McNeil v. McNeil

• Decision Date: 20 December 1922
• Docket Number: 3850
• Court: Utah Supreme Court
• Parties: McNEIL v. McNEIL et al

211 P. 988

61 Utah 141

McNEIL v. McNEIL et al

No. 3850

Supreme Court of Utah

December 20, 1922

Appeal from District Court, Second District, Davis County; J. N Kimball, Judge.

Action by George McNeil against William R. McNeil and another. From judgment and decree for plaintiff, the named defendant appeals.

AFFIRMED.

H. A Smith & Son, of Salt Lake City, for appellant.

A. A Duncan, of Salt Lake City, for respondent.

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

OPINION

CORFMAN, C. J.

Plaintiff brought this action in the district court seeking to compel specific performance of a written contract entered into between himself and the defendant William R. McNeil for the conveyance of certain real property situate in what is known as North Canyon in Davis county, Utah.

The admitted facts upon which the judgment and decree of the district court were predicated are substantially as follows:

On August 1, 1902, the defendant William R. McNeil entered into a contract with the state of Utah, acting through the State Board of Land Commissioners, for the purchase of the lands at a stipulated price to be paid in 10 annual installments with interest; said contract being designated as a certificate of sale, under the terms and conditions of which said defendant was to have possession of the lands so long as he complied with its terms and conditions. The defendant Elizabeth McNeil did not become a party to said contract or certificate of sale by executing the same nor by taking any part in said transaction, although she and the said defendant William R. McNeil were then, and ever since have continued to be, husband and wife and actual and bona fide residents of the state of Utah.

On December 27, 1905, and after the defendant William R. McNeil had paid the first two of the installments under the terms of said certificate of sale, and while the same was in full force and effect, the plaintiff and the defendant William R. McNeil, without the defendant Elizabeth McNeil, entered into a written contract whereby the plaintiff promised to pay the balance of the principal sum and interest owing to the state of Utah on the purchase price of the land under said certificate of sale, at the times and in the manner therein specified, in consideration of which the defendant William R. McNeil agreed to convey an undivided one-half of said land to the plaintiff.

Thereafter the plaintiff paid the annual installments, 8 in number, with interest as provided for by the terms of said certificate of sale, with the exception of the last only, which, by reason of a subsequent mutual arrangement or agreement between the parties, was paid by defendant William R. McNeil on account of certain other considerations not material here moving from the plaintiff to said defendant. Thereafter, full payment having been made to the state of Utah for said lands in the manner aforesaid, on January 30, 1913, the state of Utah by its deed or letters patent conveyed the lands in fee simple to the defendant William R. McNeil, who has ever since been and now is the holder of the legal and record title to the said lands.

On or about July 29, 1920, the plaintiff demanded that the said defendant William R. McNeil convey to him an undivided one-half of said lands in compliance with his said agreement with the plaintiff so to do, but the defendant then refused, and ever since has refused, to comply with the demand.

It is also made to appear that the defendant Elizabeth McNeil, who was not a party to any of the aforesaid agreements, now, as the wife of the defendant William R. McNeil while living and maintaining with him a residence in this state, claims that she has, under our statutes, an inchoate right or interest in said lands. It also appears that the plaintiff entered into said contracts with full knowledge of the marriage relationship and residence of the defendants.

Upon findings made in accordance with the foregoing facts, the trial court concluded that the plaintiff's action, as to the defendant Elizabeth McNeil, should be dismissed, but that the defendant William R. McNeil should be required to convey an undivided one-half part or interest in and to said lands to plaintiff. Judgment and decree was entered accordingly, from which the defendant William R. McNeil alone appeals.

Appellant assails the conclusions of law and the judgment and decree of the district court upon the grounds that they are not supported by the findings and that they are against law.

Appellant contends that upon the execution of the contract or certificate of sale by the state of Utah to himself he became an equitable owner of the lands therein described and that under the provisions of section 6406, Comp. Laws Utah 1917, an inchoate interest equal to one-third of the value thereof immediately attached in favor of his wife and codefendant, Elizabeth McNeil. Therefore, by reason of the plaintiff having subsequently entered into a contract with him alone and with knowledge of the facts, a court of equity should not have decreed that he specifically perform his contract with the plaintiff.

Said section 6406, in so far as the same becomes material here, provides:

"One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him. * * *"

While the certificate of sale issued by the state of Utah to the appellant has not been made a part of the record on appeal, we take judicial notice of its provisions by reason of its being issued in accordance with authority and direction of our statutes. Its provisions are to the effect that upon failure to pay the annual installments of the purchase price for the lands, the purchaser forfeits all rights under it and every interest in the lands reverts to the state.

In the case of Young v. Corless, 56 Utah 564, 191 P. 647, where the provisions of the same kind of a certificate were under consideration by this court, it was held that the owner thereof was possessed with an equitable estate of inheritance in the land "one that could be mortgaged, one that would descend to his heirs, and such as could be alienated or incumbered as other real estate." Counsel have cited us to the following cases which hold to the same effect: Robertson v. Howard, 82 Kan. 588, 109 P. 696; Hutchinson v Olberding, 136 Iowa 346, 112 N.W. 647. Nevertheless, under statutes like or similar to ours we think it must be held that before a wife will be entitled to a dower interest in the equitable estate of her husband under a purely executory contract, such as we now have under consideration, three things must concur: First, the equitable estate in the lands must be of such a character that a court of equity would have compelled a conveyance of the legal title to the husband during his lifetime; secondly, and as a corollary to the first, performance of the conditions of the contract before alienation of the husband's rights under it; thirdly, the wife's survival of the husband. It is apparent that the mere holding of such a contract in and of itself does not invest the holder with any interest, legal or equitable, in the lands for which a conveyance can be had until its conditions are fully complied with. Under the express terms of the contract, upon the failure of the holder to make payment of any one of the installments, the lands revert to the state and the right to conveyance forever ceases. The inchoate right of a wife to dower under section 6406, in the very nature of things, upon nonpayment of installments must likewise cease, because no right to or interest in the lands remains to which it...