Salt Lake Investment Co. v. Fox

• Decision Date: 28 May 1907
• Docket Number: 1767
• Citation: 32 Utah 301,90 P. 564
• Court: Utah Supreme Court
• Parties: SALT LAKE INVESTMENT CO. v. FOX

90 P. 564

32 Utah 301

SALT LAKE INVESTMENT CO. v. FOX

No. 1767

Supreme Court of Utah

May 28, 1907

APPEAL from District Court, Third District; C. W. Morse, Judge.

Action by the Salt Lake Investment Company against Jesse M. Fox. From a judgment for plaintiff, defendant appeals.

REVERSED, AND NEW TRIAL GRANTED.

Cyrus G. Gatrell and B. F. Johnson for appellant.

APPELLANT'S POINTS.

The findings in relation to adverse possession are not supported by the pleadings, and in this respect there is a material variance between the pleadings and findings, and such findings are nugatory and should be disregarded. (Maynard v. Insurance Co., 14 Utah 458; Loofbourow v Hicks, 24 Utah 49; Sowles v. Clawson, 28 Utah 74.)

It is manifest, then, that Moon's possession was not hostile in its inception. It began in subservience to the interest and title of Burke, and with the expectation of acquiring the complete legal title of Burke by deed. Moon did not enter the land claiming title, exclusive of any other right, because he well knew that the title was still in Burke and would so remain until the period of redemption had expired. (Ives v. Beeler, 9 Kan. App. 892, 59 P. 726, 27 Am. & Eng Enc. Law [2nd Ed.], 982, and cases cited.)

Sale for taxes for 1895 was made to E. Martin, and for taxes for 1896 to M. C. Moon. The law is well settled that a purchase at tax sale is not a payment of taxes. (Irving v Plownell, 11 Ill. 402; Wetting v. Bowman, 47 Ill. 17; McDonald v. McCoy, 121 Cal. 55, 53 P. 421.)

"An offer, by an occupant of land which he is holding adversely, to purchase it from the true owner, within the statutory period, not made to settle any real or threatened litigation, is a recognition of the owner's title, and will interrupt the running of the statute." (Litchfield v. Sewell, 68 N.W. 104; Lovell v. Frost, 44 Cal. 471.)

C. S. Patterson for respondent.

RESPONDENT'S POINTS.

"The plaintiff may, under an allegation of ownership and the right of possession, show adverse possession without alleging adverse possession as the source of his title." (13 Encl. Pl. & Pr. 284.)

So well settled does the rule seem to be that the text-writer for once finds no exceptions to cite. A few of the many cases that might be cited in support of the rule as laid down by the text-writers are as follows: Millett v. Lagomarsino (Cal.), 38 P. 308; Fudecker v. Irrigation Co., 109 Cal. 29, 41 P. 1024; Meyer v. Weigman, 45 Iowa 579; Sullivan v. Dunphy, 4 Mont. 499; Zeilin v. Rogers, 21 F. 103.

The Utah cases cited by counsel for appellant are easily distinguishable from the case at bar, and we call the attention of the Court to those cases. (Coleman v. Hines, 24 Utah 360.)

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

OPINION

McCARTY, C. J.

Plaintiff brought this action to quiet title to all of lots 25 to 36, in block 2 of South Lawn addition to Salt Lake city. The answer denies plaintiff's ownership to the lots, and alleges the title and right of possession thereof to be in the defendant.

It is admitted that the record title to the lots in question is in the defendant. Plaintiff, however, claims title by adverse possession. The facts upon which plaintiff (respondent here) bases its claim of title by adverse possession are as follows: On January 4, 1896, the lots in question were sold for taxes to E. Martin, who received a tax sale certificate therefor. On December 31, 1896, Martin assigned the tax-sale certificate to M. C. Moon. On February 3, 1897, the lots were again sold for taxes, and A. T. Moon, acting as the attorney and agent for M. C. Moon, his mother, bid in the lots for her and received a tax sale certificate issued in her name. In the spring of 1897, A. T. Moon, as agent for M. C. Moon, took possession of the lots under the tax-sale certificate mentioned, and leased them to one Souther, who farmed and cultivated the property from year to year until 1906. On July 5, 1898, M. C. Moon received a tax deed for the lots; but plaintiff does not rely upon this deed as a muniment of title. It was offered and admitted in evidence only for the purpose of "showing the claim that M. C Moon had to the property and to the fact that she paid taxes in 1895." On April 27, 1901, M. C. Moon conveyed by warranty deed the lots in question to Lillian M. Moon, who, on June 6, 1904, conveyed them by warranty deed to the plaintiff. A. T. Moon testified: "I claimed title partly under these certificates. . . . I was renting my office from the Groesbecks, and they told me that this property would never be redeemed, and that I would own it, and acting on their advice, as they were the former owners of the property, I considered I owned the property." And he further testified: "I based my claim of ownership on the tax titles, and the possession, and the assurances of the former owners." The court, among other things, found: "That the...