it for a nominal consideration, but, if he is acting under a power of attorney
The power of attorney is of considerable length, and if quoted in full would occupy more space than is necessary in this opinion. We shall therefore quote only so much as is necessary to demonstrate the purpose of the instrument, and the extent of the power conferred:
“Know all men by these presents that I, Jacob Huntsman, of Kern county, state of California, have made and constituted and appointed, and by these presents do make, constitute, and appoint, Peter Huntsman, of Fillmore City, Millard county, Utah territory, my true and lawful attorney, for myself and in my name, place, and stead, and for my use and benefit, and particularly to act in my stead in so far as I am interested as an heir, of all that certain property now held in a co-operative organization whose headquarters are at or near Fillmore City, Millard county, Utah territory, * * * to lease, let, demise, bargain, sell, remise, release, convey, mortgage, hypothecate lands, tenements, and hereditaments, upon such terms and conditions and under such covenants as he shall see fit.”
The instrument also confers the usual power to perform every act and thing requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the principal might or could do were he personally present, ratifying and confirming all that said attorney, Peter Huntsman, might lawfully do, or cause to be done, by virtue of the instrument.
It is contended by respondent that the document which we have quoted in part is not a general power of attorney,
There is, however, in our opinion, a fatal defect in the instrument as far as concerns the question presented here. The power to convey the property by gift, and for a nominal consideration, which in effect is the same thing, does not exist. It is not deducible from the language or manifest intent of the instrument. The language, “do make, constitute, and appoint Peter Huntsman, of Fillmore City, Millard county, Utah territory, my true and lawful attorney, for myself and in my name, place, and stead, and for my use and benefit,” is very far from conferring power to give the property away, or convey it for a mere nominal consideration. The acceptance of only two dollars as consideration for the deed to Fanny Allen, who was a daughter of Peter Huntsman, the attorney, can by no process of reasoning be construed a benefit to Jacob Huntsman, nor as. a compliance with the duty which Peter Huntsman owed to Jacob as his attorney
As to the authority of an attorney in fact, acting under a power conferred for the benefit of his principal, to make an absolute gift of the property, or convey it away without substantial consideration, we doubt if there is
“A power of attorney given to an agent to act in the name and on behalf of his principal, though couched in general language, must, in the absence of anything showing a contrary intent, be construed as giving authority to act only in the separate, individual business of the principal and for his benefit. It cannot be construed as permitting the agent to engage in transactions foreign or repugnant to that business, or to • hind the principal by acts done, not for his benefit and in his behalf, but for the private benefit of the agent himself, or for other persons.”
In 21 R. C. L. p. 886, it is said:
“A conveyance under a power of attorney must he executed in pursuance of the power, and he within its terms; hence a power to sell does not authorize a gift of the property or a transfer of it for any purpose other than in completion of a sale.”
Tbe following cases are to the same effect: Rogers v. Tompkins (Tex. Civ. App.) 87 S. W. 379; Dupont v. Wertheman, 10 Cal. 354; Mott v. Smith, 16 Cal. 534.
In one of the headnotes to the last-mentioned case it is said:
“Where a power of attorney, relative to real estate, authorizes the agent ‘to grant, bargain, and sell the same, or any part or proportion thereof, for such sum or price, and on such terms as to him may seem meet,’ the agent has no power to make a conveyance in consideration of love and affection in the principal for*617 the grantee in the conveyance, and such conveyance is on its face a nullity.”
See, also, the following eases: Wallace v. Branch Bank at Mobile, 1 Ala. 566; Hazeltine v. Miller, 44 Me. 177; Camden S. D. & T. Co. v. Abbott, 44 N. J. Law, 257; Platt v. Francis, 247 Mo. 296, 152 S. W. 332; Gulick v. Grover, 33 N. J. Law, 463, 97 Am. Dec. 728; Lewis v. Lewis, 203 Pa. 194, 52 Atl. 203; Stainback v. Read & Co., 11 Grat. (Va.) 281, 62 Am. Dec. 648; North River Bank v. Aymar, 3 Hill (N. Y.) 262; Adams Express Co. v. Trego, 35 Md. 47; Welke et al. v. Wackershauser, 143 Iowa, 107, 120 N. W. 77.
The conclusion above reached likewise disposes of the contention of Mrs. Huntsman that the property was awarded to her by decree of court in a divorce proceeding against her husband, Peter Huntsman, in July, 1916. If Peter Huntsman was not the owner of the property the decree of court attempting to award the title to her was a nullity. Another circumstance developed by the evidence is worthy of mention. Fanny Allen was never in possession of the property at all. The deed to her was executed November 15, 1897, and without entering into possession she reconveyed it to her father, Peter Huntsman, in 1898. Aside from the want of power in Peter Huntsman to 'convey the property without consideration, it is quite evident the transaction was never intended as a bona fide conveyance of the property. As to the alleged conveyance from Peter Huntsman to the defendant Mrs. Huntsman in 1908, there is a sharp conflict in the evidence as to whether or not the deed was ever delivered. In view, however, of what has been said, this question can be readily disposed of, even if it be conceded that the deed from Peter Huntsman to her was formally executed and delivered. No consideration was paid therefor for the benefit of Jacob Huntsman. As we read the record, the only consideration for the deed was -a past indebtedness owing by Peter Huntsman to her and the other defendants. Peter Huntsman had no more power to execute such a conveyance than he had to give the property to Fanny Allen. If we ai'e correct in thesé views, Mrs. Huntsman failed in the action to
But defendants contend that they are owners of the property by adverse possession since the year 1903. In their answer, among other things, defendants specifically deny that plaintiff is the owner of the property, or that the mortgage thereon is a cloud on plaintiff’s title, or that plaintiff has any title or interest whatever.
The paragraph by which they alleged title by adverse possession reads as follows:
“That the defendant Emma B. Huntsman and Peter Huntsman were legally married at Fillmore, Millard county, Utah, in the year 1903, and that as husband and wife said Emma B. Huntsman and Peter Huntsman, her husband, have been the owners of lots 3 and 4, in block 68, plat A. Fillmore City survey, in Millard county, Utah, claiming and holding the same under a claim of right and title adversely to all the world; that(since the year 1903 said defendants and their predecessors in title and interest have had the open, notorious, and exclusive possession, occupancy, and ownership of said property, and have paid all taxes and assessments levied upon or against said property, all under a claim of ownership and title to the same adversely to all the world.” )
Respondent interposes numerous objections to the sufficiency of the pleading:
(1) It is contended that the plea of adverse possession is not available unless accompanied by a plea that the action is barred by the statute of limitations. As we have shown, the defendants in their answer specifically denied3 plaintiff’s ownership of the property. Having denied the ownership of plaintiff, they then proceed to allege title in themselves by adverse possession. We are of the opinion the pleading is not defective as far as this objection is concerned.
(2) The point is also made that the plea is defective because it says “since the year 1903,” etc., instead of “ever since,” etc. A fair and liberal construction of4 the language with the view to giving effect to the intention of the pleader will hardly justify respondent’s con*619 tention. The criticism is too refined for the due administration of justice.
(3) It is also contended by respondent that the plea is defective in not alleging that defendants’ possession was continuous and uninterrupted. It was held in Winslow v. Winslow, 52 Ind. at page 8, that such allegation was essential. See, also, Colvin v. Burnett, 17 Wend. (N. Y.) 564. On the other hand, in Jackson v. Snodgrass, 140 Ala. 365, 37 South. 246, the court was of the opinion that where it is alleged that the possession was adverse the words “continuous” and “exclusive” need not be used. In the case at bar it is not only alleged that defendant claimed adversely to all the world, but also that their possession had been exclusive. It is difficult to conceive of an exclusive
Other objections are presented as to the sufficiency of the plea, but, as they are in no sense controlling, it is unneees-hary to devote time and space to their consideration. Assuming that defendants had exclusive, continuous, uninterrupted possession of the property under a claim of right and adverse to all the world from 1903 until the commencement of the action, still such possession would be of no
The record not only discloses the fact that Peter Huntsman held the power of attorney from Jacob Pluntsman, his brother, concerning which much has been said in another
These findings are amply sustained by the evidence. In fact, it was admitted by Mrs. Huntsman herself that she paid none of the taxes at all in 1910, and only a small part of them in 1911. They were paid by Peter Huntsman, who testified that he paid them for his brother, Jacob Huntsman, in pursuance of the aforesaid arrangement.
Comp. Laws Utah 1917, section 6456, provides:
“In no case shall adverse possession be considered established under the provisions of any section of this Code, unless it shall he shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors have paid all taxes which have been levied and assessed upon such land according to law.”
It follows, therefore, that defendants did not acquire title by adverse possession.
We have not considered in detail the alleged errors relied on by appellants. There were thirty-two errors assigned, besides fourteen subdivisions charging insufficiency of the evidence. The principal error relied on was the striking out of all the deeds and transfers constituting defendant’s chain of title, commencing with the power of attorney from Jacob Huntsman. We are of the opinion that these documents were clearly inadmissible to prove title.
Rehearing
On Application for Rehearing.
On application for rehearing appellant contends that the court erred in holding that Peter Huntsman, the attorney in fact of Jacob Huntsman, had no authority to convey the premises in question for a nominal consideration, and that the court also erred in holding that the consideration expressed in the deed to Fanny Allen was merely nominal and that the transaction amounted only to a gift. Finally, it is contended by appellant that in any event the matter of consideration for the deed was not in issue in the pleadings nor in any manner raised in the court below.
Appellant admits that if the conveyance to Fanny Allen was only a gift it was beyond the power of the attorney in fact.
The question of burden of proof as to whether or not there was a substantial consideration for the deed to Fanny Allen is not discussed by appellant. We have no means of determining appellant’s position in that regard. We recognize the rule that, while the expressed consideration
If it be true that on the face of the record the conveyance to Fanny Allen was not made for the benefit of Jacob Huntsman, as provided in the power of attorney, then it was incumbent upon the party relying upon the deed to prove that
We have no reasonable doubt as to the legal soundness of this proposition. In this case the ultimate question to be determined was the title to the property in question. The plaintiff introduced a chain of title extending from the United States down to the plaintiff. The chain of title on its face was flawless. The plaintiff rested his case. It was incumbent on the defendant to meet the case thus presented. She undertook to do so by introducing other deeds executed under a power of attorney. The power of attorney was explicit in requiring that the conveyance of the property must be for the benefit of the principal. The deed to Fanny Allen, executed under the power of attorney, showed on its face, in connection with other evidence, that the consideration was only nominal, and could be of no substantial benefit to the principal. In other words, it was a mere gift to the grantee, which was outside the power given to the attorney in fact. The title sought to be proven by defendant depended upon the validity of this conveyance. We feel compelled to hold, as we did in the opinion' complained of, that for the reasons above stated defendant failed to establish her title or to otherwise meet the case made by plaintiff.
It is suggested, however, by appellant that the court was not justified in assuming that the consideration for the deed was merely nominal. It is true the actual value of the property was not established by the evidence. . No attempt was made so to do by either party. It does appear, however, that at the time of the attempted conveyance to Fanny Allen the property consisted of two city lots in Fillmore City, the county seat of Millard county, aggregating two -and one-half acres of land, with water right therefor and a dwelling house situated thereon which had been the home of Jacob Huntsman’s mother. The property was considered of sufficient importance to justify the expense of a suit instituted by Jacob Huntsman in the district court of Millard county for the purpose of quieting his title. In view of these circum
As contravening these propositions appellant cites the case of Wade v. Northup, 70 Or. 569, 140 Pac. 451. This was an Orgeon case, involving the validity of a conveyance executed by an attorney in fact under a general power of attorney. The conveyance was made by the attorney in fact upon an express consideration of ten dollars and other good and valuable considerations. The point was made by the party assailing the deed that it was merely a gift, and that the power of attorney did not include the power to make a gift. The court held the deed to be valid as a conveyance of the property, but there is a wide distinction between that case and the ease at bar. In the first place, the power of attorney in that case did not expressly authorize the attorney in fact to exercise the power for the benefit of the principal. In the second place, the consideration expressed was ten dollars and other valuable considerations. In the third place, there was evidence in the record on appeal to the. effect that the person executing the power of attorney was well-to-do, and that the land conveyed was unproductive; that the principal had frequently expressed the intention of conveying the land to her brothers and sisters and had so stated to her attorney in fact. The conveyance was made to the very persons concerning whom the principal had expressed such intention. In these circumstances the court held that ‘ ‘ the act of the attorney was within the direct letter as well as within the spirit of the power conferred upon him.” The case sheds no light whatever upon the question here presented.
Holding, as we do, that the expressed consideration on the face of the whole proceeding was merely nominal and of
But it is contended that such a rule, if adopted by this court, would jeopardize innumerable titles acquired under similar circumstances. It is asserted to be a matter of common knowledge that many such cases exist in the state, and that untold hardship and confusion might result from the establishment of such a rule. ¥e know óf no rule or principle by which we may assume, as a matter of common knowledge, that such a condition exists. From our knowledge of human affairs and humanity in general we are disposed to believe that few, if any, cases of this bind exist where a power of attorney was made to be exercised only for the benefit of the principal, and the principal permitted the property to be given away without consideration. In any event, the court does not feel authorized to sanction such conduct as against the protest of the principal in a ease where the question of title is involved.
The deed in this case to Fanny Allen was executed in November, 1897. Almost immediately thereafter Jacob Huntsman brought an action to quiet title against her and another party holding a deed from the same attorney in fact, which deed was subject to the same infirmity. In April following, Fanny Allen conveyed the property back to the attorney in fact,' and thus, in effect, eliminated herself from the action brought kgainst her. , The action as to the other party was prosecuted to a final judgment in favor of the plaintiff. This feature of the ease is merely mentioned to illustrate the point heretofore made, that persons executing powers of attorney to sell property for their own benefit are not likely to permit the property to be given away for the benefit of another without entering reasonable protest. Hence we have little or no fear of the alleged hardship or confusion referred to by appellant concerning existing titles.
We have thus far endeavored to make our meaning clear as to the rule that should -govern in this class of cases. We
But it is contended by appellant that neither the pleadings on which the trial was had nor anything which occurred at the trial raised the question of no consideration as affecting the title to the property. A careful examination of the record justifies this conclusion. It was not necessary, however, to make the specific issue in the pleadings
The serious feature of the case, however, and one of which the appellant complains, is that respondent in the court below, in moving to strike the deed from the evidence, stated his ground therefor to be, not that there was no consideration for the deed and therefore that it was only a gift, which the attorney in fact was not authorized to make, but that the attorney in fact had exhausted his power by the execution of a prior deed to another party. That was the sole ground of the motion, as we read the record, and it was the sole ground upon which the court granted the motion.
’ The trial court was not warranted in granting the motion upon this ground, especially inasmuch as the prior deed relied on was also made without authority, and hence the power of the attorney in fact to execute another deed was not exhausted. Nevertheless the respondent having based his motion to strike the deed upon an untenable ground, and the
While this court is not bound by the reasons given by the trial court for its conclusions, but may affirm or modify a judgment upon any legal ground appearing in the record, still it is not bound to do so, and ought not to in an equitable proceeding if it might result in injustice to the appellant. Thompson v. Reynolds, 53 Utah 437, 174 Pac. 164; Realty Co. v. Investment Co., 43 Utah, 75, 134 Pac. 608.
For the reasons stated the court is of the opinion that the case should be remanded to the trial court for the sole purpose of permitting the defendant to present such evidence as she may have tending to show that the deed
In order that there may be no misunderstanding as to the scope and meaning of this opinion, we hold the following to be the law of the case:
(1) That the power of attorney from Jacob Huntsman to Peter Huntsman did not authorize a gift of the property to Fanny Allen or a sale thereof for a mere nominal consideration; (2) that the deed made to Fanny Allen, as the record now stands, was made for a nominal consideration only, and was therefore, not authorized by the power of attorney; (3) that the expressed consideration being only nominal, the burden of proof was on the defendant to prove that the deed was in fact made for a substantial consideration,*627 as contemplated in the power of attorney; (4) that defendant failed to discharge the burden thus imposed, and therefore failed to establish her title to the property. If the defendant can prove by a preponderance of the evidence that a consideration was paid for the property within the letter and spirit of the authority given the attorney in fact, the defendant is entitled to have her title quieted. Otherwise the judgment of the trial court is affirmed.
' It is therefore ordered that the cause be remanded to the •trial court for the purposes hereinbefore mentioned, and said court is hereby directed to mahe and enter its findings of fact and conclusions of law upon the evidence so presented, and enter its decree thereon in accordance with the views herein expressed; neither party to recover costs on this appeal.
