Jenkins v. Morgan

• Decision Date: 16 August 1948
• Docket Number: 7108
• Citation: 113 Utah 534,196 P.2d 871
• Court: Utah Supreme Court
• Parties: JENKINS et ux. v. MORGAN et al

196 P.2d 871

113 Utah 534

JENKINS et ux. v. MORGAN et al

No. 7108

Supreme Court of Utah

August 16, 1948

Appeal from District Court, Fourth District, Utah County; Joseph E. Nelson, Judge.

Suit by Hyrum Jenkins and Belle Moyle Jenkins, hi& wife, against John B. Morgan, Morgan Brothers, Willis Morgan, Albert Morgan and others, and George Cheever and others, County Commissioners of Utah County, to quiet title to three parcels of land. From judgment quieting title in plaintiffs, the defendants other than the County Commissioners, appeal.

Affirmed.

J Rulon Morgan, of Provo, for appellants.

W D. Beatie, of Salt Lake City, and Arnold Roylance, of Springville, for respondents and defendants.

Latimer Justice. McDonough, C.J., and Pratt, and Wolfe, JJ., concur. Wade, Justice (concurring in the result).

OPINION

Latimer, Justice.

This is a suit to quiet title to three parcels of land situated in Utah County. Specifically the three parcels are: The southwest quarter of the southwest quarter of section 17; the north half of the northeast quarter of section 19; and the northwest quarter of the northwest quarter of section 20, all in township 10 south, range 1 east, Salt Lake meridian.

Patents to the land were issued to John L. Jenkins in 1894. He held title at the time he died intestate in 1905. The administration of his estate was commenced in 1917, but before the final decree, all of the heirs had conveyed their respective interests in the land to the plaintiff, Hyrum Jenkins. These conveyances were confirmed on March 22, 1920 by decree of the probate court which declared title to be in the plaintiff, Hyrum Jenkins.

The land was first sold to Utah County for taxes assessed for the year 1917. There being no redemption of the 1917 taxes, the county auditor issued an auditor's tax deed to the county in 1922. Subsequent taxes were added to the 1917 sale. Utah County quit-claimed its interest to Peter N. Anderson in 1927 and again in 1932. The land was again sold to Utah County for taxes assessed against Peter N. Anderson for the year 1937. No deed was ever taken by the County under this sale.

On May 23, 1945, Utah County conveyed its interest in the southwest quarter of the southwest quarter of section 17, township 10 south, range 1 east, for the sum of $ 27.14 to John B. Morgan, and on September 5, 1944, conveyed its interest in the northwest quarter of the northwest quarter of section 20, township 10 south, range 1 east, for the sum of $ 50.00 to John B. Morgan. On September 5, 1944, Utah County conveyed its interest in the north half of the northeast quarter of section 19, township 10 south, range 1 east, for the sum of $ 100.00 to Morgan Brothers. On July 8, 1946, Utah County conveyed its interest in the southwest quarter of the southwest quarter of section 17, township 10 south, range 1 east, for the sum of $ 41.45 to Ethel G. Morgan. On March 12, 1946, Peter N. Anderson and Lucy Anderson, his wife, by quitclaim deed conveyed their interests to the plaintiff.

The trial court quieted title in the plaintiffs and ordered plaintiffs to reimburse the defendants for the sums expended in purchasing their tax titles and for taxes paid by defendants to date with interest. The defendants bring this appeal assigning numerous errors said to have been committed by the court below. However, the only questions that need be considered by this court are: (1) Whether the record discloses any title in the plaintiffs. (2) Whether defendants have acquired title by adverse possession. (3) Whether defendants' title is superior to that of the plaintiffs by virtue of their respective tax deeds received from Utah County in 1944, 1945 and 1946.

The defendants first attack plaintiffs' title on the theory the probate court, of the Fourth Judicial District, sitting in Utah County, failed to acquire jurisdiction in probating the estate of John L. Jenkins in 1917. To support this contention they rely on the case of In re Phillips' Estate , 86 Utah 358, 44 P. 2d 699. They contend there was a failure to comply with the statutory requirements governing the publication of notice and that this fact rendered the probate decree a nullity. We are not called upon to decide whether the decree was void or not because the record before us does not indicate a failure to comply with the statutory requirements regarding notice. The only evidence in the record is the affidavit of the officer who posted notice. This shows posting in three public and conspicuous places in Provo City, Utah County, namely, at the north entrance of the County Court House, at the southwest corner of the intersection of Center and First East Street and immediately east of the Provo City Fire Hall on Center Street.

We said in the Phillips case, supra [86 Utah 358, 44 P. 2d 705]:

"Be that as it may, the proof of posting contained in the probate files reveals the postings to have been at the west entrance of the city and county building, on University avenue and on Center street. We cannot take judicial notice that these streets are in Provo or that they are actually within 80 yards of each other. We are confined to the facts set out in the petition to set aside for that information."

This reasoning is applicable here. We cannot take judicial notice of the location of the places recited in the affidavit and without so doing we cannot find improper posting. The burden rests on the defendants to establish noncompliance with the statute and in this they have failed.

Defendants next assert they acquired title to the lands by adverse possession. Defendants contend that for more than 7 years immediately preceding the commencement of this action, they were in the exclusive, notorious and uninterrupted possession of all three parcels ofland and paid all taxes levied and assessed thereon during all of said seven years. The statutory methods of acquiring title by adverse possession, set out in sections 104-2-7 and 104-2-12, U. C. A. 1943, R. S. U. 1933, and Compiled Laws of 1917, sections 6451 to 6456 are exclusive. See Central Pacific Railway Co. v. Tarpey, 51 Utah 107, 168 P. 554, 1 A. L. R. 1319; Home Owners' Loan Corporation v. Dudley, 105 Utah 208, 141 P. 2d 160. The record does not indicate whether defendants claim under a written instrument or not, but the earliest date at which they could claim title under any written instrument is 1944, 1945, and 1946. It was in these years that they received their quit-claim deeds from Utah County. Any rights defendants may have acquired by adverse possession must therefore be determined under section 104-2-11, U. C. A. 1943, which provides for the acquisition of title by adverse possession not under a written instrument. The statute reads as follows:

"For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment or decree land is deemed to have been possessed and occupied in the following cases only: (1) Where it has been protected by a substantial inclosure. (2) Where it has been usually cultivated or improved. (3) Where labor or money has been expended upon dams, canals, embankments, aqueducts or otherwise for the purpose of irrigating such lands amounting to the sum of $ 5 per acre."

One who claims title by adverse possession not founded on a written instrument is required to bring himself within this section of the statutes. We find no evidence in the record that the defendants have complied with the requirements therein set forth. We find only a claim of exclusive, notorious, and uninterrupted possession of the land by the defendants together with their claim of having paid all taxes. The only evidence of any possession of the land consists of the use by the defendants of the land for grazing of their cattle. However, this use was not exclusive. One Okelberry also used the lands in dispute for the grazing of his cattle during the years in question. Defendants admit knowledge of Okelberry's use of the land without intervention or complaint on their part. It would thus appear that defendants have failed to establish occupation or possession within the limits of the statutory requirements.

The record fails to sustain defendants' contention that they have paid taxes on the lands here in dispute for the statutory period. If any taxes were paid by defendants for the years prior to 1944, 1945 and 1946, they were part of and included in the consideration given for the tax deeds from Utah County. In Aggelos v. Zella Mining...