17 Utah 33 | Utah | 1898
This action was brought to quiet title to a certain piece of land referred to in the complaint. Upon an agreed statement of facts the court found: That on the 28th day of January, 1897, plaintiff recovered judgment against the Salt Lake Equitable Co-operative Institution for the sum of $5,074. An execution was issued thereon, and levied upon all the interest of the defendant, the Salt Lake Equitable Co-operative Institution, in a certain piece of land in question in this suit, by virtue of which defendant’s inter-, est was sold to plaintiff on March 16, 1897, and a certificate of sale thereof delivered by the sheriff. That on April 5, 1897, the said Salt Lake Equitable Co-operative Institution conveyed to plaintiff, for a valuable consideration, all its interest in said premises. That on November 17, 1891, the defendant, Caroline Black, was owner in fee and in possession of said land and premises claimed by appellant. That on that day, to secure the payment of $314 she was owing to said Salt Lake Equitable Co-operative Institution, she executed to it a deed absolute in form, but understood and agreed to'be, and was in fact, a mortgage upon said land. Thereafter, in the year 1892, said Caroline Black paid to said Salt Lake Equitable Cooperative Institution all said indebtedness arising under said deed, and demanded a reconveyance to her of said
The appellant contends that, because no notice of lis pendens was filed with the county recorder in said action of Black against Salt Lake Equitable Co-operative Institution, the appellant having acquired his interest in the property during the pendency of the suit to set aside the deed, he stands wholly unaffected by the decree of the court in said cause, notwithstanding he had actual notice of said suit, and the interest of said Caroline Black in said land, at the time he purchased under his execution sale, and obtained said conveyance. We do not concur in this. Under section 3206, Comp. Laws Utah 1888 (Rev. St. §
It is also claimed by the appellant that the cause of action on the part of the defendant Caroline Black versus the Salt Lake Equitable Co-operative Institution was barred by the statute of limitations, and that appellant has the right to interpose such statutory bar in this action. It does not appear from the complaint or findings in this case that this claim was made by the appellant in the court below, nor does the record disclose that such a defense was interposed anywhere. If the statute of limitations was interposed, the findings are silent upon that subject, and no objections or exceptions are raised to the findings. The findings were based upon the agreed state of facts, which were also silent upon that subject. If the appellant desired to interpose the statutory bar provided in section 3143, Comp. Laws Utah 1888, it was his duty to plead the statute creating the bar. This he did not do.