Utah Loan & Trust Co. v. Garbutt

• Decision Date: 01 March 1890
• Citation: 23 P. 758,6 Utah 342
• Court: Utah Supreme Court
• Parties: UTAH LOAN AND TRUST COMPANY, APPELLANT, v. ROBERT GARBUTT, RESPONDENT

23 P. 758

6 Utah 342

UTAH LOAN AND TRUST COMPANY, APPELLANT, v. ROBERT GARBUTT, RESPONDENT

Supreme Court of Utah

March 1, 1890

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts except that it may be worthy of notice that Section 4030 above mentioned is the same as Section 1355, California Civil Procedure Code, from which it is copied. That section is punctuated very differently from our section in the Compiled Laws, quoted in the opinion. It is as follows "Where all the executors named are not appointed by the court those appointed have the same authority to perform all acts and discharge the trust, required by the will, as effectually for every purpose as if all were appointed and should act together; where there are two executors or administrators, the act of one alone shall be effectual, if the other is absent from the State or laboring under any legal disability from serving, or if he has given his co-executor or co-administrator authority, in writing, to act for both; and where there are more than two executors or administrators, the act of a majority is valid."

Reversed and remanded.

Messrs Richards and Rolapp for the appellant.

Messrs Kimball and Allison for the respondent.

ZANE C. J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

ZANE, C. J.:

This action was instituted before a justice of the peace. The complaint alleges that the defendant was guilty of the unlawful detention of the premises described in it. The case is here by appeal from a judgment of the district court against the plaintiff, rendered upon the trial of the appeal from the justice. The rights of the parties to the possession of the property, so far as involved by this case, depends upon the legal effect of the following letter: "Salt Lake City, Utah, May 2d, 1887. Mr. Robert Garbutt, Jennings Building, Ogden--Dear Sir: I have placed check to your credit for rent to May 1st, 1887, and gave our lawyer memorandum to draw up your lease long ago, which he has not done yet; so I write the following for your protection until it is done: I hereby certify that Mr. Robert Garbutt has rented from the Jennings estate, in Ogden, the store in the Jennings building now in use as his barber-shop, until January 1st, 1891, at $ 22.50 per month rent. THOMAS W. JENNINGS, Agent Jennings Estate."

This letter contains the names of the parties, identifies the premises, specifies the amount of the rent, and fixes the term, and would have been a valid lease for the time mentioned, if Thomas W. Jennings had been duly authorized in writing to execute it. It was signed by Thomas W. Jennings as agent of the Jennings estate, of which the premises in dispute was a part, and it appears from the evidence that he was one of six duly qualified executors of that estate. The statute provides that "no estate or interest in real property, other than leases for a term not exceeding one year, nor any trust or power over or concerning it, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering the same, or by his lawful agent thereunto authorized by writing." 2 Comp. Laws Utah, 1888, Sec. 3916. And subdivision 5, Sec. 3918, Id., is as follows: "An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein," to be valid, must be in writing; "and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged." When the lease is for a longer term than one year, and it is to be made by an agent, the statute requires the lease, and the agent's authority to make it, to be in writing. While the letter purports to be signed by Jennings as agent of the estate, he was also one of six executors; and, when there are two or more executors, the following statute governs their action: "Sec. 4030. When...