Van Pelt v. Park

• Decision Date: 12 December 1898
• Citation: 55 P. 381,18 Utah 141
• Court: Utah Supreme Court
• Parties: JOHN A. VAN PELT, RESPONDENT v. BOYD PARK, ADMINISTRATOR OF THE ESTATE OF JOHN G. LOGAN, THE NATIONAL BANK OF THE REPUBLIC, AND J. F. WOODMAN, APPELLANTS

55 P. 381

18 Utah 141

JOHN A. VAN PELT, RESPONDENT v. BOYD PARK, ADMINISTRATOR OF THE ESTATE OF JOHN G. LOGAN, THE NATIONAL BANK OF THE REPUBLIC, AND J. F. WOODMAN, APPELLANTS

Supreme Court of Utah

December 12, 1898

Appeal from the Third District Court, Salt Lake county, Hon. Ogden Hiles, Judge.

Action by plaintiff to establish a trust in his favor in a certain interest held by defendant's decedent at the time of the commencement of the action. From a judgment and decree in favor of plaintiff, defendant Woodman appeals.

Affirmed.

William C. Hall, Esq., for appellant.

In the case of Chambers v. Emery, 45 Pacific, 194-195, this court said: "Where, however, a bill in equity seeks to convert a defendant who purchased property and had a legal title thereto, made in his own name by an instrument in writing, into a trustee for the plaintiff, upon the ground that the purchaser was acting as agent and that plaintiff furnished the money, the burden is on the plaintiff to establish by evidence dehors such instrument, such facts as will show that the purchaser was acting for the plaintiff and such facts must be inconsistent with the idea that the purchaser acted solely for himself."

"Nothing short of certain, definite, reliable and convincing proof will justify the court in divesting one man of title to lands evidenced by a regular deed and putting in another." Midmer v. Midmer's Executors, 26 N. J. Equity 299; Johnson v. Quarles, 46 Mo. 423.

In Howland v. Blake, 97 U.S. 624, the court said:

"In each case the burden rests upon the moving party, of overcoming the strong presumption arising from the terms of a written instrument." See also 1st Storey, Eq. Jur., Sec 157; 2d Pomeroy, Eq. Jur., Sec. 1040; Dalton v Dalton, 14 Nev. 419; Maxwell Land Grant case, 121 U.S. 365; Crissman v. Crissman, 23 Mich. 217; Nichols v. McDonald, 101 Pa. St. 514; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Lench v. Lench, 10 Vesey 511; Bingham v. Thompson, 4 Nev. 224; Nevins v. Dunlap, 33 N.Y. 676; Deseret National Bank v. Burton, et al, Utah, .

Messrs. Pierce, Critchlow & Barrette, for respondent.

We are not unaware that counsel has in the record, certain statements as to the insufficiency of the evidence to justify the findings of fact and the conclusions of law, but these are manifestly insufficient to permit this Court to look into or weigh or review the testimony. The assignments made by counsel are merely a statement that the evidence is insufficient, without any attempt to set out the particulars in which it is insufficient. Such specification of particulars is required by our statute. R. S. Sec. 3284.

This provision which is found in the same terms in the former code, 2d C. L., Sec. 3393, is precisely the provision relative to statements on motion for new trial, 2d C. L., Sec. 3395, and has thus been passed upon by this court many times. Gill v. Hecht, 13 Utah 5; Mader v. Taylor, et al., 15 Utah 161; Canal Co. v. Edwards, 9 Utah, 477; Sterling v. Parsons, 9 Utah, 81; Bankhead v. Railroad Company, 2 Utah 511.

General disapproval of findings is not a specification in an exception for insufficiency of evidence. Treat v. Forsyth, 40 Cal. 488; Coleman v. Gilmore, 49 Cal. 341.

The attention of the court must be called to the precise point intended by an exception. Otherwise it will not avail. Scheile v. Brokahus, 80 N.Y. 615.

In any event, this court, even if it looks into the evidence will not attempt to revise the findings of the trial court. Watson v. Mayberry, 15 Utah 266.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.

On the 13th day of February, 1896, Andrew Howat, trustee, and Myn Mattschappy, Utah, a corporation, as parties of the first part, and Percy S. Sowers, John G. Logan (now deceased), and the appellant John F. Woodman, as parties of the second part, entered into a contract by which the first parties agreed to sell, and the second parties agreed to purchase the Winnemuck group of mining claims for $ 30,000, of which $ 10,000 was to be paid on or before April 12, 1896, and the remainder on or before February 15, 1899. The second parties were to have possession during the interim, with the privilege of mining therein, disposing of the ores, and paying twenty-five per cent. of the sales as rental or royalties. The $ 10,000 payment falling due April 12, 1896, was paid by appellant Woodman, and the second parties took possession of the mines and have ever since been mining therein.

This action was originally commenced by plaintiff against Logan, who, after its commencement died intestate, and Park, his administrator, was substituted as defendant. In August, 1896, appellant Woodman, having purchased from Logan all his interest in the Winnamuck group of mines, was also made defendant in the action, so that at the time the action was commenced, the title to one-fourth of the property was held by defendant Logan (one-half of this one-fourth interest was claimed by plaintiff.)

During the pendency of the action Logan conveyed the one-fourth interest held in his name to Woodman, who took it with actual notice of plaintiff's claim and interest therein. The interest of the plaintiff to one-eighth of the property, (one-half of Logan's one-fourth interest,) arises out of his claim that he and Logan were co-partners in the transaction which resulted in negotiating, procuring and acquiring the one-fourth interest in the mines by Logan.

This action was brought to establish a trust in favor of the plaintiff Van Pelt, to the extent of an undivided one-eighth interest, named in the contract, the title of which at the time of the commencement of the action was held by Logan, but at the time of the trial was held by appellant Woodman.

The court found from the evidence that plaintiff Van Pelt and Logan entered into an equal contract for the purpose of negotiating a purchase and resale of the mining property in question; that the contract referred to was obtained as a result of the negotiations, time, efforts, and labor expended by plaintiff and Logan and others, and that the one-fourth interest in the mine conveyed to Logan under such contract, was held by him for himself and plaintiff jointly; that Van Pelt was the owner and entitled to a one-eighth interest in the mines, and that appellant Woodman knew of the relation between these parties, with respect to plaintiff's interest in the mines, and that he took from Logan, during his life-time, a deed for a one-fourth interest, charged with the equity in favor of the plaintiff, for a one-half of the one-fourth interest. Appellant Woodman is the only party who appeals. The appeal is made upon both questions of law and fact.

The appellant presents exceptions to the findings of fact and conclusions of law which are objected to because the same are not sufficiently specific, and no attempt is made to set out the particulars wherein the evidence is insufficient to support the findings, conclusions of law, and decree. This is an equity case. It comes to this court upon appeal, upon questions of both law and fact.

In the case of Whittaker v. Ferguson, 51 P. 980 this court held that under the provisions of Sec. 9, Art. 8 of the Constitution, "In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone. Under this provision, it will be observed, an appeal may be taken in equity cases on questions of fact as well as of law. The appellate court therefore, by necessary intendment and implication, has the same jurisdiction and power in equity cases to determine questions of fact as of law, and may go behind the findings and decree of the trial court, consider all the evidence, decide on which...