Murphy v. Ganey , 23 Utah 633 ( 1901 )

HABT, District Judge

(after making the foregoing statement) . — While there is some conflict of testimony on the issues other than res adjudícala, the findings of the court thereon are all sustained by competent testimony, and we are satisfied therewith. While plaintiff, Mrs. Murphy, may have given notice of her claim to said premises to some of the real-estate agents of Ogden just before or about the time tfye divorce suit was filed, we are content with the finding of the trial court that defendants had no knowledge or notice of such claim before purchasing, and that they were bona fide purchasers for value. It will be observed from the statement of facts that, while the same issues, as to J esse J. Murphy obtaining title to the property in dispute, were involved in the divorce case and the present suit, yet no finding or decree was given originally in the divorce suit disposing of such issues. Only by inference was said property awarded to the husband, the decree providing for a lien to the wife upon said premises to secure the payment to her of the alimony awarded. It is to be noted that as to the supplemental decree, which attempted to award directly to the husband (divorced) said premises, said decree was made in the absence of the wife (divorced), and without notice to her counsel that such modification would be asked for. The last petition in said divorce case, filed after the death of the plaintiff, Jesse J. Murphy, and after proceedings in probate of his estate bad commenced, which petition it was afterwards stipulated by counsel might be dismissed as having been settled, simply sought to have the premises distributed to the petitioner for various reasons set up in the petition. As to whether the proceedings in the divorce case, to which defendants’ grantor was a party, should be held to be res adjudicata in the suit at bar, we do not deem it necessary to decide, in view of other questions in the record. Plaintiff’s conduct and position as defendant in the divorce case may be considered only so far as the same may bear upon the defenses of laches, estoppel m pais, and innocent purchasers. Plaintiff executed the deed to her husband, and placed it in his power to deal with the premises as his own. She failed to give notice of her claims for many years after the deed was wrongfully taken and recorded. Through her conduct the defendants were permitted to become bona fide purchasers for value. Where one of two innocent parties must suffer by reason of the wrong of a third party, he who trusted the third party, and enabled the wrong to be done, must suffer. Lawrence v. Investment Co. (Kan.), 32 Pac. 816; Butterfield v. Storage Co., 11 Utah 199, 39 Pac. 824. After plaintiff asserted in court her claim, she accepted a decree giving her a lien upon these premises. No appeal was taken by her from a decree inconsistent with her claim of ownership. For years she accepted and continued to receive the benefits of the lien decreed in tire shape of the enforced payments of alimony. She suffered this decree to be modified, awarding absolutely the premises to her former husband, and continued to receive the protection of the lien upon the same for the alimony still required to be paid. Then, years after, when the husband died, and she again came forward making claim for the property, she stipulates, through her counsel, for dismissal of the proceedings, because settled. Certainly, one purchasing, as the defendants did, upon only such information ■as the public records afforded, would be justified in considering that this plaintiff, had abandoned any or all claim made to the premises. She accepted the decree, and the modifications made therein, so far as the same were favorable to her. Why should she not be bound by the unfavorable portion? Besides remaining inactive from 1885, when the deed was taken and recorded, to 1889, when the divorce suit was begun, and in addition to her conduct in that case, she has permitted these defendants to be in possession of said premises since the purchase, in 1891, to the filing of the complaint herein, on December 28, 1899, paying taxes thereon, lifting therefrom mo-rh gage and lien incumbrances amounting to more than $1,000 (the same being a part of the $2,600 consideration), and slightly improving the property. Owing to her negligence, laches, silence, and other conduct, plaintiff should be held in equity estopped to make claim to the premises. Allen v. Cannon, 8 Utah 67, 28 Pac. 868; Irrigation Co. v. Moyle, 4 Utah 327, 9 Pac. 867; Butterfield v. Storage Co., supra; Raht v. Milling Co., 18 Utah 290, 54 Pac. 889, and cases cited; Oil Co. v. Marbury, 91 U. S. 587, 23 L. Ed. 328; Hoyt v. Lathan, 143 U. S. 567, 12 Sup. Ct. 568, 36 L. Ed. 259; Duke v. Griffith, 9 Utah 475, 35 Pac. 513; Dickerson v. Colgrove, 100 U. S. 578, 25 L. Ed. 618; Kirk v. Hamilton, 102 U. S. 68, 26 L. Ed. 79; Williams v. Merle, 25 Am. Dec. 612, notes; Saltus v. Everett, 32 Am. Dec. 547; Wendell v. Van Rensselaer, 1 Johns. Ch. 354; Clark v. Kirby, 18 Utah 263, 264, 55 Pac. 372; Pyper v. Association, 20 Utah 9, 57 Pac. 533.

Appellant complains that it was an abuse of the discretion of the court to permit, upon the commencement of the trial, defendants to amend their answers setting up the defense of res adjudicaia. We do not think that plaintiff was in any wise prejudiced by the amendment. Some time before the trial notice was given of the proposed amendment, the court also offered to continue the hearing if counsel was taken by surprise, or was not prepared to meet the new defense. It is also urged that it was error, under section 3414, Revised Statutes 1898, to permit II. J. Ganey to testify in tbe case without the consent of his wife. H. J. Ganey was a party t’o the suit, as well as his wife. The same counsel represented each. Counsel for the wife called the husband as a witness, and no objection was made on her behalf. It was to the interest of both husband and wife that the husband should testify. The testimony did not relate to confidential communications. There was an implied, if not an actual, consent. Rev. Stat., sec. 3412; Railroad Co. v. Hawthorn (Wash), 19 Pac. 25; Carney v. Gleissner (Wis.), 17 N. W. 398; Snell v. Bray (Wis.), 14 N. W. 14. The same witness was permitted to testify as to conversations had with Jesse J. Murphy, deceased. This was not in violation of section 3413, Revised Statutes 1898. The adverse party, the plaintiff, was not suing as executor, administrator, heir, legatee, or devisee of the deceased; nor as guardian, assignee, or grantee, directly or remotely, of such heir, legatee, or devisee. Appellant first introduced, over the objection of the defendants, testimony of the plaintiff as to conversations with the deceased, under whom the adverse parties, the defendants, were claiming as grantees. After securing the admission of such testimony, appellant should not complain that the court also admitted similar testimony from one of the defendants.

Appellant also complains that plaintiff was permitted to be cross-examined ,as to the contents of her cross-complaint in the divorce case, and as to the testimony she gave upon the trial of that case. This was proper cross-examination, in view of her testimony on direct examination as to the circumstances under which J. J. Murphy obtained the deed, and that she had told Ganey she was “getting a divorce from him on these grounds — cruelty, and selling my property.” The decision of tbe trial court is affirmed, with costs.

Bashin and Bartch, JJ., concur.