174 P. 164 | Utah | 1918
Lead Opinion
It would be futile to attempt to pass upon the merits of the ease on this appeal. We shall therefore refer to the record only for the purpose of showing why the case legally cannot, and, as a matter of justice to all the interested parties, should not, be determined on the merits by this court.
The action originated in the justice court between Matthew McB. Thomson as plaintiff and Charles Reynolds as defendant, as an action of unlawful detainer, under Comp. Laws 3907, section 3575. The complaint was filed and summons issued pursuant to the provisions of section 3580, and the allegations of the complaint are the usual ones in such actions. The plaintiff prayed judgment for restitution of the premises and for damages, etc. The defendant filed an answer, in which he denied that the plaintiff was the owner of the premises; denied that the plaintiff demanded possession thereof; denied that defendant had refused to surrender possession of the premises; denied that he was in default of the payment of-the rent as alleged in the complaint; and, as an alleged affirmative defense, averred that at all times mentioned in the complaint one Mary Atkinson was the owner of the demanded premises, and was in the quiet and peaceable possession thereof, and that, for the reasons just stated, Mary Atkinson was a necessary party to the action. Defendant further averred that at the commencement of this action another action was pending between the plaintiff and said Mary Atkinson in the district court'of Salt Lake County “for the same cause of action as that in the complaint herein stated and alleged”; that the court was without jurisdiction for the reason that the title to the premises was involved. The answer ended with the following prayer: “Wherefore this defendant prays that said Marj^ Atkinson be made a party defend
After the answer was filed Mary Atkinson filed what is called a “Petition in Intervention,” in which she asked that she be made a party to the action. The justice did not act upon said petition, but made the following order: “It is hereby ordered that this cause be transferred to the district court of Salt Lake County, state of Utah. ’ ’ The case was accordingly certified to the district court of Salt Lake County.
No order permitting Mary Atkinson to file an answer was ever made' by the justice court, nor did she ever file an answer in that or in any other court. At the trial the district court, however, recognized her as a party, and permitted her to defend under the answer filed by the defendant Eeynolds, the substance of which we have before stated. The complaint and the answer aforesaid are the only pleadings that were ever filed in the case by any one.
The case was heard on those pleadings, and the district court made findings of fact, conclusions of law, and entered judgment in favor of the plaintiff quieting title to the premises in Mm, from which judgment Mary Atkinson appeals, and she will be hereinafter designated 'as appellant.
The assignments of error filed in this court when the case was first appealed are as follows:
“(1) The court erred in overruling the demurrer to the complaint; (2) the decision is against law; (3) the decision is contrary to the evidence; (4) the evidence is insufficient to justify the decision.”
The only question argued by appellant’s counsel in his original brief was that the premises constituted the homestead of the appellant and her husband, and that, under the provisions of Comp. Laws 1907, section 1207, she could not be removed from said homestead against her will. Counsel for respondent in Ms brief insisted that appellant’s assignments of error were insufficient, and that by arguing only the one question before stated he had waived all other assignments of error, and hence the only matter that counsel for respondent argued was the question of appellant’s rights under section 1207 aforesaid. Bespondent’s counsel further contended that
The case was submitted to this court upon the propositions just outlined. The members who then constituted this court being unable to agree, a reargument of the case was ordered, which was duly had. On the second argument the writer called the attention of appellant’s counsel to the character of his assignments and to the limited claims presented by him in his original brief. Counsel who had represented respondent at the trial and at the original hearing in this court had died before the second argument took place. Appellant’s counsel then asked leave of this' court to prepare and file additional assignments of error and in connection therewith to prepare and file a supplemental brief. Leave was granted, but counsel never did file additional assignments of error as required by rule 26 of this court. He, however, filed what he called “Amended Assignments of Error and Brief” in the form of a printed supplemental brief in which the additional assignments of error were printed. The so-called amended assignments of error are as follows:
“(1) The district court did not have jurisdiction of the appellant nor of the subject-matter of the action; (2) the complaint does not state facts sufficient to constitute a cause of action against appellant; (3) the decision is against law; (4) the judgment is contrary to the pleadings and the evidence.”
In the supplemental brief filed counsel argued four propositions: (1) That the district court Avas without jurisdiction; (2) that the complaint is insufficient in substance; (3) that the district court’s decision is “against law”; and (4) that “the judgment is contrary to the pleadings and evidence.”
The case was again submitted on all of the assignments of error and arguments, and again no conclusion was reached by ■this court as then constituted. Thereafter the membership of this court was increased from three to five. At the last term the case Avas again argued to the five members upon the assignments and briefs before stated.
It is, however, insisted that the parties tried the case at bar as an equitable action. Such was also the case in Welling v. Abbott, supra. Let it be assumed, however, that the parties actually stipulated to do that, which they did not, and yet the pleadings are wholly insufficient to support a decree quieting the title in either of the parties. We had assumed that the question that a decree or judgment must be supported by the pleadings, or at least by the record, had been settled, in this jurisdiction at least, in the case of Rosentlvyne v. Malfhews-McCulloch Co., 51 Utah, 38, "168 Pac. 957. We are not unmindful of the contention that the parties, at least tacitly, agreed to try the case as an equitable proceeding. If that be conceded, however, it still has no effect upon what the result should be. If this case had in ’fact been commenced as an equitable action, yet, if the pleadings were as they now are, and hence did not sustain the judgment, the result must be the samo. Moreover, under the repeated rulings of this court, neither appellant’s assignments of error nor the arguments in her counsel’s brief entitle her to affirmative relief. In view of the whole record, the most she is entitled to is a reversal of the judgment for the reasons stated. If she should be awarded affirmative relief on this record the plaintiff would be deprived of his day in court, for the reason, as before stated, that in reliance on the court’s ruling in excluding all of appellant’s testimony on the question, of advancing money to her husband, respondent’s counsel waived cross-examination, and, in view that appellant’s complaint was admitted only to prove the pendency of the former action, he presented no evidence in opposition to appellant’s evidence, but rested the case in, the belief that no evidence had been produced by the appellant upon the alleged claim of ownership or the resulting trust. If the excluded evidence were now considered, and the self-serving statements of appellant in her-complaint were now treated as competent evidence, the plaintiff would be prevented from presenting his side of the case.
We are of the opinion that the judgment should be, and it
Appellant to recover costs.
Concurrence Opinion
I concur in the order reversing the judgment. I am of the opinion, however, that the trial court should be directed to dismiss the action, and hence I dissent from the order directing the lower court to permit the parties to recast their pleadings and to permit plaintiff to substitute for this action another and different kind of action.
The purport of the prevailing opinion, if I correctly" understand it, and the order directing the lower court to permit the pleadings to be amended, is to permit the plaintiff to convert this case, which is a law action, ‘into an equitable action. In other words, this court in effect says to the plaintiff (whose course of conduct, and that of his coadjutors through whom he claims to deraign title to the property in question in their effort to acquire the legal title to, get possession of, and permanently dispossess and deprive Mrs. Atkinson of her home, is more in harmony with that of the buccaneers and freebooters of the middle ages than it is with modern equitable principles and rules of procedure). “You have been unable in a legal action to deprive this woman, who is worse than widowed, of her home because of certain statutory impediments. Amend your complaint and convert the action into an equitable one, and the courts may, by the application of equitable rules, legalize the illegal methods by which you acquired your claim of title. ’’ This ought not to be. The record in this case shows conclusively that Mrs. Atkinson is the only person connected with, or interested in, this- litigation who has come into court
To correctly reflect and fully illustrate the equities of this case it will be necessary to review, somewhat in detail, certain facts and circumstances long antedating the particular transactions upon which plaintiff relies to support the judgment of the trial court, which is in his favor.
The record shows that on March 25, 1881, Mary Atkinson and William J. Atkinson intermarried in Partick, by Glasgow, Scotland. Some time prior to 1907 they came to this country, and located at Bridgeport, Conn., where Mrs. Atkinson for a considerable length of time worked in a silk factory. She also worked in a silk factory in Paterson, N. J. During the time she worked in' these places she saved and deposited in a bank over $1,600. She testified that she turned that money over to her husband, William J. Atkinson, with the understanding that he would come to Utah and purchase a home, and that in pursuance of this arrangement Atkinson came to this city and purchased the property involved in this action. Soon after Atkinson came to. this state his wife went to Seattle, Wash., and from there she returned to Bridgeport, Conn. In the meantime Mrs. Atkinson wrote to her husband and he was otherwise advised of her whereabouts. On the 14th day of August, 1909, William J. Atkinson commenced an action in the district court of Salt Lake County against his wife for a divorce. The purported service of summons was had by publication. Atkinson in his affidavit for
Plaintiff testified that Atkinson and McLeese “were members of the same society' — an old country society’’; that he had met McLeese but once before the execution of the deed; that as consideration for the deed he paid Atkinson $100 cash and agreed to assume the mortgage indebtedness. “Q. Have you the deed in your possession? A. No; I don’t know who has it; I think Mr. Atkinson took it to be recorded, and I don’t think I got it back. * * * I paid but little attention to it after this lawsuit started” (referring to another suit brought by Mrs. Atkinson to quiet title to the property). Plaintiff, however, does not claim to deraign title through this deed, nor does he claim that it is in any sense a link in his alleged chain of title. It is manifest from the record that the transactions involving the propérty to which McLeese was a party were not made in good faith, and that the consideration, if any. was inadequate.
Plaintiff further testified that before purchasing the sheriff’s certificate of sale he consulted C. S. Patterson in re
“that on the 14th day of November, 1914, at the time of the commencement of said action to set aside said decree for divorce, the said plaintiff, Mary Atkinson, filed and had recorded a lis pendens, and at the same time and place made her declaration of homestead on the premises above described in the manner provided by law, which lis pendens and declaration of homestead was duly recorded in the office of the county recorder of Salt Lake County, Utah, the county in which said premises is situate, and which was thereafter duly recorded in book '2 — D’ of Declarations, at nage 358.”
• The plaintiff in giving his testimony in the case at bar admitted that he received a copy of the complaint containing the foregoing allegations. He also admitted that Mrs. Atkin
“offered to redeem said premises from the said purchaser (Mrs. Y. D. Patterson) within six months after the sale under the foreclosure of said mortgage, by paying the purchaser the amount of her purchase in the kind of money or currency specified in the judgment, with interest at the rate of 6 per cent, thereon in addition, together with the amount of an3r assessment or tax the purchaser may have paid thereon after purchase and interest on such amount at the rate of 8 per cent, per annum from the date of sale, * * * and now brings into court the said sum of money for which said premises were sold, * * * together with any assessment or tax which the purchaser may have paid thereon after the purchase, and interest on such sums. ’ ’
It is also alleged that a like tender was timely made by Mrs. Atkinson to the sheriff of F>a1t l ake County on behalf of the purchaser. She, for some reason not disclosed by the record, was not permitted to redeem the property from the foreclosure sale. The refusal to permit Mrs. Atkinson to redeem the property is important, when considered in connection with the other facts and circumstances referred to, as it tends to show that Atkinson, Mrs. Y. D. 'Patterson, and McB. Thomson, plaintiff herein, were, under the advice of C. S. Patterson, determined to employ, under the guise of law, every means at their command to dispossess Mrs. Atkinson of her home and deprive her of her interest therein, regardless of the unconscionableness of the methods adopted. And as here
The record shows the improvements on the premises in question consists of a house of four rooms; that Mrs. Atkinson, at the time the action was commenced and when the judgment appealed from was rendered, occupied — lived in — two of the rooms and rented the others to one Charles Reynolds, .who, with his "family, occupied the same as his residence.
On March 7, 1914, Matthew McB. Thomson, plaintiff herein, commenced this action in the justice of the peace court of Salt Lake precinct against Reynolds for unlawful detainer. In the complaint it is alleged that plaintiff is the owner of the premises, and "that at the time the plaintiff became the owner by purchase of said premises the defendant was occupying the same without right, title, or interest therein, being a trespasser upon said premises, and not having paid any rent therefor.” Plaintiff prayed "judgment for the restitution of the premises and for damages.”
Reynolds filed an answer in which he denied the allegations of ownership in the complaint and other allegations therein contained on Avhich plaintiff relied for a recovery; and he affirmatively alleged, among other things,
"that at all times in said complaint mentioned one Mary Atkinson was, and now is, the owner of the premises named and described in said complaint, and that at all times in said complaint mentioned the said Mary Atkinson was, and now is, in the quiet, peaceable, and exclusive possession of the said premises and the whole thereof, and that this defendant is a sub-tenant under a lease from the said Mary Atkinson.”
It was also alleged in the answer that, by reason of Mary Atkinson’s ownership of the property, she "is a necessary and proper party to the action.”
The case was certified by the justice’s court to the district court of Salt Lake County.
When the cause came on for trial in the district court Mrs. Atkinson was permitted to intervene, and it was stipulated and agreed between the parties in open court that the answer filed by Reynolds in the case should be treated and considered
The court made findings of fact in favor of Matthews McB. Thomson on all of the issues. As conclusions of law the court found:
(1) “That the plaintiff McB. Thomson is the owner of the premises described * ® * and the whole thereof, and is entitled to a decree quieting his title thereto, and to a writ of possession of said premises. ’ ’
(2) “That the defendant Charles Reynolds has no interest or title to the said premises, or any part thereof, and no right whatever to the possession of the same, or any part thereof.”
(3) “That the defendant Mary Atkinson has a one-third interest in the premises contingent on the death of the said William Atkinson if she still remain his wife and survive him; that she has no present right of possession in or to said premises, or any part thereof.”
A decree in harmony Avith, and predicated on, the findings of fact and conclusions of law was duly entered.
The errors assigned, on. which the cause was first argued in this court, are:
■ (1) “The court erred in overruling the demurrer to the complaint. ’ ’
(2) “The decision is against law.”
(3) “The decision is contrary to the evidence.”
(4) “The evidence is insufficient to justify the decision.”
As stated in the prevailing opinion, on the first hearing of the case before this court, “the members who then constituted this court being unable to agree, a rehearing of the ease was ordered.” No agreement was then reached because an opinion was prepared and submitted that affirmed the judgment of the trial court, thereby permanently dispossessing and depriving Mrs. Atkinson of her home. Of course, under these circumstances, a disagreement in this court as it was “then constituted” was inevitable. An amended assignment of errors was printed in connection with a supplemental brief; that is, the assignment of errors and the supplemental brief were printed in one document and in this form was
The trial court ruled the case, as shown by the record, solely on the theory that Atkinson gave the mortgage and Patterson accepted it in good faith, and that it was given for a valuable consideration.
The record, when considered in its entirety, does not support or justify the conclusions,arrived at by the trial court. On the contrary, the several transactions referred to, involv
The record, shows that after the perfidy of Atkinson was
“ Every person dealing with land must take notice of an actual, open, and exclusive possession, and where this, concurring with the interest in the possessor, makes it homestead, the lender stands charged with notice of that fact.”
Furthermore, the record shows that plaintiff had actual notice of the character and extent of the interest Mrs. Atkinson claimed to have in the property, and that he had actual notice that she claimed it as her homestead. He admitted, while testifying, that he was served personally with a copy of the complaint offered in evidence, in which it set forth Mrs. Atkinson’s claims of an interest in the property, also that she claims it as her homestead. His evidence on this point was
The important and decisive question is1, who is entitled to the possession of the property, Mrs. Atkinson or Matthew McB. Thomson? It is insisted on behalf of Mrs. Atkinson that she is entitled to remain in possession under the Homestead Act, tit. 32, Comp. Laws Utah 1907. The act, so far as material here, provides (section 1148) :
"If the homestead claimant is married, the homestead may be selected from the separate property of the husband, or, with the consent of the wife, from her separate property.”
The record in this ease shows no declaration of homestead was made until after the property was sold at sheriff’s sale under the foreclosure proceedings, but that a declaration was made, filed, and recorded before Matthew McB. Thomson purchased and had assigned to him the sheriff’s certificate of sale. It is therefore urged in behalf of respondent that Mrs. Atkinson, having failed to make, file, and have’recorded a declaration of homestead until after the property was sold under the foreclosure proceeding, waived her right to claim the property as a homestead.
Comp. Laws Utah 1907, section 1149, provides that:
"Any person who is the head of a family may make a declaration of homestead in the manner provided in the next two sections, but a failure to make such declaration shall not impair the homestead right.”
Section 1207:
"Neither the husband nor wife can remove the other, or their children, from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family. ”
It will be observed that under the foregoing provisions of the statute the failure to file a declaration of homestead as therein provided "shall not impair the homestead right.” Mrs. Atkinson therefore did not waive her right to occupy the property in question as her home by failing to file a declara
For the reasons herein stated I am clearly of the opinion that the case should be reversed, with directions to the lower court to vacate and set aside the findings of fact and decree heretofore made and entered, and to dismiss the action.