213 P. 179 | Utah | 1923
Lead Opinion
As will more fully appear from reading the opinion, it was an action to cancel a mortgage and quiet title to certain real property situated in Millard county. Plaintiff claimed title under a fee-simple deed from his father, Jacob Huntsman from whom defendants also attempted to deraign title. Defendants claimed through divers mesne conveyances as follows: (1) From Jacob Huntsman, by Peter Huntsman, his attorney in fact, to Fanny Allen; (2) from Fanny Allen to Peter Huntsman; (3) from Peter Huntsman to defendant Emma B. Huntsman; (4) from Emma B. Huntsman, by mortgage, to the other defendants.
Fanny Allen was a daughter of Peter Huntsman, the attorney in fact of Jacob Huntsman, and in the opinion referred to this court held that the purported conveyance to Fanny Allen was a mere attempt to give her the property without consideration which, under the authority conferred, was beyond the power of the attorney in fact. Because of this defective link in the chain of title, this court decided the issues in favor of the plaintiff and affirmed the judgment of the court below.
In the application for a rehearing it was made to appear that probably the defendants were misled to their prejudice by some proceeding during the trial of the case, and for that reason failed to offer proof of substantial consideration for the deed to Fanny Allen. Hence the cause was remanded solely for the purpose of receiving further evidence upon that point. After stating the reasons for remanding the cause, the concluding paragraphs of the opinion on rehearing read:
“For tlie reasons stated, the court is of the opinion that the case*378 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 to Fanny Allen was executed for a substantial consideration as contemplated in the power of attorney by authority of which the conveyance was made. Plaintiff, of course, should be permitted, if he choose, to present evidence on the same subject in support of his contention.
“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 pase:
“(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, 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.”
Thus it appears the issue submitted was clearly defined and the evidence to be taken was expressly limited. The issue was tried to the court without a jury. The findings of the court are brief and to the point. After referring to the former judgment, the appeal therefrom, and the specific issue submitted by this court for further evidence, the court finds:
“(1) The court, Without reiteration, affirms all of the facts found by the trial court in the previous trial of this cause.
“(2) That the deed made by Peter Huntsman as attorney in fact for Jacob Huntsman, dated November 15, 1897, purporting to convey all of lots 3 and 4 in block 68, Plat A, Fillmore City survey, to Fanny Allen, was without any consideration whatsoever, and was an attempted gift.”
Judgment was entered for plaintiff, from which defendants appeal.
Numerous errors are assigned. As we view the case, it is not necessary to consider the errors in detail. In the ad
ft seems to tbe court that to sustain tbe contention of appellants in tbe instant case would be to totally disregard one of tbe fundamental rules of judicial procedure. This is a second appeal. This court has no more right to disregard its decision heretofore rendered than bad tbe trial court below in its trial of the issue submitted. Our decision became the “law of tbe case.” 5 Words and Phrases, First Series, 4024. We decided that tbe only issue to be determined by the trial court was whether or not there was a consideration for the deed to Fanny Allen, within tbe spirit and meaning of tbe authority given to tbe attorney in fact. We remanded tbe case in order that further evidence might be taken as to that issue, and that only. Whatever right, if any, appellants may have had at the original hearing to prove title to the property other than by the deed to Fanny Allen as a necessary link in the chain, we are legally certain they had no right to attempt to make such proof in the last hearing of the case. Besides this, there was not only no additional proof of a substantial consideration for the deed to Fanny Allen, but there was affirmative evidence, practically conclusive, that the deed was merely an attempted gift, as found by this court, in its former opinion. The findings of the court in the last hearing are therefore amply sustained.
Appellants insist that the court erred in denying them a trial by jury. It is alleged that a demand was seasonably made. It is not claimed, however, that a demand was made at or prior to the former hearing. This is an equity case,
We find no reversible error in the record. The judgment of the trial court is therefore affirmed, at appellants’ costs.
Rehearing
On Application for Rehearing.
In their application for rehearing, appellants complain that the trial court, in its original findings, and this court on the first appeal, overlooked defendants’ plea of estoppel. As to the findings of the trial court, the complaint is without substantial foundation. The findings, when fairly interpreted, are against the plea. While we are of opinion that the plea was without merit, our inadvertence in overlooking it would no doubt have been corrected, if it had been called to our attention in the application for rehearing on the first appeal. If Peter Huntsman had been the party plaintiff, the plea in estoppel would have been an effectual bar; but we see no merit in the plea as against the plaintiff Willis Huntsman.
The statement made in our last opinion will be corrected, and the opinion modified accordingly. The application for rehearing is denied.
Since date of filing original opinion and pending application for rehearing, the term of office of Chief Justice CORF-MAN expired, and Hon. A. J. WEBER has become Chief Justice.