Home Owners' Loan Corporation v. Dudley , 105 Utah 208 ( 1943 )

I dissent. If plaintiff's grantor Beckstead occupied and used the tract in dispute continuously for seven years supposing that it was described in his deed and claiming to be the owner, and if during that period the land was not assessed for taxation, and if appellant stood by and allowed Beckstead to occupy, use and claim the land and to build a house on it then I think Beckstead acquired good title by adverse possession. Adverse possession does not depend upon intent to deprive another of his property. Possession taken under a mistaken belief that the possessor has title does not argue against the possession being adverse. 2 C.J.S., Adverse Possession, § 84, p. 630.

"Most assuredly greater consideration is due to title by adverse possession based upon an honest mistake than to one based upon deliberate and wilful wrong."

Johnson v. Thomas, 23 App. D.C. 141, 150, quoted inMcMillan v. Fuller, 41 App. D.C. 384, 391. Payment of taxes is not essential either to show the adverse nature of the possession nor to complete the steps necessary to acquire title, where no taxes are assessed against the property. 2 C.J.S., Adverse Possession, § 171, p. 746; Utah Copper Co. v.Chandler, 45 Utah 85, 142 P. 1119. Here it appears that the land was not assessed for taxation from 1925 until 1939. Plaintiff's predecessor, Beckstead, did however, pay taxes assessed upon the house which he had erected on the land during that period.

I think that, under the circumstances of this case, plaintiff is not prevented from claiming the benefit of the adverse possession of the land by its grantor Beckstead, even though it be adjudged that the land is not embraced within the survey description in plaintiff's deed. The circumstances seem clearly to show that Beckstead intended to mortgage to plaintiff and later to convey to plaintiff the tract of land in controversy. It seems obvious that plaintiff intended its mortgage and deed to include the tract where the home was located, the tract which abutted upon the state highway. If Beckstead gave plaintiff a conveyance which he supposed described this tract and delivered possession of it to plaintiff then I think that under the authorities referred to in the opinion, cited from 46 A.L.R. 793, 795, plaintiff could tack Beckstead's period of adverse possession to its own period of adverse possession and, if for any seven years continuously during that time the land was not assessed for taxation, the plaintiff acquired good title as against appellant.

PRATT, J., on leave of absence.