Snow v. Rich

| Utah | May 18, 1900

McCarty, District Judge,

after stating the facts delivered the opinion of the court.

"This court has repeatedly held that a judgment is' not final while a motion for a new trial, made within the time allowed by law, is pending and undisposed of, and that an appeal taken and perfected within six months from the date of overruling the motion for a new trial is taken in time. Watson v. Mayberry, 15 Utah, 265" court="Utah" date_filed="1897-06-16" href="https://app.midpage.ai/document/watson-v-mayberry-8654083?utm_source=webapp" opinion_id="8654083">15 Utah, 265; Orchard Co. v. Hanley, 15 Utah, 506" court="Utah" date_filed="1897-10-15" href="https://app.midpage.ai/document/bear-river-valley-orchard-co-v-hanley-8654120?utm_source=webapp" opinion_id="8654120">15 Utah, 506; Stoll v. Daly Min. Co., 19 Utah, 271" court="Utah" date_filed="1899-04-25" href="https://app.midpage.ai/document/stoll-v-daly-mining-co-8654326?utm_source=webapp" opinion_id="8654326">19 Utah, 271; 57 Pac. 295.

On the authority of these cases the motion to dismiss the appeal is overruled.

Plaintiff offered to prove that just prior to the death of C. C. Loveland he (Loveland) came to plaintiff and took him to Steed’s office, and while there asked him (Snow) for a deed to his wife of the land in question, and Snow stated to Loveland that, he would not give a deed until he received a deed for the 100 acres of Deweyville land; to which offer defendant objected. The court sustained the objection to which ruling the plaintiff excepted and now assigns it as error. We think the court was right. It was not shown, nor attempted to be shown that either Mrs. Steed or John T. Rich was present at the time this alleged conversation took place, and the rule is well settled that the declarations of the grantor made after having parted with his title are not admissible to impeach his own conveyance in the absence of any proof of collusion or of some fraudulent scheme between the grantor and the grantee. 1 Jones on Ev. Sec. 242, and cases cited in note.

There is no evidence in this case that shows or tends to show any fraud on the part of either Mrs. Steed or John T. Rich, but it appears from the record that they acted in good faith in the transaction by which they acquired title to the land in question.

Counsel for the appellant objected and excepted to the testimony showing adverse possession on the part of Mrs. Steed and John T. Rich of the land in dispute, and alleges error because of the admission thereof, on the ground that adverse possession was not properly pleaded.

We think the position of counsel on this point is untenable. Sec. 2992 Rev. Stat. 1898, provides that “In pleading the statute of limitations it is not necessary to state the facts showing the defense but it may be stated generally that the cause of action is barred by the provisions of section (giving the number of the section in the code of civil procedure relied upon, and of the subdivision thereof, if it is so divided) and if such allegation be controverted the party pleading must establish on the trial, the facts showing that the cause of action is so barred.”

Defendant’s answer contained the following allegation: “For a second defense, the defendant alleges, that the said cause of action, if any, stated in said complaint, is barred by the provisions of Sec. 2859, 2860, et seq. Revised Statutes and Code of Civil Procedure.”

We think this allegation was sufficient to authorize the introduction of evidence showing adverse possession. It is certainly in compliance with the requirements of Sec. 2992, above referred to.

Sec. 2859 of our Code is identically the same as the provisions of the California Code on the same subject (Deer-ing’s Code of Civil Pro. Sec. 318), and it has been repeatedly held by the Supreme Court of that State, that in an action to recover possession of land, a plea of the statute of limitations in the form prescribed by the Code of Civil Procedure and referring to the section relied upon, giving the number and subdivision thereof, when the section is divided into subdivisions, is sufficient, and entitles the defendant to give in evidence every essential fact tending to establish the defense of the statute. Hagely v. Hagely, 68 Cal. 348" court="Cal." date_filed="1886-01-19" href="https://app.midpage.ai/document/hagely-v-hagely-5442385?utm_source=webapp" opinion_id="5442385">68 Cal. 348; Webber v. Clarke, 74 Cal. 11" court="Cal." date_filed="1887-10-31" href="https://app.midpage.ai/document/webber-v-clarke-5443211?utm_source=webapp" opinion_id="5443211">74 Cal. 11; Manning v. Dallas, 73 Cal. 420" court="Cal." date_filed="1887-09-20" href="https://app.midpage.ai/document/manning-v-dallas-5443155?utm_source=webapp" opinion_id="5443155">73 Cal. 420; 2 Estee’s Pl. Sec. 3321.

In his brief, counsel for plaintiff has elaborately and at considerable length discussed the question as to whether the cause of action was barred by the statute of limitations. He insists that the record conclusively shows that after C. C. Loveland mortgaged the Deweyville land they, Snow and Loveland, agreed to hold the contract for the exchange of lands in abeyance until the expiration of the mortgage, at which time they were to make conveyance each to the other respectively, and that as a proposition of law plaintiff is entitled to recover, and that the plea of the statute of limitations ought not to prevail.

Plaintiff’s cause of action accrued when he discovered that Loveland had violated his agreement by mortgaging the land in question, thereby rendering it impossible for him to comply with the contract to convey the land to plaintiff. The subsequent verbal agreement between the parties that they would wait five years before executing deeds each to the other for the lands mentioned, while it would deprive Loveland of the benefit of the statute of limitations it would not preclude the subsequent grantees of their land who in good faith went into possession of the same under a claim of right, and without notice or knowledge of the agreement, from successfully pleading the statute, provided their possession was peaceable, uninterrupted, continuous, open, adverse and under claim of right and known to the plaintiff.

There is a conflict in the evidence as to whether or not the subsequent grantees had notice of the verbal agreement referred to, but the great preponderance of the evidence on this point is decidedly in favor of the defendant. And even if Mrs. Steed did know of this agreement but entered into possession of the property under a claim of ownership, and she and her grantees paid all taxes assessed-against it, and continued in peaceful, open, notorious and adverse possession under a claim of right for a period of seven years before the commencement of the action, and during said time the character of her claim and possession was known to Snow, and the great weight of the evidence shows - such to be the case, she and her grantee acquired title by adverse possession under the statute. , Armstrong v. Kisteed’s Lessee, 5 Ind. 256; Hale v. Gerdfelder, et al. 52 Ill. 91; 2 Wood Lim. Sec. 254; Buswell, Lim. & Adv. Pos. Sec. 230.

We find no error in the record, and the judgment of the trial court is therefore affirmed. The costs of this appeal to be taxed against the appellant.

Bartch, C. J. and Baskin, J. concur.