Holbrook v. Carter

SORENSEN, District Judge:

Action to quiet title. The case was submitted to the trial court on stipulated facts.

Pender, Eliason and defendants acquired title in 1949 from Salt Lake County by auditor’s tax deed. The stipulation recites that in 1951 Pender, by quitclaim deed, conveyed “his interest” to plaintiffs and also in 1951 Eliason, by quitclaim deed, conveyed “her interest” to plaintiffs.

Plaintiffs then went into possession, fenced and farmed the premises, paid taxes thereon, and in 1965 brought this action to quiet title as against the record title holder and defendants, on the theory of advérse possession under color of title for the statutory period. Defendants counterclaimed for an accounting of rentals and partition, on the ground that plaintiffs, by acquiring Pender’s and Eliason’s interests, became co-tenants with defendants, and, because this creates a fiduciary relationship between the parties, plaintiffs cannot acquire defendants’ interests by adverse user.¹ Tiie'. trial court entered judgment quieting title in plaintiffs. Defendants, but not the record title holders, appeal.

The general rule of law would appear to be “that, where one of several co-tenants conveys the joint estate by an instrument purporting to vest the fee to the entire property in a grantee who is not a co-tenant, and the latter enters, asserting open and exclusive ownership thereof, in severalty, the co-tenant not participating in the conveyance is deemed to be ousted, and, on the termination of the statutory period, title by adverse possession becomes vested in the grantee.” ² This would appear to be so without regard to whether conveyance is by warranty or quitclaim deed.³

However, when the granting co-tenant conveys only his interest in the land, the grantee succeeds only to the grantor’s position as a co-tenant; there is not color of title in the grantee to the entire fee, and hence no ouster sufficient to support adverse user.⁴

The Pender and Eliason deeds to plaintiffs are not in the record. The stipulation recites that each purported to convey “his (her) interest” in the land. This does not create sufficient color of title under a written instrument to support plaintiffs’ position that there was a constructive ouster. Without canvassing the remaining facts, we hold that they are not sufficient, absent color of title in plaintiffs, to “bring home” to defendants by open, notorious and hostile acts that plaintiffs intended to exclude rights of the defendants.⁵

In their brief and on oral argument plaintiffs urged that we take judicial notice of instruments, not in the record before us, purporting to be filed for record with the Salt Lake County recorder. This we cannot do. The authorities relied on by plaintiffs⁶ hold merely that courts take judicial notice of official acts and proceedings of certain public officials, and the Legislature has so provided.⁷ The Legislature has also dealt with the manner of proof of facts recited in entries made in the official records of county recorders,⁸ but it has not made such facts a matter of judicial knowledge, nor do we.

Reversed, with directions to proceed with remaining issues raised in the pleadings, costs to the appellants.

TUCKETT, J., concurs.

1 . Relying on Heiselt v. Heiselt, 10 Utah 2d 126, 349 P.2d 175; Sperry v. Tolley, 114 Utah 303, 199 P.2d 542, and cases therein cited.

2 . Annotation, 32 A.L.R.2d 1214, 1216.

3 . Morrison v. Hawksett et al. (N.D.), 64 N.W.2d 786.

4 . Annotation, 32 A.L.R.2d 1214, 1219.

5 . Heiselt v. Heiselt, supra.

6 . State Board of Land Commissioners et al. v. Ririe, 56 Utah 213, 190 P. 59; Mc-Garry v. Thompson, 114 Utah 442, 201 P.2d 288.

7 . 78-25-1(3), U.C.A.1953.

8 . 78-25-3, U.C.A.1953.