Dalton v. Stout , 87 Utah 39 ( 1935 )

This action relates to a small tract of land in Utah's Dixie where grapes grow abundantly and sunshine is seldom interrupted by shadow. This action is one of ancient vintage, having been instituted in the district court of the Fifth judicial district as long ago as May 20, 1924. Divers and sundry reasons have contributed to the delay. The file reached this court October 5, 1934, or more than ten years after the case was commenced.

The suit was instituted for the purpose of enforcing the equitable remedy of specific performance of a contract, entered into in the spring of 1910. There was also included in the complaint a cause of action to quiet title to the same property under a claim of title by adverse possession. Both causes of action seek to establish title to lots 1 and 5 of block 3 and 1, 2, and 3 of block 4, Rockville Townsite Survey, Washington county, Utah. The contract was executed by Alfred F. Stout, Sr., as vendor and Brigham Dalton, plaintiff, as vendee. When the suit was first instituted, Alfred F. Stout, Sr. (referred to as A.F. Stout), and Marvin Terry were defendants. Before the cause came on for trial and before the death of Alfred F. Stout, Sr., he and his wife, Mary E. Stout, made, executed, and delivered to R.R. Carey a warranty deed purporting to convey to him four of the five lots and described as lots 1 and 5 of block 3, and lots 2 and 3 of block 4, Rockville Townsite Survey. By amended complaint, Alfred F. Stout, Jr., as the administrator of the estate of Alfred F. Stout, Sr., deceased, R.R. Carey, and other persons were made defendants. The cause was tried to the court, sitting without a jury, resulting in a judgment in favor of the plaintiff.

Alfred F. Stout, Jr., as administrator of the estate of Alfred F. Stout, Sr., deceased, and R.R. Carey appeal. It appears that on March 9, 1910, A.F. Stout, who was at that time the owner of the lots in question, entered into a contract in writing whereby he agreed to sell to Brigham Dalton, and Brigham Dalton agreed to buy, the five lots above described. The contract did not operate as a present conveyance of title. It reads as follows:

Rockville Mar. 9, 1910

"A.F. Stout party of the first part has sold his city lots and the two best rooms to party of second part Brig. Dalton for one horse to be delivered now and 250 gallons of good molasses to be delivered at Lund on or by Nov. 1st, 1910. Deed to property will be turned over to party of second part at final payment.

"Signed A.F. Stout Sen. "B. Dalton."

The consideration stated was one horse and 250 gallons of molasses. The horse was to be delivered upon signing the contract, and the molasses was to be delivered at Lund, Utah, on or by November 1, 1910. Deed was to be delivered when final payment was made. At that time Alfred F. Stout, Sr., had a wife living, who survived him as his widow. Her name is Mary E. Stout. She did not join her husband in the contract with Dalton. She is not a party to this action. The issues have been so far stated for the purpose of indicating the matter upon which the trial court entered judgment.

Appellants assign no errors. There appear in the abstract two purported assignments of error. None appear to have been served, or, if served, have not been filed in this court. Without an assignment of error there is nothing before this court for consideration. "The assignment of error is the foundation upon which rests the right of the court to review any matter." State v. Kranendonk, 79 Utah 239, 9 P.2d 176, 177; Perrin v.Union Pac. R. Co., 58 Utah 1, 201 P. 405; Sterling Furn. Co. v. Tobias, 85 Utah 457, 39 P.2d 765, and authorities there cited.

Nothing can be done except to affirm the judgment of the trial court. Such is the order. Respondent to recover costs.

ELIAS HANSEN C.J., and FOLLAND and EPHRAIM HANSON, JJ., concur.