Fares v. Urban , 46 Utah 609 ( 1915 )

FRICK, J.

The plaintiff commenced this action against the defendant pursuant to Comp. Laws 1907 section 3511, to quiet the title to a parcel of land 50x75 feet in Park City, Summit County, Utah. The complaint is quite brief, and is in the usual form in such actions. The defendant answered the complaint, also claiming title to the westerly 25x75 feet of the property in question by adverse possession. She subsequently, over plaintiff’s objection, was perimtted to file a supplemental answer in which she also claimed title by a deed of conveyance to the 25x75 feet, and at the trial produced said deed, and thereunder claimed title from the grantee of the original patentee. The plaintiff neither pleaded nor proved a record title, but relied upon his claim of adverse possession. The court to whom the case was submitted made findings of fact and conclusions of law in favor of the defendant. A judgment quieting the title to the 25x75 feet claimed by her was accordingly entered, and the plaintiff appeals.

Primarily, defendant’s counsel contend that we cannot consider appellant’s assignments relating to the sufficiency of the evidence, for the reason that the action, although denominated equitable,, is nevertheless one at law, for the reason that it is, in legal’ effect, an action in ejectment. It is argued, therefore, that we are bound by the court’s findings, unless there is an entire lack of evidence in support of any material 1 finding. The question respecting the right of a party to sue in ejectment or under section 3511, supra, was considered and decided contrary to counsel’s contention in Gibson v. McGurrin, 37 Utah, 158, 106 Pac. 669. As is there intimated, if either party desires to exercise his right to a jury trial, he must demand a jury as required by our statute, and if he fail to do that at the proper time and in the proper manner, and if he try the case as an action in equity, the case must be considered as such by us.

Proceeding, therefore, to a consideration of appellant’s assignments, we remark that they practically all relate to the findings of fact. It is insisted that the court erred in its findings of fact, for the reason that the evidence does not support the findings. It is needless to set forth the evidence except to say that the appellant did not attempt to establish 2, 3 a record title to any part of the 50x75 feet claimed by him, but relied entirely upon his claim of adverse possession and the payment of taxes for the period required by our statute. Under our statute title by adverse possession cannot be established unless the adverse claim is supported by the payment of all taxes that are assessed against the particular property claimed for the period prescribed by the statute. Now, in this case appellant wholly failed to prove that he paid the taxes on the particular 50x75 feet claimed by him for the time required by the statute. In that regard the only description of the land now claimed by appellant as given in the tax receipts produced by him in evidence is as follows: “50x75 feet, Heber avenue.” The evidence conclusively shows that either appellant or his wife claimed to own property adjoining the aforesaid 50x75 feet on the east, and hence the tax receipts introduced are of little, if any, significance. This is made more apparent still from the fact that it is made to appear from the evidence that respondent also had tax receipts which she claimed referred to the same property, that is, to the west half of said 50x75 feet, in which the description is just as vague and uncertain as it is in appellant’s receipts.

Appellant thus failed to prove title by adverse possession, and, since he also failed to prove any other title, the court was clearly justified in finding against his claim of title. Then, agaip, appellant’s right of possession as well as possession were disputed, and the evidence upon that phase of the case is not only sufficient to justify a finding against 4 his claim of adverse possession, but we think the finding is in accordance with the weight of the evidence. If it were conceded, therefore, that respondent had failed to prove a good title, or that the court had erred, as claimed by appellant, in permitting her to set up an additional title in her supplemental answer, yet it must also be conceded that her title is certainly good as against appellant, since he established no valid claim or title, either in law or in equity, and for that reason also any error the court may have committed in the particular just stated could not have affected, and did not affect any of his rights.

The judgment therefore should be, and it accordingly is, at firmed, with costs to respondent.

STRAUP, C. J., and McCARTY, J., concur.