Morgan v. Simmons

• Decision Date: 01 June 1908
• Docket Number: 1914
• Citation: 34 Utah 146,96 P. 1018
• Court: Utah Supreme Court
• Parties: MORGAN v. SIMMONS

96 P. 1018

34 Utah 146

MORGAN v. SIMMONS

No. 1914

Supreme Court of Utah

June 1, 1908

APPEAL from District Court, Fourth District; J. E. Booth, Judge.

Action by Owen Morgan against William Simmons. From a judgment for plaintiff, defendant appeals.

AFFIRMED.

E. O Leatherwood for appellant.

APPELLANT'S POINTS.

"It is no more necessary for a lessee to sign a lease in order that the same may become a binding obligation, than it is for the grantee of a conveyance in fee to sign the deed." (Baragiano v. Villiani, 117 Ill.App. 372.)

The owner of real estate may transfer his land by lease signed by him alone. (R. S. 1898, sec. 2463; Braman v. Dodge, 60 A. 799; Railroad v. Winslow, 18 App. D. C. 438; Doxcy Estate v. Service, 65 N.E. 757; Board of Land Commissioners v. Carpenter, 66 P. 165; Henderson v. Coal Co., 78 Ill.App. 437; Taylor on Landlord and Tenant, sec. 147; 18 Am. & Eng. Enc. of Law 606; Castro v. Gaffy, 96 Cal. 521; Dodd v. Pasch [Cal.], 91 P. 166.)

"Where the offer of the landlord is neither accepted nor declined in terms, but the tenant proceeds to occupy and use the premises, such action on the part of the tenant will be considered as an acceptance of the terms of the lease previously offered." (24 Cyc. 896; Smith v Ingram, 90 Ala. 529; Stringer v. Cooper, 11 Ill.App. 267; Berry v. Burnett, 23 Tex. Civ. App. 558; Lovett v. United States, 9 Ct. Cl. 479; Hammond v. Winchester, 82 Ala. 470; Baer v. Winnoch, 128 Mich. 676.)

A. B. Morgan and King, Burton & King for respondent.

RESPONDENT'S POINTS.

"Where there is no unqualified acceptance of the offer made by the owner of the land, there is no completed contract, and counter offers and modifications of the original offer upon the part of the other party to the negotiations, unaccepted by the land owner, will not constitute the transaction of a lease." (24 Cyc. 896. Kaeffler v. Davidson, 66 Ill.App. 542; Culton v. Gilchrist, 92 Iowa 718, 61 N.W. 384; Erickson v. Wallace, 45 Kan. 430, 28 P. 898; Gilbert v. Kennedy, 22 Mich. 117.)

"The general rule is that a lease takes effect so as to vest the estate or interest to be conveyed, only from its delivery and not from its date, or the time the signatures were affixed to it; and there can be no delivery without an acceptance, express or implied."

"The simplest and perhaps the most frequent case of fraud is that consisting of telling a deliberate and intentional falsehood as to a material fact. Where a person makes such a misrepresentation, intending that another shall act upon it, and the latter does act upon it to his injury, it is perfectly clear that an action of deceit will lie." (20 Cyc. 14. Gear, etc., Co. v. Scholfield, 71 Conn. 1, 40 A. 1046; Dickinson v. Atkins, 100 Ill.App. 401; Hubbard v. Weare, 79 Iowa 687, 44 N.W. 915; Nash v. Insurance Co. 159 Mass. 437, 34 N.E. 625; Bank v. Byers, 139 Mo. 627, 41 S.W. 325; Kujek v. Goldman, 159 N.Y. 176, 55 Am. St. 670; Benton v. Pratt, 2 Wend. 385, 20 Am. Dec. 623.)

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This is an action to quiet title to certain lands and for a permanent injunction restraining the defendant, appellant in this court, from interfering with plaintiff's (respondent's) rights to and enjoyment thereof. The findings of fact made by the court, which, in substance, conformed to the allegations of the complaint, are substantially as follows: That the respondent is the owner of and entitled to the possession of the land described in the complaint; that on a specific date named, and at divers other times, the appellant unlawfully and without right entered upon the land in question and ousted and ejected the respondent therefrom, and unlawfully and wrongfully committed certain detailed acts of trespass; that the appellant claimed the right to enter upon said lands and to enjoy the use thereof under an alleged lease which the appellant claims was entered into between respondent and appellant; that the lease referred to was obtained by fraud practiced by appellant upon respondent; and that the lease is void and of no effect. As conclusions of law, the court substantially found that the acts and claims of appellant were wrongful and unlawful, that respondent is entitled to a decree declaring said lease void, that the title to the land in question be quieted in respondent, and that a permanent injunction issue restraining appellant from interfering with respondent's rights to and enjoyment of said land. A decree was entered accordingly. Appellant appeals and contends that the court erred in its findings of fact, conclusions of law, and in entering the decree.

The evidence is conflicting. There is evidence which tends to prove: That on or about the 1st day of March, 1905, the appellant went into possession of the premises in question as tenant under a parol agreement or lease the terms of which do not appear; that thereafter, on the 15th day of April, 1905 the respondent went to an attorney and had prepared a written lease from him to appellant for the term of eight years for the premises in question from March 1, 1905; that when this lease was prepared respondent had the terms fixed as he wanted them, but did not then know whether the appellant would agree to all of them or not; that respondent, before signing the lease, asked the attorney whether the lease would become effective if respondent signed it then, and the attorney informed him that it would not become so until it was agreed to by appellant and signed by him; that with this understanding appellant, signed the lease and left it with the attorney, with the understanding that the respondent would have appellant come to the office of the attorney to examine the lease with respect to its terms and sign it, if satisfactory, and in such event the attorney was to hold the lease. The respondent, on the same day, informed the appellant of what respondent had done, and informed appellant, further, that the respondent was about to depart from the state of Utah and go to California, and that he desired that appellant forthwith go to the office of the attorney and sign the lease, if its terms were satisfactory. Appellant did not go to the office of the attorney and did not inspect nor sign the lease, and so informed respondent about the time he departed from the state. Respondent claims,...