Johnson v. Bell

• Decision Date: 26 May 1983
• Docket Number: 17455,Nos. 17582,s. 17582
• Citation: 666 P.2d 308
• Court: Utah Supreme Court
• Parties: Verl B. JOHNSON and Mary G. Johnson, his wife, Plaintiffs and Appellants, v. Milton S. BELL and Dorene Bell, his wife; Murray First Thrift & Loan Company, a corporation, Kay M. Lewis, Trustee; and Wesley M. Anderson, Defendants and Respondents. (Two cases)

Page 308

666 P.2d 308

Verl B. JOHNSON and Mary G. Johnson, his wife, Plaintiffs and Appellants, v. Milton S. BELL and Dorene Bell, his wife; Murray First Thrift & Loan Company, a corporation, Kay M Lewis, Trustee; and Wesley M. Anderson Defendants and Respondents. (Two cases)

Nos. 17582, 17455.

Supreme Court of Utah.

May 26, 1983.

E.J. Skeen, Salt Lake City, for plaintiffs and appellants.

M. David Eckersley, James R. Black, Kay M. Lewis, Steven F. Alder, Salt Lake City, for defendants and respondents.

HOWE, Justice:

Plaintiffs Verl B. Johnson and Mary G. Johnson, his wife, brought this action against all defendants to quiet title to certain real property, or in the alternative, to recover damages against the defendants Milton S. Bell and Dorene Bell, his wife. After plaintiffs' presentation of evidence, their complaint was dismissed and they bring this appeal.

On October 8, 1966, the defendant Milton S. Bell, then a single man, entered into an installment contract to sell approximately 1,000 acres of land in Grantsville, Tooele County, Utah, to plaintiffs' predecessors in interest, Blaine Johnson and Frances N. Johnson, his wife; C. Glen Durfee and Dean R. Johnson. On that same day Bell executed and delivered to those buyers a quitclaim deed to an adjoining 80 acres. This quitclaim deed was not recorded until September 27, 1974.

On September 8, 1967, Verl B. Johnson, one of the plaintiffs and the father of Blaine Johnson and Dean R. Johnson, redeemed the 80 acres from a tax sale and was issued a certificate of redemption by the Tooele County Treasurer. The certificate was marked "For Milton Bell." On September 25, 1968, the 1,000 acres covered by the contract, and not the 80 acres, was conveyed by warranty deed by Bell to the plaintiffs after they paid the principal balance owing on the contract. Subsequently, the original buyers under the real estate contract quitclaimed their interest in the 1,000 acre tract to plaintiffs.

On September 9, 1974, in order to secure a loan of $10,847 which they had obtained, Bell and his wife, Dorene, executed a trust deed on the 80 acres to Murray First Thrift & Loan. Murray First thereafter recorded the trust deed in the office of the Tooele County Recorder on September 11, 1974. This was approximately two weeks before the grantees of the 80 acres recorded their quitclaim deed which had been delivered to them by Bell on October 6, 1966. On July 12, 1975, Frances Powell, formerly Frances N. Johnson and ex-wife of Blaine Johnson, quitclaimed her interest in the 80 acres to Milton Bell. On May 16, 1976 all of the other grantees of the 80 acres quitclaimed their interest therein to the plaintiffs.

The plaintiffs filed suit on May 17, 1976 to quiet title to the 80 acres as against the Bells, Murray First, Kay M. Lewis, trustee under the deed of trust, and Wesley M. Anderson. Anderson had purchased the 80 acres from Murray First at a trustee's sale for the amount owing on Bells' note after they defaulted thereon. At the trial, after all plaintiffs' evidence was submitted, the trial court granted defendants' motion for dismissal of the case for failure of plaintiffs to establish a prima facie case.

Plaintiffs contend that the trial court erred in dismissing their action because they had made out a prima facie case that (1) Murray First had actual notice of their interest in the 80 acres at the time it recorded its trust deed even though they had not then recorded their quitclaim deed, and (2) they had possessed the land and paid taxes thereon for 7 consecutive years, thereby establishing title by adverse possession.

I.

The assertion that Murray First had actual notice of plaintiffs' predecessors' interest in the 80 acres at the time it recorded its trust deed (even though they had not then recorded their quitclaim deed) involves consideration of U.C.A., 1953, § 57-1-6 which provides:

Every conveyance of real estate, and every instrument of writing setting forth an agreement to convey any real estate or whereby any real estate may be affected, to operate as notice to third persons shall be proved or acknowledged and certified in the manner prescribed by this title and recorded in the office of the recorder of the county in which such real estate is situated, but shall be valid and binding between the parties thereto without such proofs, acknowledgment, certification or record, and as to all other persons who have had actual notice.... [Italics added.]

This statute was under examination by this Court in Toland v. Corey, 6 Utah 392, 24 P. 190 (1890), where we held that the "actual notice" required by § 57-1-6 was satisfied if a party dealing with the land had information of facts which would put a prudent man upon inquiry and which, if pursued, would lead to actual knowledge as to the state of the title. See a similar expression in McGarry v. Thompson, 114 Utah 442, 201 P.2d 288 (1948).

There is no evidence in the instant case that in September of 1974, when the trust deed was executed to Murray First and recorded, Murray First knew of the conveyance from Bell to plaintiffs' predecessors in title. Nor is there any evidence that there was any activity on the property at that time which would have reasonably alerted it to the claims of those predecessors and which would have required its further investigation. There was no evidence that there were any cattle upon the property at that time. Plaintiffs admitted that cattle grazed the land only seasonally and also that no one lived upon the property. The improvements to the property by the plaintiffs had been made in 1966. These facts are significantly different from those found in Toland v. Corey, supra, where the person who claimed that there was actual notice lived in a home on the property, and also differs from those in Neponset Land and Livestock v. Dixon, 10 Utah 334, 37 P. 573 (1894) where again there was a home on the property and crops had been harvested from the property.

Whether Murray First had actual notice was a question of fact which the plaintiffs had the burden of proving. The trial court did not err in ruling that the plaintiffs had failed to establish a prima facie case that Murray First had "actual notice" as required by § 57-1-6, and the cases interpreting that statute which have been cited and discussed above.

II.

Turning now to a consideration of plaintiffs' claim that they acquired title by adverse possession, the trial court at the close of the presentation of plaintiffs' evidence granted motions made by all defendants to dismiss plaintiffs' complaint. Following the trial, written orders of dismissal were submitted to and signed by the trial court. One order relates to the defendants Murray First and Kay Lewis; another to defendants Bell, and the third order relates to defendant Anderson. It is significant that all three orders of dismissal recite that they are made on motion of defendants to dismiss plaintiffs' complaint because of their "failure to establish a prima facie case." Following entry of those orders, plaintiffs' counsel moved to alter, amend or vacate them on the ground that the orders were not supported by findings of fact and conclusions of law as required by Rule 41(b), Utah Rules of Civil Procedure. In response to the filing of those motions, the defendants Murray First and Kay Lewis and the defendants Bell submitted to the trial court and the trial court signed two sets of findings of fact and conclusions of law. In each of these sets it was again recited that the plaintiffs' complaint was dismissed for their "failure to establish a prima facie case against said defendants" or "to establish a prima facie entitlement to relief."

Rule 41(b), supra, provides in part:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a)....

We pointed out in Winegar v. Slim Olson, Inc., 122 Utah 487, 252 P.2d 205 (1953) that this rule applies only in non-jury cases where the court sits as the fact finder. In that case we quoted approvingly from United States v. United States Gypsum Co., D.C., 67 F.Supp. 397, 418 (1946) where the rule was explained and justified in the following words:

When a court sitting without a jury has heard all of plaintiff's evidence, it is appropriate that the court shall then determine whether or not the plaintiff has convincingly shown a right to relief. It is not reasonable to...