Crockett v. Nish Et Ux.

147 P.2d 853, 106 Utah 241, 1944 Utah LEXIS 18

• Court: Utah Supreme Court
• Decided: April 6, 1944
• Docket: No. 6666.
• Status: Published

Opinions

WOLFE, Chief Justice.

'Suit in equity to have a deed, absolute in form, declared to be a mortgage. Defendant, Stanley Nish, filed a disclaimer. Defendant Alice E. Nish filed a counter-claim for a decree quieting title in her. The court entered a decree quieting title in defendant Alice E. Nish and the plaintiff appealed.

Since this is a suit in equity, it is our duty under Art. VIII, Sec. 9 of the Constitution, to review the facts. In examining the transcript to determine what our conclusions from the evidence will be we are to make an independent analysis of it. If at the end of that investigation we are in doubt or even if there be a slight preponderance in our minds against the trial court’s conclusions we will affirm. The reason for this is well stated in Zuniga v. Evans, 87 Utah 198, 48 P. 2d 513, 520, 101 A. L. R. 532, as follows:

“The trial judge had a better opportunity from seeing and hearing the witness than we have from merely reading the transcript to appraise his credibility and to determine what weight should be given to his testimony. The opinion of the trial judge is therefore entitled to some weight with us.”

See also Stanley v. Stanley, 97 Utah 520, 94 P. 2d 465.

Such an examination has been made of the transcript herein. From it we arrive at the following conclusions regarding the facts: The plaintiff is the duly appointed and qualified administrator of the estate of one Jane Nish, deceased. At the time of her death, the said Jane Nish had legal title to two tracts of land, one of which is the subject matter of this suit. Both tracts were mortgaged to one Charles E. Fleming. After the death of the said Jane Nish, Fleming instituted proceedings to foreclose his mortgage. Judgment of foreclosure was entered and the property was sold to Fleming.

After the foreclosure but before the period of the option had expired, Malcolm W. Nish, husband of Jane Nish, and some of the children attempted to borrow sufficient money to redeem the land. For various reasons defendant Stanley Nish was the only applicant who could qualify for the loan. His application was approved, but the loan was never consummated. The period of redemption was allowed to expire. After title vested in Fleming, the various heirs of the Jane Nish Estate, who were still in possession of the property, entered into further negotiations with Fleming to re-acquire title to- the land. The father, Malcolm Nish, was apparently considerably disturbed over the prospects of moving from the home in which he had lived for many years. Consequently he and his son Frank induced defendant Alice Nish to send $790 to purchase this property from Fleming and pay taxes which were due on it. The name Alice Nish was filled in as grantee of the deed from Fleming and the deed was recorded. The father was permitted to use and occupy the premises until his death in 1938.

From the above we must conclude that the estate of Jane Nish lost title to the property by the foreclosure sale and the failure to redeem within the time prescribed by law. Title vested absolutely in Fleming. The purchase of the land from Fleming could not be considered a re-demption. Unless the estate of Jane Nish acquired an interest in this property by virtue of this purchase it now has no interest and the trial court correctly entered a decree quieting title against said estate and all persons claiming through it. The only theory upon which it could be held that the estate did acquire a new interest in this property by the purchase from Fleming would be that it borrowed the money from Alice Nish and that the deed issued to her to secure the loan. This theory finds no support in the evidence.

Crockett, the administrator of the Jane Nish estate, did not enter into the transaction at all. Malcolm Nish received the money from Alice Nish. There is nothing to indicate that he was acting for the estate of Jane Nish. Had the property been insufficient to repay the $790 it is clear that no deficiency judgment could have been obtained against the estate of Jane Nish. No one who had any authority to bind the Jane Nish estate was involved-in the transaction to procure the money from Alice. If the transaction between Alice and Malcolm is to be considered a loan to anyone, it must be treated as a loan to Malcolm. The trial court correctly refused to make any finding as to the nature of this transaction between Malcolm and Alice because Malcolm, being deceased, was not a party to the suit nor was his estate represented. His estate could not have been bound by any judgment entered herein.

The advancement of the $790 to Malcolm Nish cannot be considered to have been a loan to the Jane Nish estate. The trial court correctly refused, therefore to construe the deed to Alice Nish as a mortgage by the Jane Nish estate. The decree quieting title against the J ane Nish estate and against all persons claiming through the said estate was properly entered. Judgment affirmed. Costs to respondents.

LARSON and McDONOUGH, JJ., concur.