*1 so as requirement a notice to bar an unable, because action one who was infancy disability, comply or other its it has
with terms. And been so construe such statutes would deprive equal people
serve of that
protection very which the law
spirit of our demands. institutions there is a authority,
While division of better my reasoned mind cases are
contrary to the Hurley case and should be
followed. I would summary reverse the
judgment and remand this case for merits,
on the and would award no costs.
George R. Taylor, TAYLOR and Eva L. wife, Respondents, Plaintiffs and TURNER,
Jack C. Appellant. Defendant and
No. 12322.
Supreme Court of Utah.
Jan. Olsen, Richfield,
Tex R. respondents. CALLISTER, Chief Justice: *2 Plaintiffs initiated this action to recover separate types two claims; of in their action, plaintiffs first cause of sought a quieting decree property title real Salina, Utah. In their second cause of action, they sought repayment money of advanced in a series of to defendant loans January, 1962, September, through 1967. This matter was tried before court, declaring which rendered a decree plaintiffs prop- owners of the real erty, free and clear of all claims of defend- ant, judgment and a plaintiffs $11,666.99 costs; plus the sum of defendant appeals therefrom.
Defendant is brother Taylor, of Mrs. one versions transpired, events which as related parties, adverse are in A extreme conflict. survey record reveals substantial support evidence to the determination of therefore, the trial court; will this review findings be in accordance with these reflect a belief version According plaintiffs, de- transactions. 1962, approached in January, fendant them requested might go loan so that he Biele, Irving H. City, company. start Salt Patrick Australia to an insurance Lake Fenton, H. City, sixties, Taylor, Cedar for defendant and Mr. who was in his late appellant. Taylor re- contemplating retirement. Mrs. lated that check, her brother induced them to make which had a notation thereupon of funds, a short-term loan of their retirement “loan” “payment of loan.” for a year. months to six one He concedes that made promised per interest, them ten cent a rate him personal February,, loan of $1500 which he higher indicated was much than 1963, and he payments claims that the mad© they receiving were from the bank. Plain- Taylors solely were on this indebtedness. tiffs advanced to defendant about Plaintiffs’ final was made to $500 January 1962; promised defendant them September 1967; defendant defend- type shortly agreement, some of written ant claims that compensation this was through thereafter a document came in arranging plain- assistance a loan for mail, preincorporation which was entitled tiffs. agreement. typewritten At end of this agreement, acknowledged defendant had In impelled felt handwriting receipt $7,000. his own Utah, move from Salina, their home in be- January 16, Subsequently on about cause of certain neigh- disturbances in their advanced an additional They borhood. had listed the with *3 a realtor but had been unable to effect a Defendant asserted that the sum of seventies, sale. Taylor Mr. was in his re- by plaintiffs was participants invested as in tired, poor health; plaintiffs and in sought a business venture in Australia which procuring defendant’s assistance in a failed. He introduced in evidence a second they purchase so Aurora, could in a home preincorporation agreement, he in- which Utah. Defendant to arrange was able a loan parties. agreement the sisted was the of only upon but personal- terms where he was documentary denied that evi- Plaintiff this ly liable; plaintiffs conveyed so proper- the agreement pointed dence reflected their ty to Plaintiffs received a him. check for alleged out that this contract recited $10,313; subsequently discharged defendant agreed initial sum parties the the while including the loan interest and ex- their To substantiate advanced was penses. Defendant sold the on home a transaction, plaintiffs intro- of the version tract one to Herrara. Defendant does not policy an face duced insurance the deny security that the transaction awas $8,059, wherein defendant had amount of arrangement and stated that he would con- Taylor beneficiary as a means made Mr. the vey assign title and the the contract for policy re- providing security; of this was $7,000 cash. by plaintiffs approximately on ceived De- foregoing, cember 1963. Plaintiffs further re- the From the trial court found defendant, payments by ceived certain from defendant that as for the benefit trustee attempts making Defendant to convey thereof. re- the had them plaintiffs, provision preincorporation arrange fer to a in the financing and to him to secure to accounting agreement wherein an not sale, open court was that defendant a January him be made until obligation due to acknowledged that the be satisfied so would for the funds secured The trial court did not find this sum, in addi- $7,000. This sum agreement parties. document to be the by defend- payments made the three
tion to Taylor that defendant re Mrs. testified against plaintiffs, was offset ant to quested loan for a of six months a judg- in the of defendant total indebtedness year. pay promise An within one oral ment. year is valid and not within Statute appeal, defendant asserts On Frauds, party that a and the mere fact construing pre- trial court erred promise pay in violation of his failed and not agreement a loan incorporation as time, give stipulated within does not e., venture, the court i. speculative as a right him the statute.1 to invoke express alter the permitted parol evidence entire This of written contract. terms the funds Defendant asserts controversy predicated whether is are barred the Statute loaned loan parties was an oral agreement provided in of Limitations as Section venture. contract for a business or written U.C.A.1953, wherein an action 78-12-25(1), sharply conflicting, was The evidence upon an obligation not founded trial court was the determination be commenced writing instrument must court did adverse to defendant. payment years within four after the last but, contract, vary terms of a written following received. Defendant made evidence, it found that upon substantial 25, 1965, $800; payments: July (b) (a) not the presented defendant exhibit 2, 1966, $75; December (c) October parties. agreement of the this Plaintiffs commenced $100. 4, 1969, is within action on if there were contends that Defendant June four-year period. limitation money such an agreement an oral he made were payments urges that by the agreement Statute is barred *4 in incurred he U.C.A.1953, limited to the indebtedness Frauds, as 25-5-4(1), Section adopt defend- 1963; trial court did to the is not by its terms agreement which transaction; the interpretation ant’s year from the performed be within one 369, Danielson, Corp. Whitney, 1, 7, 12 2d 372- Utah Thompson v. Utah 20 v. 1. (1961). (1899) ; P.2d 982 366 see Zions Service also P. 57 429
43 transferor, trust can- for the but no memo- factual determination which a this was properly evidencing randum appeal. the intention disturbed on not be signed, required by to create a trust as court that trial Defendant contends Frauds, transferee Statute in its that determination erred trust, perform to refuses the trans- property in the owners of the real were feree holds interest Salina, Utah, held the and that defendant transferor, if structive trust property funds in trust secure certain to ****** paid plaintiffs. were to Defendant Frauds, pleaded the Section Statute of (c) security was made transfer as 25-5-1, U.C.A.1953; there urges that he for an indebtedness transferor. concerning writing in was no instrument court in The trial did not err its property. alleged relating
this trust to real deed, although determination ab 25-5-2, U.C.A.1953, provides: Section form, in was in fact solute executed as preceding The next section [25-5-1] security money.3 for a loan of Defendant pre- to shall not construed he ... trustee, was a constructive who title any arising being ex- vent trust from or plaintiffs. secure the funds advanced tinguished by implication operation or law. Finally, defendant contends that the in court erred the amount of the in 2 Jennings In Wasatch this Mining Co. v. by debtedness incurred defendant for the foregoing court construed the statute benefit regard prop in to the arising implication stated trusts or erty subject trust. Defendant ex operation expressly of law excluded are pended in $7,000 funds far excess of the Frauds; effects Statute of repay mortgage procured, loan he as and, conveyance, deed though absolute well selling expenses. as the Defendant form, debt, given if is in secure a sold the for with a equity treated as trust —a payment down and the remainder con operation of law. proclaimed tract. open court Restatement, Trusts (2d), Section assign that he would his interest in the con provides: cash; tract explicitly ex (1) Where the owner of an interest tended this offer to Based on land transfers it the foregoing, inter to another vivos trial court determined Corey (1887). Roberts, 2. 5 Utah 15 P. 82 Utah 25 P.2d (1933). *5 obligation that the to defendant of the was turned plain- over to the $7,000. to be satisfied for Defendant has tiffs. any ground asserted which to Ultimately the defendant with his own
predicate prejudicial error. money paid the and note had judgment The the trial court released. The property then stood his respondents. Costs to affirmed. appears name. It actual cash out- lay as a result of the transaction was as TUCKETT, HENRIOD and CROCK- follows: ETT, JJ., concur. premi-
Additional insurance updated um for ELLETT, insurance 99.00 (concurring and dis- $ Justice Land and Title Insurance senting) : Policy 83.00 holding I concur that whether the 1,527.88 Interest on loan money plaintiffs advanced to the policy Additional insurance defendant was a loan or an investment was for extended of note 221.00 question for to deter- the trier fact Payment of interest and mine. The court on believable evidence principal 11,253.66 of note having matter, plaintiffs found for on this Commission on sale 240.00 However, we should affirm. the credit for City curbing of Salina and $7,000 should not stand. gutter assessment 48.00 The money buy needed One half of escrow fees 10.00 house, new and being unable to sell their Miscellaneous costs old home requested or to on it borrow Tucker Real Estate 59.19 get defendant to them. The loan $13,541.73 Total could only be secured if the defendant were Consequently, borrower. a deed was addition, he required spend In was prepared and executed siderable time and effort connection transferring the home to the defendant. with the claimed transaction. At property, thinking to own the that he
The
best offer which
had for
had,
old, paid
like Ben
more
Franklin
the sale
of the house was
How-
worth,
ever,
for his whistle than it was
stated
defendant secured a loan in the face
get
amount
happy
be
cash
on his note and mort-
he would
gage,
from which
the net amount
for it.
place in trust Utah, The STATE Plaintiff gave agent securing The court the loan. Respondent, against judgment the defendant
money ordered he had borrowed also PACHECO, Appellant. *6 Ted home back him to transfer the title No. 12589. court, claiming to Then the Supreme Court of Utah. word, take at his allowed the defendant Jan. amount only him a credit for willing he said he to sell the home would be is, holding
for. That him as the court
trustee of the and find- house for
ing only agent had been for them he loan, securing allowed him as credit money actually only paid had out
the value of the house instead of actually spent. he had amount part no received and stood paid any cost of nor interest the loan
thereon. just
This does not sense to me. make to be
Inasmuch as court held him home,
mere not sell trustee of he could
it for any or for other sum. If he only agent justice
getting the it seems me that require
would that he be reimbursed for his outlay
total clearing
the land.
I would remand the case with direction to the trial court to allow the defendant a Athay, Legal D. Gilbert Salt Lake De- outlay credit for of his all the transaction Assn., City, appellant. fender Lake Salt and to any consider whether additional Romney, Gen., allowance Atty. should be for his I made trouble. Vernon B. David Gen., would Atty. Young, Larry otherwise affirm the trial court. S. Chief Asst. V.