186 P. 1103 | Utah | 1920
The replies made by plaintiff were practically of the same legal effect, alleging as defenses to defendants’ answers:
(1) That the said H. J. Ewing, the judgment creditor, in the said case of Ewing v. Tanner et al., accepted a note in satisfaction of said judgment in the justice’s court prior to the sheriff’s levy and sale under execution.
(2) That the judgment and execution under which the execution sale was made did not run against the separate property of the defendants in the case of Ewing v. Tanner et al., as copartners, but against their partnership property only, and that therefore the said sheriff’s levy against and sale of the separate property of the defendant Tanner was void.
(3) That the said levy was made for the full amount of
.(4) That the levy and sale were excessive and irregular for the reason that the real property sold consisted of several distinct parcels of land of much greater value than the amount of the judgment under which it was sold, and that the said lands were all sold as one parcel.
(5) That the plaintiff was, with defendants’ knowledge, at all times mentioned in their answers, in the absolute, open, quiet, peaceable, notorious and adverse possession of the lands sold.
The ease was tried to the court without a jury, and the issues were found in defendants’ favor. Plaintiff appeals.
In brief, the plaintiff’ complains of and assigns as error the failure of the trial court to find on all the material issues in the case.; that the evidence does not justify and is insufficient to support the trial court’s finding of fact, conelusións of law, and decree; and that the same are contrary to law.
The testimony, briefly stated, shews: May 24, 1911, Henry S. Tanner became the owner of the land in controversy. February 18, 1914, a judgment for $154, interests and costs, was rendered in the justice’s court for Salt Lake county against Henry S. Tanner, D. ~W. Adamson, and "W. P. Funk, copart-ners, doing business under the name of Farmers’ Loan & Trust Company in favor of H. J. Ewing, one of the defaulting defendants herein. February 19, 1914, the day following the rendition of the judgment, Henry S. Tanner, by deed, conveyed the land to the National Realty Sales Company, a corporation, the plaintiff in the present ease. This deed was not recorded in the office of the county recorder for Utah county until June 28, 1917, at 4:05 o’clock p. m. January 5, 1915,. an abstract of the judgment rendered against Henry S. Tanner and others in the justice’s court of Salt Lake county was issued out of said court, and said abstract was docketed in the district court of Utah county March 2, 1916, as “Case No. 3482, Civil. ’ ’ Execution issued out of said district court, directed to the sheriff of Utah county, in said civil case
It further appears from the record that the said H. J. Ewing, June 14, 1917, redeemed said premises from delinquent tax sales made for the taxes levied thereon for the years 19.10 to and including the year 1914.
June 15, 1917, H. J. Ewing, for a consideration of $1,600, conveyed said lands by warranty deed to William J. Finlay-son, which said deed was duly recorded in the office of the county recorder for Utah county June 28, 1917, at 11:20 o’clock a. m. Said William J. Finlayson, by mortgage dated June 19, 1917, acknowledged June 22, 1917, mortgaged said premises to secure a loan of $2,000 to the defendant Farmers ’ & Stockgrowers’ Bank, which said mortgage was recorded in the office of the county recorder for Utah county, June 28, 1917, at 11:30 o ’clock a. m. William J. Finlayson died intestate July 21, 1917.
The preceding facts appear as matters of public record and are not in dispute between the parties. As we proceed we shall have occasion to briefly refer to other features of the testimony having a bearing on the contentions of the respective parties.
The trial court found, among other things not necessary to here mention:
That the sheriff of Utah county sold the lands in accordance with law to the defendant H. J. Ewing; “that the said sheriff, in accordance with the sale to the said H. J. Ewing, executed and delivered a certificate of sale to said premises; that after the time for redemption had expired and neither the said H. S. Tanner nor any ■other person claiming under him, or otherwise, having redeemed the aforesaid lands and premises from said sale, the said sheriff on or about the 20th day of January, 1917, executed and delivered to said H. J. Ewing a sheriff’s deed to the aforesaid lands and*443 premises; that at the time of said sheriffs sale, as aforesaid, the said H. S. Tanner had been and was the real owner of the aforesaid lands and premises.”
The trial court then proceeds to make further findings to the effect that H. J. Ewing and his wife subsequently sold the premises to William J. Finlayson for a consideration of $1,600, and that he thereafter mortgaged the property to the defendant the Farmers’ & Stockgrowers’ Bank, to secure a promissory note dated June 19, 1917, for $2,000 (no part of which has been paid), and that the aforesaid transactions were “without notice of any claim by the plaintiff of any right, title, or interest in or to said property. ’ ’
It is the contention of the plaintiff that, at the time of the sale of the property under execution, the judgment debtor had no interest therein, having previously conveyed the premises to the plaintiff by deed dated February 19,1914, although the same was not recorded in the office of the county recorder of Utah county until June 28, 1917, after the sale under execution, the issuance of a sheriff’s deed to Ewing, his sale and conveyance to William J. Finlayson, defendant’s intestate, and the latter’s mortgage to the defendant the Farmers-’ & Stockgrowers’ Bank had been made matters of public record. If we correctly understand plaintiff’s counsel, they do not seriously contend that the plaintiff had any right under the circumstances to assume that it could stand idly by relying on its unrecorded deed and permit innocent parties to deal with respuct to the property without knowledge or any notice whatever of the plaintiff’s claims in the property, but that plaintiff’s possession of the premises was sufficient to put the defendants on notice. The law is well settled and firmly established, and it may be said to be the general doctrine both in this country and in England, that a subsequent purchaser' cannot be protected as a bona fide purchaser if he had actual or constructive notice of an unrecorded title,
“I informed Mr. Tanner that the sheriff was advertising the property in accordance with law, and X told him that we didn’t want to go further with it; that we preferred to have him pay the judgment and costs, which he promised to do. * * * That was during the time the advertising was going on in the Provo paper.”
The same witness testified, in substance, that after the premises were sold under execution sale, and his brother had become the purchaser and had received the sheriff’s deed therefor, he and his brother went upon the land with a deputy county surveyor, established the boundaries, and marked the corners of the lands; that at that time there was no one in possession of or using the lands; that they then made arrangements with a nearby farmer to take and use the land under the ownership of H. J. Ewing. Lottie Finlayson, defendant in a representative capacity of the estate of William
“I told him that Mr. Ewing was offering to sell the land. * * * I told Mr. Tanner that I had called at the recorder’s office and found that there was a recorded deed in the name of H. J. Ewing and it was A, W. Ewing that I had been dealing with. This was the first that I heard of H. J. Ewing and that there was a man hy the name of Adamson and Funk and Tanner, as I remember it, associated together. This ground was-sold to H. J. Ewing at an auction sale in Provo on a certain date, and I described the land, or the proceedings along this line. Mr. Tanner expressed somewhat of surprise that the title had got in that condition, and he told me he would have to look into it. He says, ‘they can’t sell my land that way, you know.’ ”
We have reviewed the authorities cited in plaintiff’s brief with care, and we fail to find a single ease bearing upon the question of possession in which it has been held that possession of the‘kind and character testified to by plaintiff’s witnesses is sufficient, under similar circumstances, to charge third parties or purchasers with notice of ownership or sufficient to put the intending purchaser upon inquiry. To say the least, the testimony of the plaintiff’s witnesses was exceedingly vague and doubtful with respect to the question of possession, and the testimony of defendants’ witnesses is in conflict therewith. It is held by the courts, in general, and the authorities cited by plaintiff afford no exception to the rule, that possession of real property, in order to impart notice of the occupant’s title and equities, must be open, notorious, visible, and continuous. Warvelle on Ab
It does seem that the property now under consideration was sold under' the execution for an inadequate price. However, mere inadequacy of price was not sufficient to invalidate the sale when the proceedings were fair and regular and there is nothing in the record to suggest fraud or concealment. 16 R. C. L. 140; Wilkins v. Rue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368; Bogle v. Bloom, 36 Kan. 512, 13 Pac. 793. The plaintiff was apprised of all the proceedings against its property, and had it acted seasonably it could have averted the acts of which it complains without prejudicing the rights of the defendants now, as we think, fully established by the conduct of the respective parties under the circumstances as disclosed by the record before us.
“If there has been unreasonable delay in asserting claims, or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, or suffers his adversary to' incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in * * * the act complained of, equity will ordinarily refuse * * * aid * * * of an admitted right.” Stewart v. Finkelstone, 206 Mass. 28, 92 N. E. 37, 28 L. R. A. (N. S.) 634, 138 Am. St. Rep. 370.
Under our statute, Comp.'Laws Utah 1917, section 6934, with respect to execution sales, Henry S. Tanner or the plaintiff, could have directed the sale of the property to
The defendants in this action acquired their interests in the property without notice of any rights of the plaintiff in the property as the trial court found, and their rights, in view of the laches of the plaintiff, must be upheld.
We find no prejudicial error in the record before us, and therefore it is ordered that the judgment and decree of the district court be affirmed, with costs.