Madsen's Estate, In re, 7589

• Decision Date: 26 June 1953
• Docket Number: No. 7589,7589
• Citation: 123 Utah 327,259 P.2d 595
• Court: Utah Supreme Court
• Parties: In re MADSEN'S ESTATE. MADSONIA REALTY CO. v. ZION'S SAVINGS BANK & TRUST CO. et al.

Page 595

259 P.2d 595

123 Utah 327

In re MADSEN'S ESTATE MADSONIA REALTY CO. v. ZION'S SAVINGS BANK & TRUST CO. et al.

No. 7589.

Supreme Court of Utah.

June 26, 1953.

McKay, Burton, Nielsen & Richards, George M. McMillan, Hadlond P. Thomas and Frank Armstrong, Salt Lake City, for appellants.

G. A. Marr and Paul B. Cannon, Salt Lake City, for respondent.

NELSON, District Judge.

This case was commenced by the Madsonia Realty Company filing a petition in the Probate division of the District Court in the matter of the Estate of Richard W. Madsen, deceased, asking for an order directing the executor in said estate to execute and deliver to Madsonia Realty Company a deed to certain property known as 667 East 1st South Street, Salt Lake City, Utah, and more particularly described as follows:

'Commencing at the Southeast Corner of Lot 1, Block 60 Plat 'B', Salt Lake City Survey, and running thence North 160 feet; thence West 99 feet; thence South 160 feet; thence East 99 feet to the place of beginning.'

It was alleged by the petitioner that on or about January 1, 1937, Richard W. Madsen sold to petitioner, Madsonia Realty Company, the land above described. Petitioner further alleged that no formal deed was ever executed or delivered by the said Richard W. Madsen to the Madsonia Realty Company, but there was an agreed price of $10,680, which was paid by the said Madsonia Realty Company to Richard W. Madsen; that at the time of the said sale Richard W. Madsen was president and general manager of the said Madsonia Realty Company and also kept the account books of said company; that as of January 1, 1937, the said Richard W. Madsen, as general manager of said company and as the bookkeeper thereof made a record of sale by entering the same on the journal and ledger account of said company; that no actual cash or money was delivered to said Richard W. Madsen, but his account was credited in the amount of said purchase price and the property was thereby paid for in full.

Subsequently the defendant, LaReta C. Madsen filed a demurrer and answer to said petition and an answer was filed by the executor. The District Court directed a transfer of the matter to the Civil Division of the court, and the matter was tried as a civil suit.

LaReta C. Madsen maintained that the purported sale or conveyance of any property or interest in any property by Richard W. Madsen to the Madsonia Realty Company as described in the petition of the said company was void by reason of the provisions of Section 33-5-1 Utah Code Annotated 1943, and the provisions of Sec. 33-5-3 and Sections 104-2-6 and 104-2-23 Utah Code Annotated 1943; the said LaReta C. Madsen further alleged that on the 30th day of October 1935, she and Richard W. Madsen were married and ever since said date, to and including the date of the death of the said Richard W. Madsen on May 17, 1948, were husband and wife; that at the time of the marriage of the said parties Richard W. Madsen was the sole owner of the premises at 667 East 1st South Street, Salt Lake City, and more particularly hereinbefore described. She further alleged and maintained that she received no consideration for any sale or contract to sell, and at no time released or conveyed to the Madsonia Realty Company any interest in the said premises.

LaReta C. Madsen further set out that on June 6, 1946, she and her husband Richard W. Madsen entered into a uniform real estate contract of sale wherein they agreed as vendors to sell and convey the aforesaid real property to James O. Peterson and C. Amelia Peterson for a consideration of $16,500; that at the time of the execution of said contract to James O. Peterson and C. Amelia Peterson, the said LaReta C. Madsen believed and was led to believe by Richard W. Madsen and Madsonia Realty Company that said property was the property of Richard W. Madsen only; that at no time has the said LaReta C. Madsen relinquished her dower in and to said real property to Richard W. Madsen, to the heirs or devisees or creditors of Richard W. Madsen or to Madsonia Realty Company, and that she is entitled to her statutory interest in and to said property as the surviving widow of Richard W. Madsen, deceased.

That the said Madsonia Realty Company has no title, right or interest in or to any of the property as hereinbefore set out and described, and that she as one of the parties to the contract of sale of said property to the Petersons as aforesaid, is entitled to have assigned to her by the Court not more than one-half nor less than one-third of all sums paid under the contract.

The executor herein defended the action on the theory that there was no writing to satisfy the Statute of Frauds (Utah Code Annotated 33-5-1, 1943), and no writing subscribed as required by 33-5-3 of the Utah Code Annotated, 1943 and that the action was barred by applicable Statute of Limitations citing Utah Code Annotated 104-2-5, 22(2), 23 and 30.

Upon the trial the District Court established the following facts:

That Madsonia Realty Company is and since 1923 had been a corporation of the State of Utah. That Richard W. Madsen died on the 17th day of May, 1948, and thereafter on June 2, 1948, Letters Testamentary were issued to Zion's Savings Bank and Trust Company as executor of the last will and testament of Richard W. Madsen, deceased. That LaReta C. Madsen and Richard W. Madsen were married October 30, 1935, and said parties continued as husband and wife to the date of death of Richard W. Madsen. That at and prior to the time of the said marriage Richard W. Madsen was the sole owner of the premises located at 667 East 1st South Street, Salt Lake City, Salt Lake County, Utah.

That on or about January 1, 1937, Richard W. Madsen by oral agreement sold to Madsonia Realty Company the property above described for $10,680. Richard W. Madsen evidenced said sale by entering the same on the books of Madsonia Realty Company in his own handwriting, he being president, general manager and bookkeeper of said company. Richard W. Madsen received the full consideration but failed to deliver a deed to said property. That from January 3, 1937, to June 6, 1946, Madsonia Realty Company collected all the rents from said property, paid all the taxes on the same, and paid all upkeep and repair of said property. The said property was occupied by tenants of said Madsonia Realty Company from January 1, 1937, to June 6, 1946.

That on the 6th day of June, 1946, said property was sold to James O. Peterson and C. Amelia Peterson, his wife, for the price of $16,500. That the contract was evidenced by an instrument in writing signed by James O. Peterson and his wife as buyers and by Richard W. Madsen and LaReta C. Madsen, his wife, as sellers. That Richard W. Madsen was in fact acting for and on behalf of Madsonia Realty Company in the signing of the said contract. That Richard W. Madsen entered the sale of the property on the books of the Madsonia Realty Company and credited the buyers on the books of the said company with all payments made on the contract. That the contract provided for down payment of $4,000 and monthly payments of $125. That Richard W. Madsen caused the profit made by the Madsonia Company on the transaction to be entered upon the books of account of said company, and made showing of the profit on income tax returns of the Madsonia Realty Company.

Court further found that LaReta C. Madsen signed the said contract of June 6, 1946, voluntarily as the wife of Richard W. Madsen, and without any misrepresentations made to her by Richard W. Madsen or any other person as an inducement to sign said contract. That LaReta C. Madsen signed said contract for the purpose of and did release her statutory dower right in said property pursuant to Section 101-4-3 Utah Code Annotated, 1943. That at no time did Richard W. Madsen or any other person promise LaReta C. Madsen all or any portion of the purchase price for said property. That during a period from April 8, 1936, to March 29, 1937, Richard W. Madsen transferred to LaReta C. Madsen from his account in the Madsonia Realty Company to her account in said company $3,567.50 and during the time of their marriage Richard W. Madsen, transferred to LaReta C. Madsen, his wife, in addition to living expenses, money, and property of a value of not less than $49,000. That Richard W. Madsen left a last will and testament which has been admitted to probate in this Court, and LaReta C. Madsen has elected to take under said will and does not renounce the provisions thereof in her favor. That neither at the time of the execution of the Peterson contract on or about June 6, 1946, nor at any time prior thereto did LaReta C. Madsen know that Madsonia Realty Company had or claimed any right, title or interest in or to the aforesaid property.

The Court ordered, adjudged and decreed:

(1) That Zion's Savings Bank and Trust Company as executor of the last will and testament of Richard W. Madsen, deceased, execute and deliver to Madsonia Realty Company, a corporation, a deed transferring all its right, title and interest as the executor of the last will and testament of Richard W. Madsen, deceased, including all the right, title and interest which Richard W. Madsen had or owned at the time of his death in and to the property hereinbefore described. That said transfer shall include an assignment of the interest of said Zion's Savings Bank and Trust Company as said executor in and to that certain contract dated June 6, 1946, wherein Richard W. Madsen and LaReta C. Madsen, his wife, appear as sellers, and James O. Peterson, and C. Amelia Peterson, his wife, appear as buyers, together with all moneys owing upon said contract.

(2) That LaReta C. Madsen has released her statutory dower right and has no present interest in or to the property hereinbefore described.

(3) That LaReta C. Madsen has no right to or claim upon any of the moneys which have been paid or which shall hereafter be...