11 Utah 344 | Utah | 1895
Plaintiff avers in his complaint that one Thomas H. Cope died intestate in 1864, and at the time of his death was the owner of lot 5, block 3, plat CiB,” Salt Lake City, and lot 16, block 18, Big Field survey; that said lots were distributed by a decree of the district court to thp defendants Thomas H. Cope and George H. Cope, as
The complaint then alleges adverse possession of lots 5 and 16; that said Margaret Cope never questioned, nor
We will first consider the points involved in the second question. Appellants contend that a parol partition of lands is within the statute of frauds, and therefore invalid. Section 2831, Comp. Laws Utah, provides “ that no estate or interest in lands, * * * nor any trust or power relating thereto, shall hereafter be created, granted, assigned; surrendered or declared unless by act or operation of law or by deed of conveyance in writing subscribed by the party, ” ■etc. In support of the appellants’ contention, 1 Washb. Deal Prop., and Browne, St. Frauds, are cited. In the first-named work it is stated that no parol partition can be effectual unless accompanied by deeds from one coten-.ant to the other, inasmuch as the statute of frauds applies fio such cases. If this means that no rights can be acquired by coparcenei’s either in equity or law under a pa-rol partition, when they have followed the partition by actual possession in severalty, we cannot assent to the doctrine. Undoubtedly, this view has been entertained by the English courts, and many of the American courts, as well as text writers of respectability; but we think the •better rule to be the one which is most equitable, viz: -“That a parol partition, carried out and followed by .actual possession in severalty of the several parcels, is •valid, and will be enforced, notwithstanding the statute
In the case of Ayers v. Jack, supra, the oral partition of lands herein described was sustained. After Thomas H. had disposed of his lot (16) to Jack, Ayers and others thought they discovered a defect in the purchaser’s title, and obtained a deed from Thomas H. and his wife and ■Janet for the same parcel of land. They were told: “They took all the chances of the purchaser;” and it .appears the grantors made no claim to the land. Suit was brought, and the defendants set up an equitable title, .relying upon the oral partition. The court held that the. “ equitable title ought to be protected and enforced, and that the plaintiffs, having bought with knowledge of the defendant’s rights, can take nothing by their deed.” Notwithstanding the statute of frauds, it is not regarded .as an insuperable objection to the maintenance of an equitable defense by a purchaser of land .under a parol sale. Possession taken under the contract of sale takes the case out of the statute. There seems to be no good reason why this doctrine should not apply to parol partitions.
We think there is an analogy between cases where it is sought to enforce a parol partition and those which receive equitable cognizance growing out of a parol sale of lands. The burden will rest upon the party affirming the-existence of the oral contract of sale, and also who claims-under the parol partition; and equitable relief should only be granted in the latter case when the partition is equitable, and when the parties act understandingly. But it is argued by the appellants’ counsel that at the time of the alleged partition, in 1867, the two sons of the deceased were minors, and not only did not participate in the partition proceedings, but, owing to their tender years, were-unable to comprehend their rights or the nature of a partition, even if explained to them. This feature of the case was presented to the court in Ayers v. Jack, supra, as shown by the record; and, while there is no reference-to it in the opinion, it is clear the court did not deem it. objectionable to the partition, under the facts of the case. We have no hesitancy in saying that upon attaining their majority, and after a full understanding of their rights and the partition previously made, if there was no ratification and confirmation of the partition by them, it.
2. Was a partition made, and, if so, did the parties acquiesce in and ratify it? Thomas Cope died in 1864. .His family consisted of his legal wife, Janet, Thomas n.,
We think the evidence is sufficiently definite and certain, to justify the finding that a parol partition was made, and that all parties acquiesced therein; and it was not error to admit the deposition of the witness Moon, who was one of the persons selected to partition the property, and whose-testimony was confined solely to the question of partition.. After ascertaining the facts regarding the partition, and several years after becoming of age, George H. conveyed his lot. His conveyance under the circumstances, and the-appropriation of the proceeds, not only ratified the partition made during his minority, but, if anything was lack- . ing upon his part to complete it, operated to complete the-partition and render it binding. Eaton v. Tallmadge, 24 Wis. 217; Buzzell v. Gallagher, 28 Wis. 678; Millican v. Millican, 24 Tex. 426; Markoe v. Wakeman, 107 Ill. 251 v. Jackson v. Richtmyer, 13 Johns. 375; White v. Clapp, 8 Metc. (Mass.) 370; Piatt v. Hubbell, 5 Ohio, 243. As. above stated, this court, in Ayres v. Jack, has sustained this parol partition, and the facts developed in the case at. bar seem to have been fully presented upon the trial of that cause. While that case is not res judicata, it seems, the doctrine of stare decisis ought to be invoked, especially when there is nothing manifestly erroneous in the decision. Hpon principles of judicial propriety, as well as the importance of having the law fixed and certain, a court ought to respect its own decisions; and in analogous cases there would seem to be the greater reason for adhering to them, where the facts are the same, though between different parties. Kolb v. Swann, 68 Md. 516, 13 Atl. 379; 2 Black,
It is insisted by counsel for appellants that Janet’s possession could not be adverse in its character, because the lot was the homestead of her deceased husband, and she ■held a life interest therein. In 1868 the land laws of the United States were extended over Utah, and the mayor’s ■entry was made in November, 1871. Lot 5 was included in the land actually settled on and occupied as a town, ■and was reserved from a private sale, and no title to it could be acquired: except under the townsite act of 1867 and the laws of Utah passed in pursuance thereof. Thomas Cope had no estate whatever in said lot, not even an inchoate right. He could not devise it and give title, and it would not pass to his heirs. No interest that he possessed could be the foundation upon which to predicate a homestead title, and out of his naked possession no estates in life or remainder could be carved. Buxton v. Traver, 130 U. S. 232, 9 Supt. Ct. 509; Missionary Soc. of M. E. Church v. Dalles City, 107 U. S. 336-345, 2 Supt. Ct. 672. We do not mean to hold that a homestead can only be based on a title. In the case at bar, after Cope’s death, the possessory title vested in another, and no homestead could exist upon the creation of a new title. Wap.
It is argued that this was no change in the' character ■of Janet’s holding; that, having held as the wife of the deceased, the presumption is that she continued as a life tenant until there was an actual disseisin. After partition of the land, each owned in severalty an interest equal to that which before had been held in common, and a new possession is not essential. It need not be taken in pursuance of the partition; for as all the cotenants are in possession at and prior to the partition, there need not be any new taking of possession. It is sufficient that, after the agreement for partition, each retains possession -of and exclusively occupies that tract set apart to him by such agreement. Freem. Coten. p. 516; Hauk v. McComas, 98 Ind. 460.
It is contended that the proceedings in the probate court negative the idea of a partition, and conclusively establish that both" Janet and Thomas H. claimed only by descent. This issue was presented by the pleadings, and found adversely to plaintiff, and we think the evidence justifies the finding. Besides, the probate court only declares the lights of the heirs under the law of succession. Chever v. Ching Hong Poy, 82 Cal. 68, 22 Pac. 1081. And in this •case Thomas Cope had no property subject to administration. The fact that the mayor’s deed to lot 5 named the administrator as grantee does not alter the situation. The administrator held the title to lot 5 in trust, and the probate court had no jurisdiction to distribute. Buxton v. Tracer, 130 U. S. 232, 9 Sup. Ct. 509; Burns v. Hamilton, 33 Ala. 210; Cobb v. Stewart, 83 Am. Dec. 467;
It is contended by appellants that the proceedings in the probate and district courts, the petitions filed and reports made, are incompatible with the theory that there was a partition, and conclusively disprove it. While there-is some foundation for their view, the record shows that evidence was introduced which tends to explain-the seeming incongruities, and support the respondents’ position that the parol partition was recognized by all, and became-the basis of acquired rights; and, the referee having taken this view, we feel there is no occasion or warrant for disturbing his findings. We find no error in the record, and affirm the judgment, with costs.