Shafer v. Killpack

• Decision Date: 14 June 1918
• Docket Number: 3202
• Citation: 53 Utah 468,173 P. 948
• Court: Utah Supreme Court
• Parties: SHAFER v. KILLPACK et al

173 P. 948

53 Utah 468

SHAFER v. KILLPACK et al

No. 3202

Supreme Court of Utah

June 14, 1918

Appeal from the District Court of Salt Lake County, Third District Hon. Geo. F. Goodwin, Judge.

Suit by John F. Shafer against John D. Killpack, Jr., James S.W Frame and wife, and others to foreclose a mortgage.

Judgment for plaintiff. Defendant James S.W. Frame and wife appeal.

AFFIRMED.

Skeen &amp Skeen for appellants.

S. P. Armstrong for respondents.

GIDEON, J. FRICK, C. J., and McCARTY, CORFMAN, and THURMAN, JJ., concur.

OPINION

GIDEON, J.

The complaint in this action contains the usual allegations for the foreclosure of a mortgage and for a deficiency judgment against the makers of the note secured by the mortgage. None of the defendants answered except James S.W. Frame and his wife, Frances Elizabeth Frame. These defendants filed a counterclaim alleging ownership of the premises in question and possession for more than ten years; that their codefendant John D. Killpack, Jr., through fraud, succeeded in obtaining possession of a deed executed on or about July 9, 1910, by Frame and wife conveying title to the premises. Judgment was entered foreclosing the mortgage and directing the sale of the premises. From that judgment Frame and wife appeal.

The facts, as disclosed by the record briefly stated, are these: Frame was the owner of and with his family, occupied the land in question as a home in the year 1910 and for some years prior thereto. During the early part of 1910 negotiations were had by and between Frame and Killpack with a view of trading the premises belonging to Frame for certain lands situate in the state of Idaho. The premises owned by Frame were incumbered with a mortgage in the sum of $ 1,500. The premises to be received in exchange were also incumbered with a mortgage for the sum of $ 3,500, and Frame agreed to give a second mortgage on the same premises to Killpack for $ 3,000 additional. The grantee in each deed assumed the respective mortgages. Negotiations had proceeded to the point that on July 9, 1910. Frame and wife executed a deed to Killpack for the premises in question. That deed was left in the possession of an attorney in Salt Lake City to be delivered to Killpack whenever such attorney found the title to the premises in Idaho to be as represented. Thereafter, on or about August 20, 1910, the attorney, having satisfied himself as to the title of the Idaho property, delivered the deed to Killpack, and the same was immediately recorded. Prior to that date, and some time during the month of July, 1910, Killpack, accompanied by plaintiff, Shafer, visited said premises, and found the same in possession of appellants, Mrs. Frame being present that day. At the request of plaintiff and Killpack she showed them through the house and explained the cost of constructing it. At the trial Mrs. Frame testified that she then understood that Shafer was there with a view of either buying or making a loan on the property. No inquiry was made by Shafer as to whether Frame or his wife had any interest in the property, and neither of them indicated or intimated to Shafer that they, or either of them, claimed any interest or ownership in said premises. On August 20, 1910, plaintiff loaned Killpack $ 3,000, taking a note and mortgage on the premises executed by Killpack and wife to secure that loan, and out of the money paid off the preexisting mortgage of $ 1,500. Shafer then gave the balance of the $ 3,000 to Killpack. It is admitted that at the time of the loan Frame with his wife and family still occupied the premises, and did for some time thereafter.

At the trial a jury was impaneled at the request of appellants. After the testimony was practically all in the court discharged the jury and determined the issues without the assistance or findings of the jury. The appellants insist that that was error, claiming that they were entitled to have the judgment of the jury upon the question of fraud raised by their counterclaim. The court made findings of fact determining all the issues on the question of fraud against appellants.

It is not pretended or claimed in this court that there was any evidence in the record which in any way sustained the allegations of the counterclaim that plaintiff was a party to any fraud, if any fraud was practiced, on the part of Killpack. It is conceded that, so far as plaintiff was concerned, he acted entirely in good faith in making the loan, and had no knowledge or information as to the dealings or nature of the contract between Frame and Killpack. While it is true that the court in its findings determined all of the issues on the question of fraud against appellants, holding there was no evidence to sustain the allegations, still, as we view the record, that becomes immaterial, and it was not error to refuse to submit such issues to the jury.

Furthermore these proceedings were equitable and the findings of the jury were only advisory to the court. It was in the power of the chancellor to direct such findings as in his judgment the facts warranted. Escamilla v. Pingree, 44 Utah 421, 141 P. 103, L. R. A. 1915B, 475. Counsel for appellant in their brief state that they rely wholly upon the doctrine or principle that the Frames being in the open possession of the premises was sufficient notice to put Shafer upon inquiry, and it was his duty to ascertain by some investigation what interest, if any, they retained or had in the premises occupied by them. In support of that contention counsel cite and rely upon two former decisions of this court, namely, Toland v. Corey, 6 Utah 392, 24 P. 190, and Land & Live Stock Co. v. Dixon, 10 Utah 334, 37 P. 573. We have no intention of departing from the rule laid down by this court in the case first above cited "that an occupant's possession is actual...