Young v. Texas Co.
| Decision Date | 20 November 1958 |
| Docket Number | No. 8882,8882 |
| Parties | d 206 Dallas H. YOUNG, Jr., and James W. Webster, Plaintiffs and Respondents, v. The TEXAS COMPANY, Defendant and Appellant. |
| Court | Utah Supreme Court |
Christenson, Novak & Paulson, Provo, for appellant.
Young, Young & Sorensen, Provo, for respondents.
This appeal is from a judgment on the pleadings adverse to The Texas Company.
Dallas H. Young, Jr. and James W. Webster, respondents herein, brought this suit to quiet title to certain real property located in Provo, Utah, against The Texas Company, appellant herein. From the pleadings it appeared that The Texas Company claimed an interest in the property by virtue of a lease obtained by it from respondents' predecessors in interest in January, 1955. Respondents purchased this property in 1956 subject to the lease. Respondents averred the lease was invalid and void because under the terms of the lease the lessor was to build a service station on the land and at the time the lease was to go into effect there was a zoning ordinance prohibiting the maintenance of a service station on that property.
Under the terms of the lease it was provided that the lessor should provide 'any and all permits required under existing laws for the construction and/or operation of service station on demised premises * * *' and it further provided that the lessee could after notice terminate the lease if it were prevented by any law or ordinance from establishing or continuing the business of distributing petroleum products. By stipulation of counsel appellant's counsel also filed an affidavit in which he averred that at the time the lease was executed the lessors had orally agreed to 'take the necessary steps to procure a change in the zoning to allow the operation of a service station upon the land in question * * *.'
In view of the admission of the affidavit we shall treat the judgment as a summary judgment as provided in Rule 12(c), U.R.C.P., to the effect that '[I]f, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. * * *' In the case of a summary judgment the party against whom the judgment has been granted is entitled to have all the facts presented and all the inferences fairly arising therefrom considered in a light most favorable to him. 1 Under this rule we will, for the purpose of this appeal, consider that it is true that respondents' predecessors in interest had agreed to obtain a change in the zoning so that a service station could lawfully be erected on the premises.
It is a well-recognized general rule that leases made with the knowledge and intent of both parties that the premises are to be used for an illegal purpose are unenforceable, 2 but it does not follow that because there is a zoning ordinance which makes the contemplated use illegal at the time the lease is executed that it is intended by the parties to use the premises for an illegal purpose where it is possible to obtain a change in the zoning ordinance so that the use can be made legal. 3 In the instant lease the parties have provided that the lessor must obtain all necessary permits which must be required for the construction of the service station contemplated being built under its terms and further provided that the lessee would have the right to terminate the lease if any ordinance or law prevented the construction or maintenance of the service station. Such provisions are consonant with an intention not to enter into an illegal contract but on the contrary contemplated that the use of the property would only be made when it could be legally done. In the absence of evidence to the contrary this is...
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