Stephens v. Stephens

• Decision Date: 21 December 1917
• Docket Number: 3115
• Court: Utah Supreme Court
• Parties: STEPHENS v. STEPHENS et al

169 P. 742

51 Utah 267

STEPHENS v. STEPHENS et al

No. 3115

Supreme Court of Utah

December 21, 1917

Appeal from District Court of Weber County, Second District; Hon. N J. Harris, Judge.

Action for partition by John F. Stephens against Olive Ethel Stephens and Merlin H. Stephens, a minor, by Olive Ethel Stephens, his guardian. Harriet O. Shaw was made a party at the instance of the defendants.

Judgment of partition and accounting. Defendants appeal.

REMANDED, with directions.

R. S Farnsworth for appellants.

Chez &amp Stine for respondents.

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

OPINION

THURMAN, J.

This action was brought for the partition of certain real property in Ogden, Utah. Plaintiff and defendants are cotenants of the property described in the complaint and certain other property described in the answer and counterclaim. The property was accumulated by plaintiff and one James Henry Stephens, now deceased, as partners during the lifetime of the latter, each owning a one-half interest therein. Defendants are the widow and adopted son of the said James Henry Stephens, and have succeeded to his interest in said property, each owning a one-fourth interest therein. The plaintiff and James Henry, for the sake of brevity, will hereafter be referred to as "John" and "Henry." In addition to the property described in the complaint the defendants, in their answer, alleged the existence of other lots and parcels of land in Ogden owned by plaintiff and defendants, and prayed for a partition thereof. Among the said lots and parcels of land so alleged in the answer and counterclaim to be owned by plaintiff and defendants is one parcel standing in the name of Harriet O. Shaw, mother of John and Henry. Defendants prayed that Harriet O. Shaw be made a party to the action in order that the rights of all parties might be adjudicated and determined. An order was made to that effect, and said Harriet O. Shaw was made a party to the action.

Plaintiff replied to the answer and counterclaim of the defendants, denying, among other things, that plaintiff and defendants owned the property standing in the name of Harriet O. Shaw referred to in defendants' counterclaim, and on the contrary affirmatively alleged that it was, and at all times had been, the property of said Harriet O. Shaw. The said Harriet O. Shaw also appeared in answer to the order making her a party, and answering the defendants' cross-complaint denied the allegations thereof, and affirmatively alleged that she was the owner of the property standing in her name referred to in defendants' cross-complaint.

The case was tried to the court. A partition and accounting was ordered as to the common property not in dispute, and a judgment rendered in favor of respondent, Harriet O. Shaw, for the parcel of land claimed by her. Defendants appeal from this part of the judgment and assign many errors, all of which, however, relate to the ownership of the land awarded to respondent. The single question, therefore, presented by this appeal, is as to the ownership of this particular parcel of land.

With a single exception, which will hereafter be referred to, there is very little, if any, conflict in the evidence. The material facts are that respondent is the mother of John and Henry, and is, and ever since 1896 has been, the owner in fee simple of the parcel of land upon which two houses were constructed as hereinafter stated; that John and Henry, in the lifetime of the latter, were partners in the saloon business in Ogden, and as such accumulated the common property for which this action for partition was brought; that in 1906 their mother, the respondent here, was living where she still lives in her own home on a parcel of land adjacent to the land and premises in controversy; that in the fall of that year John and Henry, with some little assistance of other relatives in Ogden, constructed two houses on this land of their mother's, which houses have ever since been rented and occupied by divers tenants, some of whom were witnesses at the trial of this case; that ever since the houses were constructed the respondent has had possession of the keys to both houses when not occupied by tenants, but usually the rents have been collected by one or the other of her boys, John or Henry; that prior to the death of Henry in April, 1910, he generally collected the rent, but some of the time it was collected by John, and after the death of Henry it was collected by John. The record, however, shows that on a few occasions the rent was paid to the mother direct. The exact arrangement under which these houses were constructed is to a great extent a matter of deduction from circumstances. The fact that defendants claim an interest in the property as heirs of their deceased husband and father, and respondent claims as an adverse party, disqualified her as a witness at the trial as to any fact equally within the knowledge of Henry in his lifetime. The same rule was applied to the plaintiff, as a witness, the result of which was that all of the parties to whatever arrangement there was were either dead or disqualified by law. Hence the court in the trial of the case was compelled to rely solely upon inferences from circumstances or from statements of parties not disqualified by interest and who knew nothing of the formal understanding, if there was one, between the parties. It is claimed by the appellants in their counterclaim that this property, both the land and the houses, was the common property of plaintiff and defendants the same as the other common property about which there is no dispute. In their assignments of error they charge, in effect, that the court erred in not finding that the respondent had merely a life estate in the premises, and that she was entitled only to the rents and profits during her lifetime. This claim applies both to the land and the houses thereon. On the other hand, the respondent's contention is that she is the absolute owner in fee simple of both the land and the houses; that the land was hers in fee simple before the houses were built, and that her boys, John and Henry, and other relatives, constructed the houses for her and gave them to her; that John and Henry collected the rents for her, and accounted to her for the money received; that such services were performed by them as sons for their mother, and not otherwise.

The question presented is largely one of fact, and in view of the fact that the finding of the court relating to this particular property is in apparent conflict with the conclusion of law and judgment awarding the property to respondent, it becomes necessary to examine the evidence with more care and detail than would otherwise be necessary in order, if possible, to reconcile the conflict referred to. The finding in question will be referred to specifically hereafter.

We have diligently searched the record in this case for any substantial evidence sufficient in law to support appellants' claim that the respondent gave the land in question to her boys, John and Henry, and have found none except the unsupported...