Olsen v. Bank of Ephraim

• Court: Utah Supreme Court
• Writing for the Court: LARSON, Justice.
• Citation: Olsen v. Bank of Ephraim, 93 Utah 364, 68 P.2d 195 (Utah 1937)
• Decision Date: 19 May 1937
• Docket Number: 5817
• Parties: OLSEN et al. v. BANK OF EPHRAIM (RASMUSON et al., Interveners)

68 P.2d 195

93 Utah 364

OLSEN et al. v. BANK OF EPHRAIM (RASMUSON et al., Interveners)

No. 5817

Supreme Court of Utah

May 19, 1937

Rehearing Denied November 8, 1937.

Opinion denying rehearing in 93 Utah 379, 73 P.2d 78.

Appeal from District Court, Seventh District, Sanpete County Dilworth Woolley, Judge.

Action by Don E. Olsen and others against the Bank of Ephraim wherein F. H. Rasmuson and C. Willardsen intervened. From a judgment for defendant, plaintiffs appeal.

REVERSED AND REMANDED WITH DIRECTIONS.

Stanley W. Johnson, of Ephraim, for appellants.

Jensen & Jensen, of Ephraim, for respondents.

LARSON Justice. FOLLAND, C. J., and HANSON and MOFFAT, JJ., WOLFE, Justice, concurring.

OPINION

LARSON, Justice.

This is an appeal, upon the judgment roll, from the district court of Sanpete county. The only error assigned is that the conclusions of law and judgment are not supported by and are contrary to the findings of fact. The facts are simple, though the findings are somewhat extended and in detail. Since we are called upon to decide what the judgment should be under the facts as found by the court, it becomes necessary to set out the essentials of the findings of fact at some length. The exceptions to the conclusions of law and the judgment admit, for the purposes of the exceptions, that the facts are fully and correctly found by the trial court. Meier v. Union Trust Co., 93 Ind.App. 457, 176 N.E. 42; Matson v. Matson, 56 Utah 394, 190 P. 943; Walb Construction Co. v. Chipman, 202 Ind. 434, 175 N.E. 132. The essential facts follow:

That three of the plaintiffs are minor children of Anthon Olsen and Emma Olsen, his first wife; that the other plaintiff, Howard L. Olsen, also a son of Anthon and Emma Olsen, was until shortly before the action was commenced also a minor; that said Olsens had five other children who had attained their majority some time prior to the commencement of the action; that the defendant Bank of Ephraim is a banking corporation, and defendant F. H. Rasmuson was its cashier and defendant C. Willardsen was its vice president; that during the year 1919, Anthon Olsen was the owner of certain lands, sheep, and grazing permits for sheep on the Manti National Forest; that in November, 1919, he purchased from one Stevens 200 acres of land and about 200 head of sheep with a permit to graze said sheep in the Manti National Forest, for the sum of $ 5,600, which sum was borrowed from the defendant Bank of Ephraim; that Olsen was otherwise indebted to the bank in the sum of $ 3,900; that the Olsens, to secure payment of both said sums, totaling $ 9,500, mortgaged to the bank the property purchased from Stevens, together with other property; that at the time of the purchase from Stevens, Olsen, "in order to avoid a reduction in the number of sheep which would thereafter be permitted to graze upon the Manti National Forest in case the same were transferred to Anthon Olsen, and for no other purpose, said Anthon Olsen caused said land to be conveyed by warranty deed, and the title to said sheep to be conveyed by bill of sale from Henry I. Stevens, to Emma C. Olsen, who was then the wife of said Anthon Olsen * * *"; that said Emma C. Olsen died intestate in January, 1920, and left surviving her, her husband, Anthon Olsen, and nine children, ranging from eleven days to thirteen years of age, the four youngest of whom are the plaintiffs herein. That in 1920, Anthon Olsen, upon his own petition, was appointed administrator of his deceased wife's estate; that he filed an inventory and appraisement in the probate proceeding showing the property of the estate to consist of the land and sheep purchased from Stevens and $ 420 received from the sale of wool from the sheep in 1920; that notice to creditors was published in the probate proceeding but the bank did not present a claim; that in September, 1920, on petition of Anthon Olsen, the district court entered an order allowing the final account and entered a decree of distribution in the estate of Emma C. Olsen, in which decree the court found that Anthon Olsen by proper warranty deed and bill of sale had transferred all his interest in the land, sheep, and money to his children, and the court by decree distributed all such property to the nine children in undivided portions.

That in 1931, Anthon Olsen on his own petition was appointed guardian of the estates of the plaintiffs, the other children having attained their majority; that in his petition for appointment as guardian, Anthon Olsen set forth that the minors, plaintiffs herein, were each the owner of a oneninth interest in the lands bought from Stevens of the estimated value of $ 333.30, 100 head of sheep valued at $ 400, and a permit privilege of an estimated value of $ 433, and that the minors had owned such property since 1920; that defendants Rasmuson and Willardsen signed, as sureties, the guardianship bond of Olsen in the sum of $ 1,290; that Olsen as guardian filed an inventory and appraisement, showing the minors each to be the owner of a one-ninth interest in the land valued at $ 333.30, and "100 head of sheep covered by permit on Manti National Forest, value $ 833.00"; that in 1932, Olsen as guardian petitioned the court for leave to sell the property of the minors, "which came to them in 1920, by inheritance and gift," for the reason that for a year past the property had netted no income and a sale would best subserve the interest of the minors; that sale was authorized by the court, sale to the bank made pursuant to an agreement between Olsen and the bank before Olsen's appointment as guardian, and return of sale made to the court; that in June, 1932, the court confirmed the sale in an order reciting, inter alia, that the sale was of real estate, sheep, and permit to graze on the Manti National Forest; that the purchase price was kept by the Bank of Ephraim and credited on Olsen's debts; that the children of Anthon and Emma C. Olsen, who had attained their majority before the guardianship proceedings were commenced, by warranty deed and bill of sale had conveyed their interests to the Bank of Ephraim.

That from the time of purchase from Stevens in 1919 to 1923, all of the property so purchased had been under mortgage to the Bank of Ephraim for the purchase price; that in 1923, Olsen borrowed money from the North Sanpete Bank and paid the Bank of Ephraim in full and the latter's mortgages were released and discharged; that Olsen mortgaged the property, except a one-third interest in the real estate, to the North Sanpete Bank to secure his loan there covering other indebtedness besides what was owing on this property, which mortgage was renewed from time to time until 1931 by Olsen, always without leave of court and as his own property, and the original indebtedness of $ 9,500, of which $ 5,600 was purchase price, had been reduced between 1919 and 1931 to $ 6,000; that in 1930, Olsen mortgaged the sheep but not the land bought from Stevens, to the Bank of Ephraim, and paid off his debts at the North Sanpete Bank; that from 1919 to 1931, Olsen kept the management, possession, and control of the sheep and land; that he branded the sheep and their increase with his own mark and carried the permit in the name of "Emma C. Olsen estate"; that he received the use and benefit of the land and sheep and used them as his own; that he represented to Rasmuson that the property was his but the title in the name of his children; that Olsen had sold the sheep and land involved in this action by an agreement with the defendant bank before his appointment as guardian, and the guardianship proceedings were had for the purpose of effectuating such sale in regard to record title; that neither Emma C. Olsen nor the minor children paid any money or property of value for the property in question. We copy finding of fact No. 11 in full:

"The court further finds that from the year 1919 up to the year 1931, all of the said minor children of the said Anthon Olsen and his deceased wife Emma C. Olsen resided with and were supported and maintained and educated by Anthon Olsen; that during said time Anthon Olsen was engaged in the business of raising sheep; that up to the year 1926 Anthon Olsen was able to support his said children not of his own income, but from and after the year 1926 he was not able to support himself and his said children out of his own income, and he used all of the income from the said property, including all of his own income, for the support of himself and his family, and he so reported to the court in the guardianship proceedings above mentioned.

"The court further finds that it cost Anthon Olsen about $ 10.00 per month during said period of time 1926 to 1931 to support, educate, and maintain each of his said minor children."

The court further found that the legal title was in Emma C. Olsen and later in her children, but the equitable title was always in Anthon Olsen.

Upon the foregoing facts the court held that the property belonged to Anthon Olsen, that he could lawfully sell the same, and entered judgment for defendants. It is to reverse this judgment that the case is brought here. The questions presented for determination on this appeal are:

(1) Will an equity court recognize equitable title in this father who purchased property and took title thereto in his wife's name for the sole purpose of deceiving the U. S. Forest Service as to whom the owner of the property was, thus getting around a rule of said Forest Service, the action of which rule would have reduced the number of sheep which could have been grazed on the National Forest under the permit right purchased, had title been taken in his own name?

(2) If the above question is answered in the affirmative, can this equitable...