173 P. 948 | Utah | 1918
The complaint in this action contains the usual allegations for the foreclosure of a mortgage and for a deficiency judgment against the makers of the note secured by the mortgage. None of the defendants answered except James S. W. Frame and his wife, Frances Elizabeth Frame. These defendants filed a counterclaim alleging ownership of the premises in question and possession for more than ten years; that
The facts, as disclosed by the record, briefly stated, are these: Frame was the owner of and, with his family, occupied the land in question as a home in the year 1910 and for some years prior thereto. During the early part of 1910 negotiations were had by and between Frame and Killpaek with a view of trading the premises belonging to Frame for certain lands situate in the state of Idaho. The premises owned by Frame were incumbered with a mortgage in the sum of $1,500. The premises to be received in exchange were also incumbered with a mortgage for the sum of $3,500, and Frame agreed to 'give a second mortgage on the same premises to Killpaek for $3,000 additional. The. grantee in each deed assumed the respective mortgages. Negotiations had proceeded to the point that on July 9. 1910, Frame and wife executed a deed to Killpaek for the premises in question. That deed was left in. the possession of an attorney in Salt Lake City to be delivered to Killpaek whenever such attorney found the title to the premises in Idaho to be as represented. Thereafter, on or about August 20, 1910, the attorney, having satisfied himself ■ as to the title of the Idaho property, delivered the deed to Killpaek, and the same was immediately recorded. Prior to that date, and some time during the month of July, 1910, Killpaek, accompanied by plaintiff, Shafer, visited said premises, and found the same in possession of appellants, Mrs. Frame being present that day. At the request of plaintiff and Killpaek she showed them through the house and explained the cost of constructing it. At the trial Mrs. Frame testified that she then understood that Shafer was there with.a view of either buying or making a loan, on the property. No inquiry was made by Shafer as to whether Frame or his wife had any interest in the property, and neither of them indicated or intimated to Shafer that they,' or either of them, claimed any interest or ownership in said
At the trial a jury was impaneled at the request of appellants. After the testimony was practically all in the court discharged the jury and determined the issues without the assistance or findings of the jury. The appellants insist that that was error, claiming that they were entitled to have the judgment of the jury upon the question of fraud raised by their counterclaim. The court made findings of fact determining all the issues .on the question of fraud against appellants.
We are not unmindful that there are authorities holding contrary to the views herein expressed, but, in our judgment, the better reasoning supports these conclusions. The authorities discussing the issues presented by this case are collated and annotated in a note to Garbutt v. Mayo, 12 L. R. A. (N. S.) 117.
We do not wish to be understood as determining the rights of one occupying premises for any great length of time after having conveyed the title to the same, or as holding that a
If this were a case of first impression, the writer of this opinion would readily agree with and concur in the text of 2 Devlin on Deeds (3d Ed.) section 764, where the author, discussing this subject, says:
"It is perhaps to be regretted that courts should hold parties bound by any other notice than that furnished by the record. Land is sold in many instances that the party purchasing has never seen. The purchaser relies upon the records for the purpose of ascertaining his vendor’s title, and generally considers himself safe in purchasing when the records show that his vendor’s title is indefeasible. But it may happen that the one apparently possessing the title has no title whatevei', or has a title subject to liens and incumbrances not disclosed by the record, but manifested by a possession sufficient to affect subsequent purchasers with notice.”
We find no reversible error in the record.
The judgment of the court below is affirmed; respondent to recover costs.