180 P. 433 | Utah | 1919
Plaintiff brought suit in equity against the defendant for an accounting with respect to certain personal property and to recover a judgment for the profits, income, and increments arising therefrom. Both of the parties to the action appear in representative capacity.
The answer admitted the allegations with respect to the marriage relationship, death, and representative capacity of the parties and denied generally the other allegations of the complaint. As a further defense defendant pleaded that plaintiff’s alleged cause of action was barred by the statute of limitations, and by the laches of the parties interested in the estate of plaintiff’s intestate. More specifically with respect to the laches of the interested parties, it is alleged in the answer that at the time of the death of Flora M. Broadhead
The trial court found the issues for the defendant.
On appeal the plaintiff assigns as error certain findings of the court, of which we need only consider the following:
(a) The court finds that no partnership was ever entered into between the said Robert Broadhead, deceased, and the said Flora M. Broadhead, deceased, and that Flora M. Broadhead never did contribute to the said Robert Broadhead the property referred to and described in plaintiff’s complaint; that the said Robert Broad-head never did come into the possession of said property, nor did the said Robert Broadhead retain any property belonging to the said Flora M. Broadhead, or have any property or interest in prop*323 erty belonging to the said Flora M. Broadhead, in his possession ■at the time of his death.
The record is absolutely void as to proof of any partnership ever having been entered into between the plaintiff’s intestate, Flora M. Broadhead, and defendant’s intestate, Robert Broad-head. There is some testimony tending to show that in 1860, or thereabouts, Flora M. Broadhead moved from Provo to Heber City with her family, then consisting of five minor children of a former marriage; that she took with her at that time a yoke of oxen, about twenty sheep, a few cows, an old wagon and some household furniture of indefinite value. She, with the children, took up her abode in a small cabin at Heber City, where she resided until some time in 1862, when a polygamous marriage was entered into between herself and Robert Broadhead. Thereafter she, with her children, lived-with Robert Broadhead upon his ranch near Heber City. As to whether any of the property taken from Provo to Heber City was taken to the ranch the testimony is very vague and uncertain. Isaac Baum, a witness for the defendant who lived across the road from Flora M. Broadhead while she and her family resided in Heber City, testified that he did not know of her having any cows or sheep, but that she did have at that time a couple of oxen and a wagon; that she lived by him until she married Broadhead, when the wagon and oxen went to her boys; that some of the boys lived away from the Broadhead ranch, that they used the wagon and oxen in their work, and that Robert Broadhead made no claim to them. This witness was probably as familiar with and in as good a position to testify concerning the property of Flora M. Broadhead when she married Robert Broadhead as any witness -who testified. None of the witnesses, however, testified that Robert Broadhead had at any time possession of or claimed any interest in the property described in the plaintiff’s complaint, except, possibly, two old bedsteads used in the home after the marriage. True, there were some cows and sheep upon the ranch, and some of the witnesses testified that the oxen were used on the ranch, and that the cows brought from Provo by plaintiff’s intestate were taken to and milked
“(b) The court further finds that the cause oí action, if any-stated, in plaintiff’s complaint, is barred * * * by the lapse of time and the laches of the persons interested in the estate of plaintiff’s intestate.”
This finding is amply sustained by the record. For a period of 37 years after the property described in the complaint is alleged to have come into the hands of defendant’s
For the reasons pointed out we are of the opinion that the findings of the district court in defendant’s favor are sustained, and that the judgment dismissing plaintiff’s cause of action «should be affirmed. It is so ordered. Respondent to recover costs.