Peterson v. Peterson

• Decision Date: 02 March 1948
• Docket Number: 7056
• Citation: 190 P.2d 135,112 Utah 554
• Court: Utah Supreme Court
• Parties: PETERSON et al. v. PETERSON et al

190 P.2d 135

112 Utah 554

PETERSON et al. v. PETERSON et al

No. 7056

Supreme Court of Utah

March 2, 1948

J. D Skeen and E. J. Skeen, both of Salt Lake City, for appellants.

Leon Fonnesbeck, of Logan, for respondents.

McDONOUGH C. J., and PRATT, WADE and WOLFE, JJ., concur.

OPINION

LATIMER, Justice.

This is the second time this controversy has been before this court. In our original decision reported in 105 Utah 133, 141 P.2d 882, we held that plaintiff had made out a prima facie case for an accounting for trust funds as against John Charles Peterson.

The trial court, after receipt of remittitur set the matter for further hearing, and after finding that defendant's evidence substantiated that previously given by the plaintiff, ordered John Charles Peterson to account for the trust money received. In the hearings on this accounting it developed that certain of the trust funds, to wit, $ 1,700 had been used by John Charles Peterson to redeem one tract of land from a foreclosure sale. The tract of land redeemed was mentioned in the original complaint, and is particularly described as follows: The southwest quarter of the northwest quarter of Section 2, Township 14 North, Range 8 West, Salt Lake Meridian.

When repurchased, title to this property was not taken in the name of John Charles Peterson, but in the name of defendant Maria Peterson, his wife. After development of these facts plaintiff, on the 2nd day of May, 1944, filed an amended complaint against Maria Peterson seeking to impress a trust on the property. Some five months later a second amended and supplemental complaint was filed alleging that Maria Peterson had conveyed the property to her son, Lavar Peterson, who had knowledge of the trust, had not paid a fair price for the property, and was not a bona fide purchaser for value without notice of the claims of plaintiffs. In this latter complaint the relief sought was to have the deed from defendant Maria Peterson to defendant Lavar Peterson declared null and void.

Before referring to the facts in the present proceeding, we dispose of the contention made by respondent that the trial judge erred in the orders and judgment he entered in the accounting proceedings. In view of the fact that no appeal, cross-appeal, or cross-assignment of error from the orders and judgment made by the trial court have been taken or assigned by respondents, these matters are not properly before us. If, as respondent contends, all of the evidence on the accounting is not included in the bill of exceptions, this should have been corrected in the court below. No contention is made that all the evidence on the question we now decide, that was before the trial court, is not included in the record.

The facts upon which the judgment for accounting is based can be found in our previous decision. We refer only to those facts which have some relevancy to the question under consideration.

The original action was commenced against John Charles Peterson by serving him with summons on the 4th day of June, 1942. Leon Fonnesbeck, an attorney at law, was a defendant in the original action and so was familiar with many of the facts out of which the original controversy arose. He was served with summons on the 11th day of June, 1942, a short time after he had met with and advised John Charles, Maria, and Lavar Peterson on the details of transferring the property to Lavar Peterson. In the original complaint plaintiffs alleged that the tract of land herein involved, together with others, were held in trust by John Charles Peterson, and prayed for judgment of the court that he be decided to be so holding the lands. That action came on for trial on the 9th day of November, 1942, and on the 18th day of November, 1942, the trial court entered judgment sustaining defendant's motion for nonsuit. Plaintiffs subsequently appealed from this judgment, and on December 1, 1943, this court reversed the trial court as to the dismissal of plaintiff's suit against John Charles Peterson. The dates of these proceedings are important only insofar as they blend in with the acts and conduct of the individual defendants, in their dealings with the property.

The land involved in this controversy has the following history insofar as material to this action. In 1936, William E. Davis, administrator of the estate of Verulan Dives, commenced an action to foreclose a mortgage on the property. This action proceeded to judgment, the property was sold at a sheriff's sale to William E. Davis, as administrator, for the sum of $ 2,700. On the 10th day of April, 1937, said William E. Davis, as administrator, sold the certificate of sale to Maria Peterson, wife of John Charles Peterson and on the 18th day of December, 1937, the sheriff executed a sheriff's deed to Maria Peterson. The title remained in the name of Maria Peterson until the 18th day of May, 1942, at which time the title was transferred to defendant Lavar Peterson, son of defendants John Charles Peterson and Maria Peterson.

The court found, and there is evidence in the record to sustain the finding, that the $ 2,700 which John Charles Peterson was required to account for, was obtained from Leon Fonnesbeck as consideration for the purchase of certain other lands involved in the original action. One thousand seven hundred dollars of this money was paid to the sheriff by Fonnesbeck to redeem the property involved. According to the evidence, this was at the solicitation of Maria Peterson, and with the consent of John Charles Peterson. The record is sufficient to indicate that Maria Peterson knew the source of the money, and the record is silent as to why the title was taken in her name without her having given any adequate consideration for the transfer. Testimony and subsequent dealings by the Petersons, John Charles, Maria, and Lavar, indicate an acknowledgement that, until the property was purchased by Lavar, John Charles was the principal party claiming the land.

Passing now to the circumstances of the sale to Lavar Peterson: According to his testimony, prior to the execution of the deed he had discussed with his father the difficulty that was being encountered by the father in connection with the claims of other heirs of Anton Peterson, Lavar's grandfather. Approximately two weeks before summons was served on his father the title to the property was conveyed to Lavar. In order to accomplish this transfer, on the 18th day of May, 1942, John Charles Peterson, Maria Peterson and Lavar Peterson, all of whom resided together as a family, left Salt Lake City and travelled together to Logan, Utah, where they consulted with Fonnesbeck regarding the transfer. It was agreed that the property would be transferred to Lavar for a consideration of $ 1,500. Mrs. Peterson testified Fonnesbeck set the price, while Lavar testified he believed he, Lavar, did. The consideration for the transfer of the land was a five-year promissory note signed by Lavar for $ 1,500, payable at the rate of $ 25 per month. It is significant to note that the monthly payment was the sum that Lavar testified he had been regularly paying for room and board. At this time it is a fair inference that the three Petersons were apprised of the fact that suit was about to be instituted, as prior to the trip there had been previous conversations between them with other close relatives who later became plaintiffs in this litigation.

At the time of the execution of the note, no payment of money was made, the sole consideration being the note. The amount of the note was $ 200 less than the amount of the trust money used in 1937 to redeem the property from foreclosure proceedings. No payments, monthly or otherwise, were made on the note until almost a year later, and then, according to the findings, on May 2, 1943, the sum of $ 140 was paid. Prior to the time this payment was made the original trial had been held, Lavar was in attendance and, while apparently not called as a witness, he heard the evidence and proceedings. No further payments were made by him until December, 1943. During this month, the court found that Lavar made two payments, one in the amount of $ 600, and the other in the amount of $ 650. The date of payment of the $ 650, as found by the court, is clearly in error as the check offered in evidence bears the date of October 7, 1944. Regardless of the inaccuracy of the findings in this regard, these payments were made after this court on December 1, 1943, held that John Charles Peterson must account for the money received. The court further found that on subsequent dates not given in the findings, Lavar paid $ 306. A check offered in evidence to substantiate this payment bears date of October 14, 1944. The check for $ 650 was cashed the day before suit was started against Lavar Peterson, and the check for $...