Wells v. Wells

• Decision Date: 30 August 1890
• Citation: 24 P. 752,7 Utah 68
• Court: Utah Supreme Court
• Parties: DANIEL H. WELLS, APPELLANT, v. EMMA G. WELLS, RESPONDENT

24 P. 752

7 Utah 68

DANIEL H. WELLS, APPELLANT, v. EMMA G. WELLS, RESPONDENT

Supreme Court of Utah

August 30, 1890

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr Joseph L. Rawlins and Mr. Arthur Brown, for the appellant.

Messrs Dickson and Stone, Mr. John A. Marshall, and Mr. Waldemar VanCott, for the respondent.

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

OPINION

ANDERSON, J.:

The complaint in this case alleges that the plaintiff is the owner and entitled to the possession, rents, and profits of a certain piece of real estate situated in the city of Salt Lake; that on the 14th day of November, 1879, the defendant, Emma Geneva Wells, in an action in the third district court of this Territory, wherein she was plaintiff, and her husband, Daniel H. Wells, Jr., son of plaintiff herein, was defendant, was by said court appointed a receiver to manage, lease, and rent said real estate, and apply $ 40 per month of said rents to the use and support of herself and child, and hold the overplus of rents, if any, subject to the order of said court; that the plaintiff in this action was not made a party to said divorce proceeding, nor heard therein; that the defendant is still collecting the rents of said property, and appropriating the same to her own use; that he has demanded of the defendant the surrender of the use and possession of said property, which was refused; that plaintiff is in need of the use and possession of said property; that defendant is not in need thereof; and asks that the order appointing the defendant as receiver of said property be revoked, and that she be required to surrender the property to plaintiff. The defendant, by her answer, denies all the allegations of the complaint, except her appointment as receiver of the property, the receipt of the rents thereof for herself and child, and her refusal to surrender the use and possession of the premises to plaintiff, and that plaintiff is the father of her former husband, Daniel H. Wells, Jr. The defendant pleads the statute of limitations in bar of plaintiff's action, and also sets up that in December, 1874, the plaintiff gave said premises to her said husband, Daniel H. Wells, Jr., and put him in possession thereof; that under said gift her husband, in 1875, began the erection of a dwelling-house on the premises, and that plaintiff advised and encouraged him to do so; that on March 22, 1876, plaintiff, for a good and valuable consideration paid to him, deeded said property to his first grandson, Daniel Hanmer Wells, son of defendant, and the said Daniel H. Wells, Jr., but excepted and reserved from said grant the use and possession of said premises during the natural life of said Daniel H. Wells, Jr., and during the life of this defendant, if she remained the wife of said Wells, Jr., until his death, and thereafter so long as she lived and remained unmarried; that defendant and her husband continued in possession of the premises from December, 1874, to November 14, 1879, when defendant procured a divorce from her husband on account of his habitual drunkenness, and was appointed receiver to manage and lease and collect the rents of said property for the use of herself and son, the grantee in said deed; that the plaintiff and defendant, and the said Daniel H. Wells, Jr., acted on and construed said deed as giving a life-estate to the said Daniel H. Wells, Jr., and also to defendant for such further time after his death as she did not remarry; that plaintiff knew of said divorce proceedings, and of said decree at the time, and always acquiesced in the same until he began this action; that the dwelling-house was uncompleted at the time of said divorce, and that the defendant thereafter completed said house and improvements with money furnished by herself and money derived from the rents thereof, and that the same was done with the knowledge and acquiescence of the plaintiff. The cause was tried to the court, and a judgment rendered dismissing plaintiff's complaint. A motion for a new trial was made and overruled, and the plaintiff brings this appeal from the judgment of the district court, and from the order overruling the motion for a new trial.

The court, in its findings of facts, found that "the defendant and Daniel H. Wells, Jr., were married September 22, 1874, and as issue of said marriage there was born October 2, 1875, Daniel Hanmer Wells, who is the first grandson of plaintiff; that in the latter part of the year 1874 plaintiff gave the premises in controversy to his son Daniel H. Wells, Jr., and put him in possession of the same; and that the son conveyed certain other real estate situated in Salt Lake City to his father in consideration of said gift; that relying on said gift, and claiming exclusive ownership of said premises, the son began the erection of a dwelling-house and other improvements thereon, in 1875, which dwelling-house and improvements were partially completed previous to the execution of any deed therefor, and with the knowledge, advice, and encouragement of plaintiff; that a short time prior to March 22, 1876, the said Daniel H. Wells, Jr., became addicted to habitual drunkenness, and the plaintiff determined not to convey the premises to him absolutely, but to convey the same so he, the said Daniel H. Wells, Jr., would have the use of the premises without the power of squandering the same, and in pursuance of such determination plaintiff executed and delivered to his said grandson a deed of said premises dated March 22, 1876; that the defendant and her husband, after the making of said deed, continued in the possession of the premises, the husband claiming an estate for life; and that plaintiff encouraged him in such belief until about June 22, 1889, when this action was begun; that defendant's husband, under such belief as to his life-estate therein,...