Huntsman v. Huntsman , 56 Utah 609 ( 1920 )

THURMAN, J.

This is an action to cancel a mortgage on certain real estate in Fillmore City, Millard county, and to quiet title thereto. Plaintiff and defendant Emma B. ’Huntsman, hereinafter called Mrs. Huntsman, each claims to be the owner in fee of the premises in question, and the other defendants claim title under a mortgage from Mrs. Huntsman. Mrs, Huntsman not only claims to be the owner by title of record, but also by adverse possession since 1903. It is not necessary to make a detailed statement of the pleadings. Such parts as may be material will be specifically referred to hereinafter in connection with the matters to which they relate.

The trial court found the issues in favor of the plaintiff. Judgment was entered, and defendants appeal.

At the trial many collateral matters were injected into the case. They failed to reflect much light on the issues to be tried. Some of them tended to confuse more than to enlighten.

The plaintiff rests his claim upon a chain of title commencing with a patent from the United States, as follows: (1) United States to Joseph V. Robinson, mayor of Fillmore City, May 1, 1872; (2) a townsite deed from Joseph Y. Robinson, mayor, to James Huntsman, June 29, 1881; (3) an administrator’s deed from Gabriel Huntsman, administrator of the estate of James Pluntsman, deceased, to Mary Huntsman, August 1, 1885; (4) Mary Huntsman, by her attorney in fact, to Jacob Huntsman, in fee simple, October 19, 1885; (5) Jacob Huntsman and wife to Willis Huntsman, plaintiff in this action, in fee simple, June 18, 1914. These transfers are all of record in the office of the county recorder of Millard county.

Defendant Mrs. Huntsman rests her claim, as far as record title is concerned, upon the same chain of title down to and including the title of Jacob Pluntsman. Thence on she relies on the following: (1) A power of attorney from Jacob Huntsman to Peter Pluntsman authorizing the purchase and sale of property, both real and personal, of date May 13, 1875; (2) Jacob Huntsman, by Peter Huntsman, his attorney in fact, in consideration of two dollars, to Fanny Allen, in fee simple, November 15, 1897; (3) Fanny Allen to Peter Pluntsman, in fee simple, April 19, 3898; (4) Peter Huntsman to Emma Huntsman, defendant in this action, in fee simple, July 2, 1908. These transfers are also of record in the office of the county recorder of Millard county.

There is another transfer and also the record of a court proceeding concerning the premises in question, but they are merely collateral in this action.

The ownership of the property in litigation, as shown by the record, depends entirely upon the question as to whether or not Peter Huntsman, as attorney in fact of Jacob Huntsman, had the power to convey the property to Fanny Allen for a nominal consideration; in other words, whether or not he had the.power under his letter of attorney to make an absolute gift of the property, for that is all the transaction amounts to, in substance and effect. There is no question but that the owner of property has a right to give it away if he chooses. Pie has the right to convey it for a nominal consideration, but, if he is acting under a power of attorney for another, then he has no right to give the property away or convey it for a mere nominal consideration, unless authority so to do is conferred by the instrument under which he assumes to act. It follows, therefore, that the power and authority to Peter Huntsman to convey the property to Fanny Allen without substantial consideration depends entirely upon the instrument under which he executed the conveyance. The written instrument conferring the power is the chief cornerstone in the foundation of defendants record title. It follows as a corollary that if the deed to Fanny Allen was without authority, then the deed from her back to Peter Huntsman and from Peter Huntsman to his wife conveyed no title.

The power of attorney is of considerable length, and if quoted in full would occupy more space than is necessary in this opinion. We shall therefore quote only so much as is necessary to demonstrate the purpose of the instrument, and the extent of the power conferred:

“Know all men by these presents that I, Jacob Huntsman, of Kern county, state of California, have made and constituted and appointed, and by these presents do make, constitute, and appoint, Peter Huntsman, of Fillmore City, Millard county, Utah territory, my true and lawful attorney, for myself and in my name, place, and stead, and for my use and benefit, and particularly to act in my stead in so far as I am interested as an heir, of all that certain property now held in a co-operative organization whose headquarters are at or near Fillmore City, Millard county, Utah territory, * * * to lease, let, demise, bargain, sell, remise, release, convey, mortgage, hypothecate lands, tenements, and hereditaments, upon such terms and conditions and under such covenants as he shall see fit.”

The instrument also confers the usual power to perform every act and thing requisite and necessary to be done in and about the premises as fully, to all intents and purposes, as the principal might or could do were he personally present, ratifying and confirming all that said attorney, Peter Huntsman, might lawfully do, or cause to be done, by virtue of the instrument.

It is contended by respondent that the document which we have quoted in part is not a general power of attorney, but is limited by tbe words, '“and particularly to act in my stead in so far as I am interested as an beir,” etc. Tbe contention is that inasmuch as tbe power of attorney was executed in 1875, ten years before Jacob Huntsman acquired tbe property, and that be acquired it by purchase and not as an beir, therefore tbe property in controversy was not included in tbe power of attorney. It appears, however, in tbe record that this property was originally owned by James Huntsman, the father of Jacob; that James Huntsman died in 1871; that at tbe time tbe power of attorney was executed, in 1875, tbe estate of James Huntsman bad not been administered, or at least tbe administration was not complete, for we find Gabriel Huntsman, as late as August, 1885, acting as administrator of tbe estate, so that whether or not it has any bearing upon the question to be determined it is deducible as a fact from tbe evidence that at tbe time tbe power of attorney was executed Jacob Huntsman stood in tbe relation of beir to this property. Tbe power of attorney when executed in all probability bad in contemplation tbe property in question.

There is, however, in our opinion, a fatal defect in the instrument as far as concerns the question presented here. The power to convey the property by gift, and for a nominal consideration, which in effect is the same thing, does not exist. It is not deducible from the language or manifest intent of the instrument. The language, “do make, constitute, and appoint Peter Huntsman, of Fillmore City, Millard county, Utah territory, my true and lawful attorney, for myself and in my name, place, and stead, and for my use and benefit,” is very far from conferring power to give the property away, or convey it for a mere nominal consideration. The acceptance of only two dollars as consideration for the deed to Fanny Allen, who was a daughter of Peter Huntsman, the attorney, can by no process of reasoning be construed a benefit to Jacob Huntsman, nor as. a compliance with the duty which Peter Huntsman owed to Jacob as his attorney 1 in fact. Whether Peter Huntsman intended to derive some benefit himself or confer a benefit upon bis

daughter makes no difference whatever. The taking of a benefit to himself or conferring it upon another person, and thereby depriving Jacob Huntsman thereof, was entirely beyond the scope of his authority. This appears upon the very face of the instrument itself, and when it was once recorded it was notice to all the world. Nor could Peter Huntsman derive title to the property by afterwards taking a deed from Fanny Allen. If he, under his power of attorney, could not give the property to her, she could not convey title to him, even if he had paid a substantial consideration therefor.

As to the authority of an attorney in fact, acting under a power conferred for the benefit of his principal, to make an absolute gift of the property, or convey it away without substantial consideration, we doubt if there is 2 any conflict whatever among the authorities. Meehem, Agency (2d Ed.) section 783,'states the doctrine as follows:

“A power of attorney given to an agent to act in the name and on behalf of his principal, though couched in general language, must, in the absence of anything showing a contrary intent, be construed as giving authority to act only in the separate, individual business of the principal and for his benefit. It cannot be construed as permitting the agent to engage in transactions foreign or repugnant to that business, or to • hind the principal by acts done, not for his benefit and in his behalf, but for the private benefit of the agent himself, or for other persons.”

In 21 R. C. L. p. 886, it is said:

“A conveyance under a power of attorney must he executed in pursuance of the power, and he within its terms; hence a power to sell does not authorize a gift of the property or a transfer of it for any purpose other than in completion of a sale.”

Tbe following cases are to the same effect: Rogers v. Tompkins (Tex. Civ. App.) 87 S. W. 379; Dupont v. Wertheman, 10 Cal. 354; Mott v. Smith, 16 Cal. 534.

In one of the headnotes to the last-mentioned case it is said:

“Where a power of attorney, relative to real estate, authorizes the agent ‘to grant, bargain, and sell the same, or any part or proportion thereof, for such sum or price, and on such terms as to him may seem meet,’ the agent has no power to make a conveyance in consideration of love and affection in the principal for the grantee in the conveyance, and such conveyance is on its face a nullity.”

See, also, the following eases: Wallace v. Branch Bank at Mobile, 1 Ala. 566; Hazeltine v. Miller, 44 Me. 177; Camden S. D. & T. Co. v. Abbott, 44 N. J. Law, 257; Platt v. Francis, 247 Mo. 296, 152 S. W. 332; Gulick v. Grover, 33 N. J. Law, 463, 97 Am. Dec. 728; Lewis v. Lewis, 203 Pa. 194, 52 Atl. 203; Stainback v. Read & Co., 11 Grat. (Va.) 281, 62 Am. Dec. 648; North River Bank v. Aymar, 3 Hill (N. Y.) 262; Adams Express Co. v. Trego, 35 Md. 47; Welke et al. v. Wackershauser, 143 Iowa, 107, 120 N. W. 77.

The conclusion above reached likewise disposes of the contention of Mrs. Huntsman that the property was awarded to her by decree of court in a divorce proceeding against her husband, Peter Huntsman, in July, 1916. If Peter Huntsman was not the owner of the property the decree of court attempting to award the title to her was a nullity. Another circumstance developed by the evidence is worthy of mention. Fanny Allen was never in possession of the property at all. The deed to her was executed November 15, 1897, and without entering into possession she reconveyed it to her father, Peter Huntsman, in 1898. Aside from the want of power in Peter Huntsman to 'convey the property without consideration, it is quite evident the transaction was never intended as a bona fide conveyance of the property. As to the alleged conveyance from Peter Huntsman to the defendant Mrs. Huntsman in 1908, there is a sharp conflict in the evidence as to whether or not the deed was ever delivered. In view, however, of what has been said, this question can be readily disposed of, even if it be conceded that the deed from Peter Huntsman to her was formally executed and delivered. No consideration was paid therefor for the benefit of Jacob Huntsman. As we read the record, the only consideration for the deed was -a past indebtedness owing by Peter Huntsman to her and the other defendants. Peter Huntsman had no more power to execute such a conveyance than he had to give the property to Fanny Allen. If we ai'e correct in thesé views, Mrs. Huntsman failed in the action to establish a record title to the property, and the title of the other defendants who claim under her has no basis upon which to stand. This leaves the record title of plaintiff, Willis Huntsman, clear and unimpeached.

But defendants contend that they are owners of the property by adverse possession since the year 1903. In their answer, among other things, defendants specifically deny that plaintiff is the owner of the property, or that the mortgage thereon is a cloud on plaintiff’s title, or that plaintiff has any title or interest whatever.

The paragraph by which they alleged title by adverse possession reads as follows:

“That the defendant Emma B. Huntsman and Peter Huntsman were legally married at Fillmore, Millard county, Utah, in the year 1903, and that as husband and wife said Emma B. Huntsman and Peter Huntsman, her husband, have been the owners of lots 3 and 4, in block 68, plat A. Fillmore City survey, in Millard county, Utah, claiming and holding the same under a claim of right and title adversely to all the world; that(since the year 1903 said defendants and their predecessors in title and interest have had the open, notorious, and exclusive possession, occupancy, and ownership of said property, and have paid all taxes and assessments levied upon or against said property, all under a claim of ownership and title to the same adversely to all the world.” )

Respondent interposes numerous objections to the sufficiency of the pleading:

(1) It is contended that the plea of adverse possession is not available unless accompanied by a plea that the action is barred by the statute of limitations. As we have shown, the defendants in their answer specifically denied 3 plaintiff’s ownership of the property. Having denied the ownership of plaintiff, they then proceed to allege title in themselves by adverse possession. We are of the opinion the pleading is not defective as far as this objection is concerned.

(2) The point is also made that the plea is defective because it says “since the year 1903,” etc., instead of “ever since,” etc. A fair and liberal construction of 4 the language with the view to giving effect to the intention of the pleader will hardly justify respondent’s contention. The criticism is too refined for the due administration of justice.

(3) It is also contended by respondent that the plea is defective in not alleging that defendants’ possession was continuous and uninterrupted. It was held in Winslow v. Winslow, 52 Ind. at page 8, that such allegation was essential. See, also, Colvin v. Burnett, 17 Wend. (N. Y.) 564. On the other hand, in Jackson v. Snodgrass, 140 Ala. 365, 37 South. 246, the court was of the opinion that where it is alleged that the possession was adverse the words “continuous” and “exclusive” need not be used. In the case at bar it is not only alleged that defendant claimed adversely to all the world, but also that their possession had been exclusive. It is difficult to conceive of an exclusive 5 possession during a given period of time which is not also continuous and uninterrupted. We do not believe that these views in essence materially conflict with the views of this court heretofore expressed in Larsen v. Onesite, 21 Utah, 38, 59 Pac. 234, and Coleman v. Hines, 24 Utah, 360, 67 Pac. 1122, cited by respondent.

Other objections are presented as to the sufficiency of the plea, but, as they are in no sense controlling, it is unneees-hary to devote time and space to their consideration. Assuming that defendants had exclusive, continuous, uninterrupted possession of the property under a claim of right and adverse to all the world from 1903 until the commencement of the action, still such possession would be of no 6 avail in establishing their title, unless they paid all taxes levied and assessed against the property during a period of seven years within the period above mentioned. Such is the established rule of this jurisdiction. Funk v. Anderson, 22 Utah, 238, 61 Pac. 1006; Dignan et al. v. Nelson et al., 26 Utah, 186 72 Pac. 936; Central Pacific Ry. Co. v. Tarpey, 51 Utah, 107, 168 Pac. 554, 1 A. L. R. 1319, and cases cited; Crane v. Judge, 30 Utah, 50, 83 Pac. 566.

The record not only discloses the fact that Peter Huntsman held the power of attorney from Jacob Pluntsman, his brother, concerning which much has been said in another connection, but it also shows quite conclusively that for many years prior to the alleged conveyance to Mrs. Huntsman he occupied the property in controversy as tenant of Jacob Huntsman under an arrangement by which he was to pay the taxes levied'and assessed against the property in lieu of rent. There is also evidence to the effect that Peter Huntsman paid said taxes each and every year prior to said alleged conveyance to Mrs. Huntsman, and that he also paid the taxes for some of the years after that date and prior to the commencement of this action in 1916. There is also evidence in the record that these taxes were paid for Jacob Huntsman under the arrangement to which reference has been made. The trial court found the above facts, and also found that the defendants had not paid the taxes on said property continuously during any period of seven years.

These findings are amply sustained by the evidence. In fact, it was admitted by Mrs. Huntsman herself that she paid none of the taxes at all in 1910, and only a small part of them in 1911. They were paid by Peter Huntsman, who testified that he paid them for his brother, Jacob Huntsman, in pursuance of the aforesaid arrangement.

Comp. Laws Utah 1917, section 6456, provides:

“In no case shall adverse possession be considered established under the provisions of any section of this Code, unless it shall he shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors have paid all taxes which have been levied and assessed upon such land according to law.”

It follows, therefore, that defendants did not acquire title by adverse possession.

We have not considered in detail the alleged errors relied on by appellants. There were thirty-two errors assigned, besides fourteen subdivisions charging insufficiency of the evidence. The principal error relied on was the striking out of all the deeds and transfers constituting defendant’s chain of title, commencing with the power of attorney from Jacob Huntsman. We are of the opinion that these documents were clearly inadmissible to prove title.

We find no error in the record. The judgment is affirmed, with costs.

CORFMAN, C. J., and FRICK, WEBER, and GIDEON, JJ., concur.