134 P. 619 | Utah | 1913
This is an action to quiet title to certain lots in Ogden City. Plaintiff alleged that be was tbe owner and entitled to tbe possession of them, and that the defendants asserted an unfounded claim to them. Tbe defendants denied tbe plaintiff’s ownership and right of possession and alleged that tbe Granges were tbe owners and entitled to tbe possession, and that Kruse held a mortgage given by tbe Granges to her.
Plaintiff’s claim of ownership is this:
In 1890 one Warren G. Child, who then was tbe owner of tbe property, sold and conveyed it by warranty deed to one Leo Busse. Busse as a part of tbe consideration gave a promissory note for $887 to Child and a mortgage back to secure it. Child assigned and transferred tbe note to tbe plaintiff. In 1902 tbe plaintiff brought an action to foreclose the mortgage and obtained a judgment of foreclosure, upon which an order of sale was made, tbe property sold in that year and purchased by plaintiff at tbe sale. It was not redeemed, and' so a sheriff’s deed was made and delivered' to tbe plaintiff in 1905. Tbe regularity of these proceedings are not questioned.
Tbe defendants alleged that tbe assignment and transfer by Child to plaintiff was without consideration and was made and tbe foreclosure bad in tbe name of tbe plaintiff and tbe deed delivered to him by tbe sheriff in trust for Child and for bis use and benefit. They further alleged that a few days before tbe sheriff’s deed was made and delivered “tbe plaintiff agreed with Child that be would execute and deliver to said Child a deed to all of said property covered
The court found:
(1) That the note was indorsed and assigned to plaintiff by Child without consideration; (2) that the plaintiff foreclosed “the mortgage in his own name but as the trustee of the said Warren G. Child, and that the plaintiff at no time had any interest in or claim to said note other than as trustee of the said Child,” and “was at no time in possession of the said real property, and never at any time paid the taxes;” (3) that Warren G. Child “from and after the year 1895 and until his death paid all the taxes and claimed to be the owner of the property,” and that after his death the taxes were paid by the Granges; (4) that in 1892 the property was sold by Ogden City for a want of payment of a special tax assessment against the property, and in 1893 “a deed was executed to Ogden City,” and in 1895 the city, by quitclaim deed, conveyed to Warren G. Child, and
Upon these findings the court stated conclusions: (1) That the plaintiff’s action should be dismissed; and (2) that the defendant, Ralph Grange, is entitled to a judgment quieting the title of the premises in him. The plaintiff appeals. He assails the findings.
Such other “competent evidence” to which our attention is directed is this:
The indorser, Child, was not made a party to the foreclosure proceedings; the plaintiff at the sale purchased the property for a sum less than the face of the note and interest and took no deficiency judgment against the defendants in the foreclosure proceedings, who, as the respondents say, “were summoned by publication; ” the plaintiff was entitled, to a sheriff’s deed in 1903, but took none until in 1905; 'Child had entered into .a contract with Rankin for a sale of a portion of the property more than a year before the deed from the plaintiff to Child had been executed quitclaiming that portion of the property to Child, and that “the plaintiff witnessed the execution of the instrument,” the contract from Child to Rankin; the property was sold to Ogden City in 1893 for want of payment of special taxes and was thereafter reconveyed to Child, who from 1895 to the time of his death paid the general taxes; the testimony of one of the deceased’s sons that the plaintiff stated to him that he “held a deed of trust covering these lots” and “I would like to buy them of you and said that he would give $500 for the lots providing we would allow him a bill of $100 that he claimed against my father for notary work, drawing contracts, deeds, and one thing or another,” which conversations and admis
We do not see anything in the defendants’ contention, except the payment of taxes. It is alleged and it is shown • that the taxes were paid by Child from 1895 to the time of his death, and thereafter by the Granges. But that alone is not sufficient to show adverse possession or that the action is barred. Neither does it show that the note and mortgage were transferred to the plaintiff without consideration and in trust for the use and benefit of Child. No claim is made that the deed from Ogden City to Child conferred or vested title in him as against his assignee, the plaintiff. All that is claimed for that is “the quitclaim deed by Ogden City to Warren G. Child gave him such a title as would vest in him or his successors the right to plead the statute (of adverse possession and limitation) against any former lienholders or others claiming an interest in the property,” and that “whatever rights the defendants or their predecessors had, either as lienholders or as purchasers under that sale, accrued at the date of the sale, and their right to invoke the statute of limitations begins to run from that date.”
We are therefore of the opinion that the judgment of the court below should be reversed , or modified and the case remanded, with the directions:' To ascertain the market value of the property, exclusive of the improvements, at the time of the commencement of the action; ascertain the amount of the taxes, both special and general, assessed and levied against the land and paid by Child and the Granges since 1895, and to deduct such amount, together with interest thereon at 8 per cent, per annum, from such market value; to give the defendants the option to pay plaintiff, within 90 "days after notice of such determination, such difference, and if such payments are so made then to enter a judgment quieting the title of the property in the Granges; if the defendants decline to exercise the option, then to ascertain the value of the improvements at the time of the commencement of the action and which were placed on the property by the defendants and give the plaintiff the option within ninety days after notic0__of„such__determination to pay the defendants the amount of such taxes, together with interest and the value, of the improvements, less a reasonable rental value of the land during' the defendants’ occupancy, and, if in such case such payments axe so made, then to enter a judgment quieting the title of the property in the plaintiff; and, if the plaintiff also shall decline such option, then to sell the property and apply the proceeds of sale first to"the cost of such saleTtheBTpay to the defendants the amount of such taxes and ifiEefestpand then divide the balance of such proceeds between the plaintiff and the defendants in proportion of the market value of the land, exclusive of improvements, at the time of the commencement of the action, and the value of the improvements, less a reasonable rental value of the land during the defendants’ occupancy. Each party is required to pay his own costs on appeal and in the court below. Such is the order.