Tarpey v. Madsen

• Decision Date: 10 August 1903
• Docket Number: 1458
• Citation: 73 P. 411,26 Utah 294
• Court: Utah Supreme Court
• Parties: D. P. TARPEY, Respondent, v. ANDREW MADSEN, Appellant

73 P. 411

26 Utah 294

D. P. TARPEY, Respondent, v. ANDREW MADSEN, Appellant

No. 1458

Supreme Court of Utah

August 10, 1903

Appeal from the First District Court, Box Elder County.--Hon Charles H. Hart, Judge.

Action of ejectment. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.

B. H Jones, Esq., for appellant.

L. R Rogers, Esq., for respondent.

BASKIN, C. J. BARTCH and McCARTY, JJ., concur.

OPINION

BASKIN, C. J.

--This is an action of ejectment. The answer denies the alleged title of the plaintiff, pleads the statutes of limitation, and also alleges, in substance, that the said D. P. Tarpey on the 26th day of April, 1890, entered into an agreement to sell the premises described in the complaint to one A. H. Snow while the defendant, Andrew Madsen, was in open and notorious possession of the same; that on the 25th of April, 1891, the said Snow commenced an action of ejectment in the court below against the said Madsen to recover said premises; that on the 21st of September, 1891, the said D. P. Tarpey and his wife executed and delivered to the said Snow a deed in which said premises were, in terms, conveyed to said Snow; that while the action of ejectment between the said Snow and Andrew Madsen was still pending, on the 6th of June, 1891, they entered into an agreement by which the said Madsen agreed, in consideration of one dollar and the covenants on the part of the said Snow, to sell and convey, by quitclaim deed, said premises to him, upon the payment of $ 500, and in consideration of the premises the said Snow agreed to pay to the said Madsen, within sixty days, said sum, and upon the conveyance of said premises to him. It was further mutually agreed that, in the event of a failure of the said Snow to comply with the terms of the agreement, the said Madsen should be released from his obligation to so convey said premises, and the said Snow should forfeit all right thereto. Afterwards the time of payment was extended thirty additional days. Before the expiration of the extended time for payment, the said Snow notified the said Madsen that he had determined not to take the land, and has ever since failed to perform his part of the agreement; that the said D. P. Tarpey had full knowledge of said agreement, and that the said Snow had abandoned it and failed to perform its conditions, and forfeited all rights to said premises; yet, notwithstanding his full knowledge of the above facts, he, on the 11th of January, 1892, pretended to purchase from the said Snow, and took a conveyance of the same from the said Snow and his wife. Afterwards the said D. P. Tarpey, on the 12th of January, 1894, instituted the present suit, and judgment was rendered in his favor.

The defendant made a motion for a new trial, on the grounds among others, of the misconduct of the jury, and accident and surprise which ordinary prudence could not have guarded against. The motion was denied, and the appellant has assigned this as error. In support of this motion the affidavit of the defendant was introduced, in which he, in substance, deposed "that he is informed and believes, and therefore states the fact to be, that the examination of the jury in this case was not taken down by the official reporter; that his counsel examined the juror Moroni Jensen respecting his relationship with the plaintiff, and that the said juror stated that the relation of debtor and creditor did not exist between him and the plaintiff, and that the said juror stated that he knew of no reason why he could not sit in the case, and a just and fair verdict render according to the evidence as given in open court, and according to the law as laid down by the judge, while in truth and in fact the said juror Moroni Jensen had a suit pending at that very time between himself and five others,...