Karren v. Rainey

• Decision Date: 26 October 1905
• Docket Number: 1645
• Citation: 30 Utah 7,83 P. 333
• Court: Utah Supreme Court
• Parties: KARREN v. RAINEY (KARREN, Intervener)

83 P. 333

30 Utah 7

KARREN v. RAINEY (KARREN, Intervener)

No. 1645

Supreme Court of Utah

October 26, 1905

APPEAL from District Court, Cache County; J. F. Chidester, Judge.

Action by Hyrum Karren against Telitha Dean Rainey. George Karren intervened. From a judgment for defendant, plaintiff and intervener appeal.

AFFIRMED.

J. Z Stewart, Jr., S. R. Thurman and Hurd & Wedgwood for appellants.

APPELLANT'S POINTS.

Mere words of gift do not constitute a gift. (14 A. & E. Enc. of Law, p. 1041; Thompson v. Ray, 92 Ga. 285; Anderson v. Scott, 94 Mo. 637.)

A court of equity will not enforce a parol gift of land on account of improvements of an insignificant or temporary character or trivial expenditures made to suit the donee's taste or convenience. (Burris v. Landers, 114 Cal. 310; Porter v. Allen, 54 Ga. 623; Ogsbury v Ogsbury, 115 N.Y. 290; Wack v. Sorber, 30 Am. Dec. 269.)

The rule is that to establish these points the most satisfactory evidence is required as to each. The proof must be clear definite, and conclusive, not only as to the fact of the gift, but also as to acts done by the donee upon the faith of the gift, such as would render inequitable any attempt on the part of the donor to avoid it. (Ogsbury v. Ogsbury, 115 N.Y. 290; Poorman v. Kilgore [Pa.], 67 Am. Dec. 425; Schoonmaker v. Plummer, 139 Ill. 612; Burris v. Landers [Cal.], 46 P. 162, Ponlain v. Ponlain, 76 Ga. 420.)

P. E. Keeler and F. K. Nebeker for respondents.

RESPONDENT'S POINTS.

The fact that the donee did not move upon the land for three years after the gift, and that pending such actual taking possession, the donor deeded the land to a third person, will not defeat the donation, where the donee afterward took possession and made extensive improvements. (Whiting v. Barrett, 7 Laws 106; Samuelson v. Bridges, 25 S.W. 636; Carradine v. Carradine, 38 Am. Rep. 324.)

Improvements equal to only one-half of the rental value of the property have been held sufficient to entitle the donee to a specific performance. (Hubbard v. Hubbard, 41 S.W. 749; Poullain v. Poullain, 4 S.E. 92.)

A severance having taken place, each takes his or her proportionate share of the property as a tenant in common, without survivorship. (Steltz v. Shreck [N.Y.], 28 N.E. 511; Donegan v. Donegan (Ala.), 15 So. 823; Harrer v. Wallner, 80 Ill. 197; Lash v. Lash, 58 Ind. 526; Ames v. Norman, 4 Sneed 683.)

Only a part of the purchase price was paid by Leavett and Karren. One who has not paid the full price is not a bona fide purchaser. (Wood v. Rayburn, 22 P. 521; Dugon v. Vattier, 25 Am. Dec. 105; Canal Co. v. Young, 30 Am. Dec. 212; Bright v. Banks, 17 Am. Dec. 136; Donaldson v. Bank, 18 Am. Dec. 577; Nartz v. McPherson, 18 Am. Dec. 216.)

A bona fide purchaser must plead and prove independently of the recitals of his deed that the purchase money was bona fide and actually paid. (Richards v. Snyder, 6 P. 186; Boon v. Chiles, 10 Peters 177.)

There was a prayer for general relief by respondent and under the circumstances where specific performance cannot be fully decreed, there may be an award of damages under such prayer. (Watts v. Waddle, 31 U.S. [6 Pet.] 389; Cunningham v. Depew, 1 Morris 463; Love v. Nielson, 54 N.C. 339; Wilkie v. Womble, 90 N.C. 254; Allum v. Stockbridge, 67 Tenn. 356.)

The term "good and sufficient deed" relates only to the validity of the deed to pass the title which the vendor has, and does not imply that the title is valid or free from incumbrances. (Tinney v. Ashley, 32 Mass. 546 -- 26 Am. Dec. 620; Barrow v. Bispham, 11 N. J. Law 110; Brown v. Covillaud, 566; Louisville & N. R. Co. v. Shepard, 28 So. 202.)

McCARTY, J., delivered the opinion of the court. BARTCH, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

Plaintiff brought this action to quiet title to forty acres of land; the same being described in his complaint as follows: The southwest quarter of the southeast quarter of section 6, township 14 north, range 1 east of the Salt Lake meridian, Cache county, Utah. Defendant denied plaintiff's title, and by her amended counterclaim alleged that on October 9, 1893, Fred Karren, a son of plaintiff, and defendant intermarried, and that on October 11, 1893, plaintiff and his wife, Martha Karren, made a marriage gift to defendant of a piece of ground, forty rods wide by one hundred and sixty rods long, containing forty acres, the same being the west half of the forty acres described in plaintiff's complaint and the west half of the northeast quarter of the southeast quarter of said section 6, the said plaintiff and Martha Karren then and there being the owners of said land; that under such marriage gift she and said Fred Karren entered into possession of said land and made improvements thereon, consisting of a dwelling house, granary, fences, and the planting of trees of the aggregate value of $ 1,000, and thereafter resided upon and occupied the same under claim of right; and that she was and is the owner and entitled to the possession of an undivided one-half interest in and to said land. Defendant concludes with a prayer for judgment that she "be decreed to be the owner of the said land, and that plaintiff be required to execute and deliver to her a good and sufficient conveyance for the conveying of an undivided one-half interest in said premises, and for general relief." By way of reply to this counterclaim, plaintiff admitted that on the 11th day of October, 1893, he was the owner in fee and entitled to the possession of the land described in said counterclaim. By way of further defence, he alleged that prior to February 23, 1903, he was the owner in fee of the north half of the land described in defendant's counterclaim, and that on said date he conveyed to Edward Leavit, his son-in-law, who, in turn, conveyed the land to George Karren (plaintiff's son); that by the terms of said conveyances plaintiff retains a vendor's lien upon said land, subject to a mortgage of $ 660 executed by said George Karren and wife to the Utah Mortgage Loan Corporation, and that, aside from said vendor's lien, plaintiff has no interest in said twenty acres of land; and that the twenty acres so sold by plaintiff are the twenty acres claimed by defendant in her counterclaim not embraced within the land described in plaintiff's complaint. For a further defence to the counterclaim, plaintiff denied the alleged gift, and alleged that all improvements upon the land described in said counterclaim were placed thereon at his cost, and that defendant had no occupation or possession of said land, except as the wife of said Fred Karren, and that on the 17th day of September, 1900, a divorce was duly granted said Fred Karren, against defendant, and that by reason of said decree defendant is estopped from asserting or claiming any ownership in the property described in her counterclaim. George Karren, plaintiff's grantee, filed a petition in intervention and claimed to be the owner of the north twenty acres of the land described in the counterclaim as a purchaser in good faith for value, subject only to the mortgage of $ 660 in favor of said loan corporation and a vendor's lien in favor of plaintiff for $ 600. Defendant, by her answer to said petition, alleged the marriage gift, the making of the improvements and the occupation of the premises set forth in her counterclaim, and that intervener had knowledge of all of said facts. In the year 1900 trouble arose between defendant and her husband, and in September of the same year a decree of divorce was entered in favor of the latter. Neither alimony was allowed nor property awarded to defendant in the divorce proceedings, and no order was made therein respecting the property in controversy. On February 23, 1903, Hyrum Karren and wife conveyed by deed to Edward Leavit, who was their son-in-law, the north half of the forty acres of land in question, and on said date said Leavit and his wife conveyed by deed the land to George Karren, who mortgaged the same to the Utah Mortgage Loan Corporation for $ 660, of which $ 600 was paid to plaintiff, Hyrum Karren. Leavit and George Karren at the time of said transfer had actual notice of defendant's claim to an undivided half interest in the property. The court decreed that neither the plaintiff nor the petitioner in intervention had any interest in the premises described in defendant's counterclaim, and that defendant was the true and lawful owner of an undivided one-half interest as tenant in common with said Fred Karren in said premises, and ordered and adjudged that plaintiff forthwith execute and deliver to the defendant a deed conveying to her an undivided one-half interest therein as tenant in common, and that she have and recover from plaintiff and intervener the sum of $ 600, together with her costs.

McCARTY, J., after making the foregoing statement of the case, delivered the opinion of the court.

There is a sharp and irreconcilable conflict in the evidence on all material points, and questions of fact raised by the issues. Respondent testified: That at a wedding reception given her and her husband, Fred Karren, on October 11, 1893, Hyrum Karren, plaintiff herein, came and spoke to her as follows "Well, Litha, I didn't bring a wedding present to-night. My wedding present to you and Fred is forty acres of land in Lewiston. I gave the other two boys forty acres of land, and that will be my wedding present to you and him." That about two weeks later, and after she and her husband had moved to Lewiston, plaintiff explained to her how the land lay and where it was with reference to the location of the land he had given the other boys. Quoting her own testimony on this point she says: "He told me George's forty was next to him, and then Vess's, and...