Huntsman v. Huntsman

• Decision Date: 28 December 1923
• Docket Number: 3837
• Citation: 61 Utah 376,213 P. 179
• Court: Utah Supreme Court
• Parties: HUNTSMAN v. HUNTSMAN et al

213 P. 179

61 Utah 376

HUNTSMAN v. HUNTSMAN et al

No. 3837

Supreme Court of Utah

December 28, 1923

Rehearing denied March 9, 1923.

Appeal from District Court, Fifth District, Millard County; Joseph H. Erickson, Presiding Judge.

Suit by Willis Huntsman against Emma B. Huntsman and others. From a judgment for plaintiff, defendants appealed, and after a rehearing the Supreme Court remanded the cause, with directions (56 Utah 609, 192 P. 368). From a judgment affirming the previous order of judgment, defendants appeal.

JUDGMENT AFFIRMED.

Wm. B Higgins, of Fillmore, for appellants.

T. M Ivory, of Fillmore, for respondent.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This proceeding is supplementary to a decision heretofore rendered by this court in the same cause. The case is reported in 56 Utah 609, 192 P. 368. In response to an application for a rehearing the cause was remanded to the trial court with directions to take such additional evidence as either party had to offer concerning one issue of controlling importance. That issue was specially defined in the opinion and order remanding the case.

As will more fully appear from reading the opinion, it was an action to cancel a mortgage and quiet title to certain real property situated in Millard county. Plaintiff claimed title under a fee-simple deed from his father, Jacob Huntsman from whom defendants also attempted to deraign title. Defendants claimed through divers mesne conveyances as follows: (1) From Jacob Huntsman, by Peter Huntsman, his attorney in fact, to Fanny Allen; (2) from Fanny Allen to Peter Huntsman; (3) from Peter Huntsman to defendant Emma B. Huntsman; (4) from Emma B. Huntsman, by mortgage, to the other defendants.

Fanny Allen was a daughter of Peter Huntsman, the attorney in fact of Jacob Huntsman, and in the opinion referred to this court held that the purported conveyance to Fanny Allen was a mere attempt to give her the property without consideration which, under the authority conferred, was beyond the power of the attorney in fact. Because of this defective link in the chain of title, this court decided the issues in favor of the plaintiff and affirmed the judgment of the court below.

In the application for a rehearing it was made to appear that probably the defendants were misled to their prejudice by some proceeding during the trial of the case, and for that reason failed to offer proof of substantial consideration for the deed to Fanny Allen. Hence the cause was remanded solely for the purpose of receiving further evidence upon that point. After stating the reasons for remanding the cause, the concluding paragraphs of the opinion on rehearing read:

"For the reasons stated, the court is of the opinion that the case should be remanded to the trial court for the sole purpose of permitting the defendant to present such evidence as she may have tending to show that the deed to Fanny Allen was executed for a substantial consideration as contemplated in the power of attorney by authority of which the conveyance was made. Plaintiff, of course, should be permitted, if he choose, to present evidence on the same subject in support of his contention.

"In order that there may be no misunderstanding as to the scope and meaning of this opinion, we hold the following to be the law of the case:

"(1) That the power of attorney from Jacob Huntsman to Peter Huntsman did not authorize a gift of the property to Fanny Allen, or a sale thereof for a mere nominal consideration; (2) that the deed made to Fanny Allen, as the record now stands, was made for a nominal consideration only, and was therefore not authorized by the power of attorney; (3) that, the expressed consideration being only nominal, the burden of proof was on the defendant to prove that the deed was in fact made for a substantial consideration, as contemplated in the power of attorney; (4) that defendant failed to discharge the burden thus imposed, and therefore failed to establish her title to the property. If the defendant can prove by a preponderance of the evidence that a consideration was paid for the property within the letter and spirit of the authority given the attorney in fact, the defendant is entitled to have her title quieted. Otherwise, the judgment of the trial court is affirmed."

Thus it appears the issue submitted was clearly defined and the evidence to be taken was expressly limited. The issue was tried to the court without a jury. The findings of the court are brief and to the point. After referring to the former judgment, the appeal therefrom, and the specific issue submitted by this court for further evidence, the court finds:

"(1) The court, without reiteration, affirms all of the facts found by the trial court in the previous trial of this cause.

"(2) That the deed made by Peter Huntsman as attorney in fact for Jacob Huntsman, dated November 15, 1897, purporting to convey all of lots 3 and 4 in block 68, Plat A, Fillmore City survey, to Fanny Allen, was without any consideration whatsoever, and was an attempted gift."

Judgment was entered for plaintiff, from which defendants appeal.

Numerous errors are assigned. As we view the case, it is not necessary to consider the errors in detail. In the admission of evidence the widest latitude was extended by the the court. The real issue submitted by this court for determination was apparently lost sight of by appellants, and the court admitted pro forma, over respondent's objection, evidence that ought to have been rejected at once. Little or no attempt whatever was made to prove substantial consideration for the deed to Fanny Allen, the very question submitted by this court for determination. That feature of the case, which was held by this court to be the controlling question, was practically ignored, and appellants were permitted, pro forma, to attempt to establish their defense to the action and title to the property upon an entirely new and different theory. For instance, at the former trial defendants relied on the Fanny Allen deed executed by Jacob Huntsman, through ...