Steele v. Boley
| Decision Date | 30 August 1890 |
| Citation | 24 P. 755,7 Utah 64 |
| Court | Utah Supreme Court |
| Parties | RICHARD STEELE, RESPONDENT, v. TOBIAS S. BOLEY, AND ANOTHER, APPELLANTS |
APPEAL from an order of the district court of the first district granting a new trial. The opinion states the facts.
Affirmed.
Mr George Sutherland and Mr. Samuel R. Thurman, for the appellants.
Mr. A Saxey, for the respondent.
This is an action at law by the plaintiff for the recovery of twenty acres of land situated in Utah county, in this Territory, of which he is the patentee. The defendants plead adverse possession of the land for more than seven years prior to the commencement of the action as a defense, and, as an equitable defense and cross-complaint, the defendants aver that in 1876 the plaintiff purchased of one C. W. Wilson his possessory right to 160 acres of public land, of which the twenty acres in controversy are a part, with the intention of entering the same under the land laws of the United States, and agreed with said Wilson, in consideration of his relinquishing to plaintiff his claim on the land, that as soon as he should acquire a patent to the 160 acres from the government he would convey to Wilson or his grantee or successor in interest the twenty acres in controversy; that immediately thereafter Wilson sold his interest in the twenty acres to the defendants, with the knowledge and consent of plaintiff, who advised them to buy the land, and that they might safely purchase the twenty acres and rely on his promise to convey to them; that they took immediate possession of the land, and have occupied and cultivated it ever since, and claimed to own it, and that such possession and occupancy was with the knowledge and consent of plaintiff, who has always recognized their right to the land until he began this suit; that plaintiff made his final proof at the United States land-office, paid the purchase price, and received a certificate of purchase for the land in 1880, and a patent in 1886, but that ever since then he has refused, and still refuses, to convey the twenty acres to defendants. Defendants ask that plaintiff be adjudged to convey the twenty-acre tract to them, and that he be enjoined from the further prosecution of this action, and for general relief. The case was tried to a jury upon the sole question of the adverse possession of the defendants, and a verdict was returned in their favor, and judgment rendered accordingly, no action being taken by the court in reference to defendants' cross-complaint. The plaintiff moved the court to set aside the verdict, and for a new trial, which was granted, and the defendants bring this appeal from the order granting a new trial.
On a former appeal in this case, from an order of the district court sustaining a demurrer to the defendants' answer, it was held by this court that the statute of limitations would run against the holder of a certificate of purchase from the government, and, before the issuance of a patent, in favor of one who is in possession of the land covered by the certificate, and holding adversely to him from the date of such certificate. Steele v. Boley, 6 Utah 308, 22 P. 311. ...
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