Gibson v. McGurrin

• Decision Date: 10 January 1910
• Docket Number: 2060
• Citation: 37 Utah 158,106 P. 669
• Court: Utah Supreme Court
• Parties: GIBSON v. McGURRIN et al

106 P. 669

37 Utah 158

GIBSON v. McGURRIN et al

No. 2060

Supreme Court of Utah

January 10, 1910

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Judge George J. Gibson against Frank E. McGurrin and others.

Judgment for plaintiff. Frank E. McGurrin and others appeal.

AFFIRMED.

Geo. W Bartch and O. A. Murdock, for appellants.

APPELLANTS' POINTS.

The general rule is, both in equity and under statute which do not expressly grant the action, for the purpose here sought to one out of possession, "that a bill either to quiet title or to remove a cloud can be maintained only where the plaintiff is in actual possession." (17 Enc. Pl. and Pr 306. 17 Enc. Pl. and Pr. 307-309; Mining Co. v. Mining Co., 5 Utah 3, 39-43, 56-59, 64; 6 Am. Eng. Enc. of Law 159; 1 Story, Eq. Jur., Secs. 76, 616, 619; Ashurst v. McKenzie, 92 Ala. 484; 4 Pomeroy's Eq. Jur., Sec. 1396; Richie v. Dorland, 6 Cal. 33; Kunkle v. Lumber Co., 29 Utah 21; Perigo v. Dodge, 9 Utah 3; Park v. Wilkinson, 21 Utah 279, 285. Pratt v. Pond et al., 5 Allen 59.)

Where, as in this case, the plaintiff is not in possession of the land, but asserts title in himself and questions the validity of the defendants' title, who are in possession, the defendants have the right to have the question of title tried by a jury, and a court of equity has no jurisdiction to try the case. (1 Story Eq. Jur., sec. 76; Tarpey v. Salt Co., 5 Utah, 213; Spithill v. Jones, 3 Wash. 290; Plant v. Barclay, 56 Ala. 561; Daniel v. Steward, 55 Ala. 278; McLean v. Presley, 56 Ala. 211; Herr v. Martin, 90 Ky. 377; Branch v. Mitchell, 24 Ark. 439; Alton & M. F. Ins. Co. v. Buckmaster, 13 Ill. 205; Smith v. McConnell, 17 Ill. 135. Holtz v. Bergmann, 6 Pa. Dist. Rep. 217; Long's App., 92 Pa. St. 171; 6 Am. and Eng. Ency. of Law 159; Curtis v. Sutton, 15 Cal. 260.) This was a suit to remove a cloud or to quiet title to real property, and hence a suit in equity, and when the plaintiff brought the suit he was admittedly out of possession, and had an adequate and complete remedy at law which he ought to have pursued. (1 Story Eq. Jur., sec. 616, 619, 711-a; 17 Enc. Pl. and Pr., 290-291, 293; Mining Company v. Mining Company, 5 Utah 3, 39-43, 57-59; Mont. Ore. P. Co. v. Boston & M. Con. C. & S. Co., 70 P. 1114, 1119-1122; 27 Mont. 288; Newman v. Duane, 89 Cal. 527, 27 P. 66; Ezelle v. Parker, 41 Miss. 520; Huntington v. Allen, 44 Miss. 654; Curtis v. Sutter, 15 Cal. 260; Harrigan v. Mowry, 84 Cal. 456; Whitehead v. Entwhistle, 27 F. 778; Newman v. Westcott, 29 F. 49; Harland v. Bankers, etc. Tel. Co., 33 F. 199; Taylor v. Clark, 89 F. 7; Central Pacific R. R. Co. v. Dwyer, 1 Sawy. [U. S.] 641.)

J. Walcott Thompson for respondent.

RESPONDENT'S POINTS.

This is not a suit in equity to quiet title to real estate. It is an action to determine an adverse claim under section 3511 C. L. Utah 1907. The statutes of this state provide that: "There is in this state but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs," to be commenced by complaint, containing "a statement of the facts constituting the cause of action, in ordinary and concise language" and "a demand of the relief which the plaintiff claims." (Compiled Laws of Utah, 1907, secs. 2852, 2960.) Under precisely similar statutes of the Territory of Montana and New Mexico it has been decided by the Supreme Court of the United States that both legal and equitable relief may be granted in the same action and may be administered through the intervention of a jury or by the court itself, according to the nature of the remedy sought. (Hornbuckle v. Toombs, 18 Wall. 684, 21 L.Ed. 966; Herschfield v. Griffith, 18 Wall. 657, 21 L.Ed. 968; Davis v. Bilsland, 18 Wall. 659, 21 L.Ed. 969; Basey v. Gallagher, 20 Wall. 670, 22 L.Ed. 452.) Under the present statute the allegation of possession is unnecessary. (Ely v. N. M. & Ariz. R. R. Co., 129 U.S. 291, 32 L.Ed. 688; 2 Estee's Pleading, sec. 2508; Landregan v. Peppin, 94 Cal. 467.) A judgment of nonsuit is improper where plaintiff establishes any legal interest in the property. (Peterson v. Gibbs [Cal.], 81 P. 121.) When the paramount title is shown to be in respondent, the law raised the presumption of the right to possession, and it is unnecessary to prove his right. (Flood v. Templeton [Cal.], 92 P. 78, 13 L. R. A. [N. S.], 579, 586; Cottrell v. Pickering, 32 Utah 62, 67.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The respondent, in substance, alleged in his complaint that at the time of the commencement of the action he was the owner and entitled to the possession of a certain parcel of land in Salt Lake County, describing it; that the defendants, including the appellants, claimed and asserted some estate or interest in and to said premises adverse to the respondent; that such claim was without right, and that said defendants, nor either of them, had any estate, right, title, or interest whatever in said premises. Upon these allegations respondent prayed that the defendants be required to set forth the nature of their said claims; that it be adjudged that the respondent is the owner of said land, and that the defendants, nor either of them, have any estate or interest whatever therein; that they, and each of them, be enjoined from asserting any claim whatever adverse to respondent in said premises, and for general relief. To the foregoing complaint Frank E. McGurrin, Jennie D. McGurrin, Stephen Hays, and Mary Hays, who are, and hereinafter will be, styled appellants, demurred upon substantially the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that the complaint is insufficient because it does not allege that respondent is in possession of the land; (3) that the complaint is insufficient because it is not made to appear therefrom "by what right or title the plaintiff (respondent) claims to be the owner" of said land; (4) that the complaint is insufficient because "it does not show by what right or authority the respondent claims to be entitled to the possession of the land described." The demurrer was overruled, and the defendants designated as appellants filed a general answer, in which they denied that the respondent is the owner and entitled to the possession of the land described in his complaint. They admitted that they claimed and asserted some right and interest to said land and to the whole thereof. Further answering, and by way of counterclaim, the appellants above named claimed to be the owners and in possession of the land described in plaintiff's complaint (the description of the land in the answer is the precise description contained in the complaint); that the respondent claimed and asserted some right or interest in said land adverse to said appellants; that said claim is without right, and that said respondent has no right, title, estate, or interest in said land whatever. They prayed that the title to said land be quieted in them, and for general relief. Respondent filed a reply to the counterclaim, which was, in effect, a general denial. The other defendants are not here complaining, and hence need not be further considered.

When the case came on for trial, the appellants by their counsel "objected to the introduction of any evidence under the complaint in this case, for the reasons set forth in our demurrer." Counsel then stated the grounds of the objection substantially as they are stated in the demurrer which we have already set forth. The objection was overruled, and counsel saved an exception. The respondent, in support of his allegations of ownership, then offered in evidence the record of a patent, in which the land in question, with other land, was, by the United States, conveyed to one Lorenzo Pettit of Salt Lake County. Counsel for appellants objected to the introduction in evidence of this patent, upon the general grounds above set forth and upon no others. The court overruled the objection, and admitted the patent in evidence, and counsel duly excepted. Respondent then offered in evidence the record of a deed from said Pettit and wife to one Samuel M. Green. At this point a controversy arose, and the bill of exceptions shows that the following proceedings were had: Mr. Bagley, one of the counsel for appellants, addressing himself to respondent's counsel, said, "We are perfectly willing you might shorten this record by giving the grantors and grantees and description of the property." Counsel for respondent, addressing himself to Mr. Bagley, asked, "Concede the description is the one in question?" to which Mr. Bagley replied, "Yes." The court then said: "Let the record show each instrument is introduced. A copy may be procured later if necessary to preserve the record." The deed was admitted in evidence over appellants' general objection; then counsel for respondent said, "Then let the record show deed from Samuel M. Green to Franklin Farrel is considered introduced in evidence in full." Counsel for appellants, in referring to respondent's counsel's suggestion, said: "Subject to the general objection we made," and counsel for respondent agreed to this, and then proceeded in the manner indicated by the court, and offered certain deeds in evidence, the last of which was a conveyance to the respondent herein. Starting thus with the patent from the United States, respondent had by mesne conveyances shown record title in himself, and when this had been done, he rested his case. After respondent rested counsel for appellants moved for a nonsuit upon substantially the grounds set forth in the demurrer to which we have referred, and upon the further grounds that the evidence was insufficient to...