Glasmann v. O'Donnell

• Decision Date: 12 July 1890
• Citation: 24 P. 537,6 Utah 446
• Parties: WILLIAM GLASMANN, APPELLANT, v. MARY O'DONNELL, RESPONDENT
• Court: Utah Supreme Court

24 P. 537

6 Utah 446

WILLIAM GLASMANN, APPELLANT, v. MARY O'DONNELL, RESPONDENT

Supreme Court of Utah

July 12, 1890

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The pleadings in the case were as follows: Plaintiff filed an ordinary complaint to quiet title under the statute averring title and ownership in fee, and deraigning the title by a series of deeds from the patentee of the United States. Defendant answered denying the plaintiff's title, and averring title and ownership in fee, and deraigning title from the same patentee of the United States by a series of deeds, and also setting up the statute of limitations and adverse title by possession. The plaintiff answered this cross-complaint denying the defendant's allegations and averring the title set up in the original complaint.

The cause was tried before the court without a jury. The facts were as follows: The tract in question was patented to one Phippin, who afterwards conveyed to Joseph A. Young. On the same day, February 23, 1874, Joseph A. Young made two deeds both of them being warranty deeds (but the evidence did not show which was made first), conveying the tract of land in question. The deed of Young to Grow, the plaintiff's grantor, was first recorded. It contained two descriptions one by metes and bounds, according to the government corner the other being as follows: "said tract being a portion of lot 9 and lots 10, 11 and 12 in block 18, and lot 7 and a portion of lots 8 and 9 in block 19, Brighton Five Acre Farming Plat." At this time there was a Brighton Five Acre Farming Plat on file in the county recorder's office, but it was not located by any reference to the government survey. Grow granted the land to the plaintiff by deed. Defendant deraigned title from the other grantor of Joseph A. Young.

The evidence also tended to show that the two descriptions in the deed of Young to Grow were at the time it was made supposed to be identical. But that later, in 1883, this description was found to be repugnant, by a re-location and re-survey of what was considered to be the Brighton Plat. The land in question was during all the time unimproved, unfenced, waste desert land, used for no purpose by any one.

The findings of the court were that Joseph A. Young, the common grantor, conveyed the land February 23d, 1874, to the defendant's grantor, and this title by a series of mesne conveyances vested in the defendant; that the first description in the deed of Young to Grow was caused by a mistake, and was contrary to the intention of Young and Grow and that Mary O'Donnel and her predecessors in interest had been in possession of the land since Young made his deed, and such possession had been "actual, peaceable and continued" since February 23d, 1874. The remaining facts are found in the opinion.

Rehearing denied.

Mr. H. Dickson and Mr. John M. Zane for the appellant.

The first description in Young's deed to Grow must control. Benedict v. Gaylord, 11 Conn. 332; 29 Am. Dec. 299; Dana v. Middlesex Bank, 10 Met. 250; Worthington v. Hyler, 4 Mass., 195; Turney v. Bean, 5 N. H., 58; Drew v. Drew,. 28 N. H., 489; Nutting v. Herbert, 35 N. H., 120; Jones v. Smith, 73 N.Y. 205; Widbur v. Washburn, 47 Cal. 67; Sawyer v. Kendall, 10 Cush., 246; Heaton v. Hodges, 30 Am. Dec. and note; Raymond v. Caffey, 5 Or., 132; Crescent Co. v. Wasatch Co., 19 P. 198. Parol testimony is not admissable to show a contrary intention. Benedict v. Gaylord, supra; Waterman v. Johnson, 13 Pick., 264; Bond v. Fay, 12 Allen, 88; Nutting v. Herbert, supra; Truett v. Adams, 66 Cal. 218; Howe v. Bass, 2 Mass., 380; 3 Am. Dec., 59; Dale v. Smith, 1 Del. Ch. 1; 12 Am. Dec. 64; 2 Devlin on Deeds, sec. 1042.

Grow was purchaser without notice, and title passed to him; sec. 2613, 2 Comp. Laws, 1888, p. 99.

There can be no adverse possession of land unenclosed, unimproved and used for no useful purpose, as against the legal title. Secs. 3133 and 3135 2 Comp. Laws, 1888, p. 221.

Mr. Edward B. Critchlow and Mr. Le Grande Young for the respondent.

HENDERSON, J. BLACKBURN, J., concurred, ZANE, C. J., having been of counsel, and ANDERSON, J., having heard the motion for new trail did not sit.

OPINION

HENDERSON, J.:

This action was brought by the plaintiff in the third district court to quiet title, under sections 3468 of the Compiled Laws of 1888 (section 620, Practice Act). The land in dispute is lot 6 and part of lot 5 in block 19 of what is known as "Brighton Five Acre Farming Plat." The complaint avers the ownership and possession and right of possession of the plaintiff. It further avers that the property belonged to one Joseph A. Young on the 23d day of February, 1874, and that on that day it was conveyed by said Young to one Henry A. Grow, and afterwards by Grow to plaintiff, and that the defendant claims some interest or estate in said lands adversely to the plaintiff, but that such claim is without right or equity; and prays that the defendant be required to set forth the nature of her claim, and that it be adjudged to be invalid, and that the right and title of the plaintiff be established. The defendant answered, and denied all the allegations of the complaint, and averred that the defendant was the owner and in the possession, and entitled to the possession, of the lands in dispute, and deraigned her title by and through a deed executed by Joseph A. Young to one John D. T. McAllister on February 23, 1874 and by mesne conveyances from said McAllister to herself, all of which are particularly set forth in the answer. Along with the answer the defendant filed a cross-complaint, in which she alleges that she was the owner in possession, and entitled to the possession, of said land, and in the cross-complaint reasserts the various conveyances by which she became the owner; and further avers that the plaintiff claims an interest in said land adverse to her, and prays that said claim be decreed to be null and void, and that her title be quieted. To this cross-complaint the plaintiff answered, and reasserted his title in detail, as set forth in the original complaint. The issues thus joined were brought to trial before the court without a jury. The evidence tended to show that "Brighton Five Acre Farming Plat" was laid out and platted before the lands were patented, and that lots were held and transferred by possessory right. The lands comprising the entire plat were finally patented by the government to Joseph A. Young. That at that time John D. T. McAllister, the defendant's grantor, was the owner of this possessory right to lots 5 and 6, in block 19, and that Henry A. Grow, the plaintiffs grantor, was the like owner of lots 7 and 8. These possessory rights were recognized by the patentee, and on the 23d day of February, 1874, he undertook to convey to each their respective lands. The testimony shows that the deeds were made and delivered at the same time. The deed to McAllister described the lands conveyed as lots 5 and 6 in block 19. The deed to Grow described the lands by metes and bounds, commencing at a corner section, and after so describing it contained this further description: "Said tract being a portion of lot 9 and lots 10, 11 and 12, block 18, and lot 7, and a portion of lots 8 and 9, block 19, Brighton Five Acre Farming Tract." The deed to Grow was first recorded. Afterwards, and some time before the commencement of this suit, it was discovered that there was a misapprehension as to the location of "Brighton Five Acre Farming Plat" with reference to the government survey, and that by the corrected survey the section corner which was the starting point in the description by metes and bounds in the Grow deed is not where it was supposed to be, but, on the contrary, following the calls in that description, it conveyed lots 6 and a part of lot 5, instead of lots 7 and 8. All the testimony relative to possessory rights prior to the patent, and relative to the mistake or error in the Grow deed, was given by the defendant, and was received by the court against the objection of the plaintiff. The testimony was very conflicting as to possession. The court found in favor of the defendant, and against the plaintiff, and found as facts that the plaintiff had never been in possession; that the defendant had all the time been in possession; that the description in the Grow deed by metes and bounds was an error; that it was intended by all the parties to it to convey lots 7 and 8, and was not intended by any of the parties to it to convey any part of lots 5 and 6. Judgment was entered pursuant to the prayer of the cross-complaint. Motion was made for a new trial, which was denied, and the plaintiff appeals from both the...