7 Utah 68 | Utah | 1890
The complaint in this case alleges that the plaintiff is the owner and entitled to the possession, rents, and profits ■of a certain piece of real estate situated in the city of .Salt Lake; that on the 14th day of November, 1879, the •defendant, Emma Geneva Wells, in an action in the third •district court of this Territory, wherein she was plaintiff, .and her husband, Daniel H. Wells, Jr., son of plaintiff lierein, was defendant, was by said court appointed a receiver to manage, lease, and rent said real estate, and .apply $40 per month of said rents to the use and support of herself and child, and hold the overplus of rents, if any, subject to the order of said court; that the plaintiff in this action was not made a party to said divorce proceeding, nor heard therein; that the defendant is still •collecting the rents of said property, and appropriating the same to her own use; that he has demanded of the
The court, in its findings of facts, found that “the defendant and Daniel H. Wells, Jr., were married September 22, 1874, and as issue of said marriage there was born October 2, 1875, Daniel Hanmer Wells, who is the first grandson of plaintiff; that in the latter part of the year 1874 plaintiff gave the premises in controversy to his son, Daniel H. Wells, Jr., and put him in possession of the same; and that the son conveyed certain other real estate situated in Salt Lake City to his father in consideration of said gift; that relying on said gift, and claiming exclusive ownership of said premises, the son began the erection of a dwelling-house and other improvements thereon, in 1875, which dwelling-house and improvements were partially completed previous to the execution of any deed therefor, and with the knowledge, advice, and encouragement of plaintiff; that a short time prior
In the divorce proceedings the plaintiff therein, defend.ant in this case, alleged in her complaint that she and her husband had by the deed from Daniel H. Wells, Sr., .an estate for life in the premises in controversy, with remainder in fee to their infant child, Daniel Han-mer Wells. The defendant by his answer in that case denied that he and his wife, or either of them, had any interest whatever in the property, and alleged that, by the deed, the grantor reserved to himself an estate during the life of his son, and of the plaintiff in that action. The court ordered that the said Daniel H. Wells, Jr., and all persons claiming through him, abstain from ¡selling, leasing, or incumbering the property, or in anyway interfering with this defendant’s right to manage “the same and collect the rents thereof. The deed from
“But, nevertheless, excepting and reserving from the-said grant the possession and use of the said premises, and every part and parcel thereof, with the appurtenances, for and during the natural life of Daniel Hanmer Wells, Jr., and also of his wife, Emma Geneva, if she shall continue to his death his wife, and shall survive him, and so long as she shall continue thereafter unmarried, and on the death of the said Daniel H. Wells, Jr., or in case the said Emma Geneva shall continue his wife to his death, and survive him, then, on her death or marrying, this exception and reservation shall wholly cease.
Counsel for appellant contend that, by the terms of his deed to his grandson, appellant reserved to himself an estate during the life of Daniel H. Wells, Jr., and during the life of the defendant if she should survive-him and remain unmarried; and that Daniel H. Wells,. Jr., prior to the divorce was only a tenant at will, and that after the divorce the defendant, as receiver, held the property as her husband had held it. While the-deed does not in express terms reserve an estate in the-grantor, yet, as an original question upon the construction of the terms of the deed, we think such would be-the fair and reasonable construction of the language-used. But in the divorce case the issue was presented by the pleadings as to whether or not Daniel H. Wells, Jr., was seized of a life-estate in.the property under the-deed, and while the court did not in express terms rule-on the question, yet, in appointing defendant receiver of the property and granting her the possession and rents, thereof, and enjoining said Daniel H. Wells, Jr., from in any manner interfering with such possession and use,, it must necessarily have construed the deed as vesting;
It is contended, however, that the- findings of the court that plaintiff gave the premises in controversy to-his son in 1874; that the son, and afterwards the defendant as receiver, acting under the belief that a life-estate was conveyed to the son by the deed, expended large sums of money in improving the property, with the consent and advice of plaintiff; and that plaintiff and his son practically construed and acted on the deed as conveying a life-estate to the son, — are unsupported by the-evidence. At the trial the plaintiff and defendant and Daniel H. Wells, Jr., and a number of other witnesses testified, and the evidence is all before us, and we have examined it -carefully, and think it sustains the findings. Bnt even if upon a reading of the testimony this court
The statutes of this Territory provide that no action for the. recovery of real property or for the possession thereof shall be maintained unless begun within seven years from the time the cause of action accrued. % Comp. Laws 1888, §§ 3131-3134. The court found that Daniel H. Wells, Jr., held the premises in controversy adversely to plaintiff from 1874 to 1879, first claiming to own the .same in fee, and, after the execution of the deed, claiming a life-estate; and that since November 14, 1879, the defendant has held the premises as receiver under the decree of the district court adversely to plaintiff, claiming an estate therein for the life of the said Daniel H. Wells, Jr., with full knowledge of such adverse claim ■and holding by plaintiff. The cause of action is therefore' barred by the sections of the statute above referred .to. The judgment of the district court is affirmed.