Baumgarten v. Chipman , 30 Utah 466 ( 1906 )

BARTCH, O. J.

This action was instituted to recover $2,263 for a breach of a covenant of warranty contained in a conveyance of certain land situate in Salt Lake City, made by the defendants to the plaintiff; the plaintiff claiming a failure of title'to a part of such land, as determined by an action wherein Stringfellow and others were plaintiffs, and Gray, Baumgarten, and others were defendants. At the trial herein the court found the issues in favor of the defendants and entered a decree accordingly.

The most important assignment of error is the one relating to the third finding of fact, where the court found “that the defendants were never notified, by plaintiff or otherwise; of the commencement or the pendency of said, or any, action involving the title, ownership, or possession of any portion of the above-described premises; nor were they ever notified by plaintiff or otherwise, or requested to defend the same.” The appellant insists' that this finding was contrary to the evidence, because as is urged, the proof shows that the defendants were not only notified by the plaintiff of the commencement and pendency of the action which involved the title, owership, and possession of the premises, and by the judgment in which, as is claimed by the appellant, the plaintiff was evicted from a portion of the land, but also that the defendants were notified by the plaintiff to defend the action. We are of the opinion that this contention is not well founded. It appears that, after service had been made in the Stringfel-low suit, Baumgarten delivered the papers to the defendant, James Chipman, and requested him to defend the action. Ohipman stated to' him that he wanted to submit them to his attorneys. Whether he did so does not expressly appear, but in a day or two be banded them back to Baumgarten, with the statement that be “would have nothing to do with it.” The plaintiff in the Stringfellow suit alleged that Gray and Baumgarten bad encroached upon a strip of land ten and one-half inches in width adjoining the tract conveyed by Chipman on the north, and that they were building and threatening to build a permanent brick wall thereon, against the plaintiff’s will. The prayer was that Gray and Baum-garten be enjoined from continuing such encroachment. The plaintiff’s land was described in the complaint as follows: “Beginning at a point on the east line of lot 6, block 69, plat A, Salt Lake City survey, at a point sixteen inches north of the southeast comer of said lot 6, and running thence west eight rods; thence north sixteen feet and nine inches; thence east eight rods; thence south sixteen feet nine inches, to place of beginning.” The land conveyed by Chipman to Baum-garten is described in the deed as follows: “Commencing at a point 'sixteen inches north from the southeast corner of lot 6; thence running west nine rods; thence south sixteen inches; thence west one rod; thence south eighteen feet and four inches; thence east ten rods; thence north nineteen feet and eight inches, to beginning.” A comparison, as will be noticed, of these two descriptions, shows that each commences at the same point and establishes identically the same dividing line, so that the description in the complaint, as it then appeared, showed clearly that none of the land conveyed by the deed could be affected by any judgment which might be rendered in accordance with that complaint, and therefore it was not incumbent upon the warrantor to defend that action as it was then pending. As matters then stood, Baumgarten could have suffered judgment by default, or have filed a disclaimer, without fear of eviction from any part of the land conveyed to him. When, afterwards, the complaint was amended so as to .cover a small strip of land covered by the description in the deed, the warrantor received no notice whatever thereof. This is admitted by the warrantor himself. Under such facts in evidence the warrantee cannot be heard to complain of the finding of the court that the warrantor never had notice of the commencement or pendency of any suit involving tbe title or possession of any portion of tbe land conveyed. Tbe evidence is ample to support tbe finding, and this court cannot disturb it.

Nor, under tbe facts and circumstances disclosed by tbe record, do we tbink tbe "judgment roll in tbe Stringfellow case constituted sufficient evidence of eviction by paramount title. In sucb case, where no notice of the commencement or pen-dency of tbe action bas been given to tbe warrantor, tbe war-rantee, wbo brings an action for breach of covenant of warranty, must sbow by proof debors the record of eviction that-be bas been evicted by paramount title. Although notice of tbe pendency of an adverse suit is not indispensable to a recovery in an action on tbe covenant, yet, as settled by tbe weight .of authority.

“If no notice has been given, the record, of such adverse suit is not even prima faoie evidence that the title was a paramount one, though it may under some circumstances be evidence of eviction.” (Rawle on Covenants for Title, sections 125, 123-124; 8 Am. & Eng. Ency. Law (2d Ed.), 207, 208; Maupin on Marketable Title to Real Estate, 405-408.)

In the cas© at bar, as we have thus seen, there was no proof of notice to the warrantor of tbe Stringfellow suit, and no evidence to sbow an eviction by paramount title, and tbe court, therefore^ correctly held tbat tbe warrantee was not entitled to recover. We find no error in tbe action of tbe court.

Tbe judgment is affirmed, with costs.

Me CANTY, and STRAUP. JJ., concur.