Clark v. Kirby

• Decision Date: 19 December 1898
• Parties: B. B. CLARK, APPLICANT FOR DEED UNDER TOWNSITE ACT, RESPONDENT v. KIRBY & WILSON, ADVERSE CLAIMANTS, APPELLANTS
• Court: Utah Supreme Court

55 P. 372

18 Utah 258

B. B. CLARK, APPLICANT FOR DEED UNDER TOWNSITE ACT, RESPONDENT v. KIRBY & WILSON, ADVERSE CLAIMANTS, APPELLANTS

Supreme Court of Utah

December 19, 1898

Appeal from the District Court of Juab County, Hon. E. V. Higgins Judge.

Application by C. W. Clark for a deed under Section 2817 C. L. Utah 1888. Kirby and Wilson filed their adverse claim for a deed to the same lot. C. W. Clark was allowed to amend his petition showing that he was the agent of B. B. Clark, and on the hearing, a deed to the lot was ordered to B. B. Clark and the application of Kirby and Wilson dismissed. From that judgment Kirby and Wilson appeal.

Affirmed.

Messrs Dey & Street and W. H. Bramel, Esq., for appellants.

The court erred in permitting C. W. Clark to amend his application by making B. B. Clark applicant therein. It is beyond the jurisdiction of the court to make such an amendment, an amendment which affects an entire novation of parties on one side or the other is in substance the institution of a new suit and cannot be made. Dubbers v. Goux, 51 Cal. 153; Little v. Virginia, etc., Water Co., 9 Nev., 317; Elberg v. County, 112 Cal. 316; N.Y. Milk Pan Association v. Remington, 89 N.Y. 22; Sterret v. Barker, 51 P. 695; Wood v. Life Ins. Co., 56 N.Y. 8; Hallet v. Larcom, 51 P. 108; 1 Enc. Pl. & Pr., 545.

There is no evidence to support the finding of the court to the effect that R. entered upon said lot and built said house under claim of right or under an agreement with C. Lockwitz v. Larsen, 52 P. 279.

Any subsequent claimant must derive his title from C. under some method recognized by law. Under our law it requires an instrument in writing to pass title to real property from one person to another, unless title comes through adverse possession which presumes an instrument as the original source of title. 2 Comp. Laws, 1888, Sec. 2831; 2 Comp. Laws, 1888, Sec. 3916; Anson v. Townsend, 73 Cal. 415; Hall v. Wallace, 88 Cal. 434; Hopkins v. Noyes, 2 P. 280; Allen v. Mansfield, 18 S.W. 901; Jones on Evidence, Sec. 416.

The court erred in permitting Clark to give in evidence the deed of R. to P. This deed was of no force unless it was shown by proper and competent evidence that R. owned the land described in the deed. No such showing was made. The title was shown to be in C. on January 23d, 1891, and it could pass from him to R. only by deed, will, or decree of court.

If any contract existed between C. and R. it could only be valid by compliance with the law. Swash v. Sharpstein, 44 P. 862; Churchill v. Stephenson, 45 P. 28; Williams v. Morris, 95 U.S. 456.

The court erred in allowing applicant Clark to give evidence as to the statements made by C. as to agreements between C. and R. Any contract or agreement affecting or transferring the title to real property can be shown only by writing.

Messrs. Powers, Straup & Lippman and Edward Pike, Esq., for respondents.

Courts always exercise a liberal discretion in allowing amendments, and unless some injustice has been done or hardship wrought a judgment should not be reversed because of amendments allowed.

It was on the doctrine of estoppel that the court awarded title to respondent, and the only question is whether the findings of the court on that question are supported by the evidence. The law as to estoppel being so well settled and so frequently announced, we are content to refer the court to Herman on Estoppel, Sec. 939 and 940; Pomeroy Eq. Jr. Secs. 103, 1297 and 1409; Wood Stats. of Frauds, p. 826-7; Pingrey Real Property, Secs. 823, 1346; Boggs v. Merced Min. Co., 14 Cal. 279; 7 Am. & Eng. Ency. Law, p. 18; 7. Am. & Eng. Ency. of Law, p. 23.

ZANE, C. J. MINER, J., concurred.

OPINION

ZANE, C. J.

It appears from the record that the Eureka Townsite in Juab County, Utah, was entered by the Probate Court of that County on January 23, 1891, in pursuance of an Act of Congress providing for such entries (14 U.S. Stat. at Large, p. 541); that C. W. Clark, on August 16, 1897, filed an application for a deed to lot 17, block 1, plat "C" of Eureka Townsite, and that Kirby & Wilson, on September 7, 1897, filed their adverse claim for a deed to the same lot. It also appears that on April 6, 1898, the court below heard the evidence offered by the respective claimants, and ordered a deed to the lot made to B. B. Clark, and the application of Kirby & Wilson dismissed. From that judgment the appellants have appealed to this court, and allege the court below erred in permitting the respondent to amend his written application by inserting "B. B. Clark by C. W. Clark, his attorney in fact," instead of C. W. Clark.

Section 2817 C. L. U. 1888, requires the person claiming to be the rightful occupant, in person, or by his agent or attorney, to sign a statement in writing, containing a description of the land claimed and deliver it to the clerk of the Probate Court. In this case C. W. Clark signed the application without stating he was attorney in fact, and without making any reference to his principal. The application purported to be his own application and not the application of B. B. Clark. The rightful occupant is not required to sign the statement or application in person, his name may be signed by his agent or attorney. The statement must be treated by the court as a complaint, and the material facts may be denied, and the issues tried.

We are disposed to hold that the amendment complained of was made in furtherance of justice. It does not appear that the appellants were mislead to their prejudice by the error, or that they were surprised and not ready to proceed with the trial on the claim as amended, or that they asked for further time to prepare to meet the new matter presented by the amendment. By the amendment the respondent was permitted to test his right to the lot in dispute on its merits, and no injustice appears to have resulted in consequence of it. We are of the opinion the order complained of was not erroneous. The law required the court in this case, upon the hearing, to order the conveyance of the lot in dispute, to the rightful occupant at the time of the entry of the...