Pender v. Bird

• Decision Date: 29 November 1950
• Docket Number: No. 7344,7344
• Citation: 224 P.2d 1057,119 Utah 91
• Parties: PENDER, v. BIRD et al.
• Court: Utah Supreme Court

Page 1057

224 P.2d 1057

119 Utah 91

PENDER, v. BIRD et al.

No. 7344.

Supreme Court of Utah.

Nov. 29, 1950.

Backman & Backman, Salt Lake City, for appellant.

Richards & Bird, Salt Lake City, for respondents.

McDONOUGH, Justice.

Plaintiff sued to quiet title. From a judgment in favor of the respondents, plaintiff appeals. He argues the following propositions as grounds for reversal: (a) That the court should have granted plaintiff judgment on the pleadings by reason of the plea of the statute of limitations. (b) That the court should have allowed plaintiff to amend to plead estoppel because of laches on the part of defendant. (c) That judgment quieting title in respondents lacks support in the evidence.

There was no error in denial of the motion for judgment on the pleadings. Plaintiff's plea of Sec. 104-2-5, U.C.A.1943, could not be sustained in view of the fact the third amended complaint shows on its face that defendants Bird were then in possession of at least some portion of the premises under a claim of right and were collecting the rents, issues and profits. In face of such allegation, the court could not, on the pleadings, hold that defendants were not seized nor possessed of the property in question within seven years before the commencement of the action. For the same reason, Sec. 104-2-6 would not bar any defense or counterclaim of defendants Bird as parties in possession. Sec. 104-2-5.10, enacted in 1943 and amended in 1947, has been held unconstitutional and inoperative in Toronto v. Sheffield, Utah, 222 P.2d 594. Consequently, the plea of such statute was likewise ineffective. It is true that plaintiff did plead in general terms that he was in possession and had been in possession of the property, but in view of the rule that generally specific allegations control over general allegations, State v. Rolio, 71 Utah 91, 97, 262 P. 987, some possession on the part of defendants Bird was shown to exist by reason of specific averments in plaintiff's third amended complaint. The court could not, therefore, have ruled as a matter of law that defendants were out of possession.

With respect to refusal of the court to grant plaintiff further opportunity to amend after plaintiff filed his fourth pleading, the record shows that had such amendment been allowed plaintiff could not have prevailed in view of the evidence hereinafter set forth.

The remaining question is whether or not there is competent evidence to sustain the trial court's judgment in favor of defendants Bird. On the basis of stipulations of fact and other admissions made on behalf of the respective parties, in addition to the evidence introduced, the trial court entered judgment of 'no cause of action' against plaintiff and quieted the title of defendants Bird as against plaintiff and defendant Bowers.

Plaintiff predicated his claim of title on a purported chain of title originating with the patentee. Since the chain can be no stronger than its weakest link, attention at the trial centered on the quitclaim deed from V. Lynn Hansen and wife to plaintiff, Rennold Pender, dated August 14, 1945. Bowers Investment Company on October 6, 1937, had quitclaimed the property to said Hansen. Over objections of plaintiff, evidence was introduced by the testimony of Hansen that he took a quitclaim deed from Bowers Investment Company, then record owner, as security for payment of a sum of money, and that several months later Hansen was paid in full the amount due and owing to him from that corporation, whereupon he gave a quitclaim deed to defendant Frank B. Bowers, the corporation's president. The corporation was not a party to this action.

Hansen further testified that prior to the time plaintiff contacted him in 1945 to procure a quitclaim deed, he did not regard himself as owner of any interest whatsoever in the property; that when plaintiff approached him with a request for a quitclaim deed, he informed plaintiff in substance that he (Hansen) did not own the property and that he had no interest to sell; and that plaintiff then said that in that case he need not hesitate to give plaintiff a quitclaim deed. At the request of plaintiff and upon payment of $25 Hansen did execute and deliver the quitclaim deed on which plaintiff based his claim of title. Plaintiff did not deny that the land had substantial value. Although plaintiff contradicted some of the testimony of the witness Hansen, his grantor, the trial court was entitled to believe Hansen's version as against plaintiff's testimony, particularly in view of plaintiff's interest.

Plaintiff contends that he was a bona fide purchaser for value. His testimony is to the effect that he relied on the record title in the office of the county recorded showing title in V. Lynn Hansen at the time he procured his quitclaim deed. One who procures a quitclaim deed for a nominal sum of money after being advised that the grantor does not own the property, can neither assert in good faith that he purchased the property without notice of any infirmity in the title, nor that he is a purchaser for value. Plaintiff's claim that he relied on abstracts of title in the office of the county recorder, avails him nothing in view of the fact that he was put on notice by his grantor that the latter then had no title. It is only when a purchaser parts with money constituting the purchase price in reliance on the title of his grantor, without notice of any...