Powell v. Bastian

541 P.2d 1127, 1975 Utah LEXIS 785

• Court: Utah Supreme Court
• Decided: October 28, 1975
• Docket: No. 13939
• Status: Published

Opinions

ELLETT, Justice:

Mrs. Powell owned a home on which there were two mortgages. There were also a judgment lien and a warrant for delinquent taxes due to the State of Utah. In all, the place was encumbered in an amount of approximately $13,000. The holder of the second mortgage threatened to foreclose because payments thereon were delinquent. Mrs. Powell tried to borrow money from Mr. Bastían, who understandably refused to make a loan. He did offer to purchase the property for $16,000, less the encumbrances, and to give Mrs. Powell an option to repurchase within three months for $18,000, plus interest, on the money advanced.

Mrs. Powell deeded the property to Mr. Bastían, who gave her $3,055.34, the balance remaining out of the $16,000 purchase price after deducting the amount of the encumbrances.

Mrs. Powell tried to find a purchaser so that she could exercise her option to rebuy the home. Ultimately she listed the property with Boley Realty Company, and it was placed on the multiple listing service in Utah County.

Mr. Sharp, a broker, connected with the multiple listing service, but not with Boley Realty Company, located a prospective purchaser and prepared, on behalf of the purchaser, an earnest money offer which he presented to Mrs. Powell. Mrs. Powell accepted the offer to purchase hut told Mr. Sharp that she had sold the property to a Mr. Bastían and that Sharp would have to secure his signature to the offer. She did not disclose the fact that she had an option to repurchase the property or that she claimed any interest in it.

Sharp then obtained Bastian’s signature and arranged financing for his client through Prudential Federal Savings & Loan Association. At no time did Mr. Sharp have any reason to think that he represented Mrs. Powell. His client was the purchaser of the home from Bastían. He knew nothing about the relationship between Mrs. Powell and Mr. Bastían until several months later when Mrs. Powell took out bankruptcy¹ and he got several letters from her lawyer.

Prudential Federal Savings & Loan Association financed the purchase of the house from Mr. Bastían and distributed the funds according to the directions of the purchaser and Bastían. It was directed to pay to Mrs. Powell the surplus money remaining from the sale.

This suit was brought and the appeal taken because Mrs. Powell is unwilling for Bastían to get his $18,000, the sum which was to be paid him under the option agreement.

There is no record of the proceedings at trial before us, and we, therefore, assume the findings made by the trial judge are supported by the evidence given.² In fact, counsel for Mrs. Powell states in his brief: “The facts are set forth in the amended complaint and are substantially the same as the facts found in the trial court’s findings of fact.”

The findings made by the court contain the following:

* * * * * *

3. On the 17th day of June, 1970, plaintiff approached the defendant Dick E. Bastían and offered to sell her property to him for the sum of $16,000 provided that she could have an option for three months to repurchase the property in accordance with the provisions of an option agreement, Exhibit 2. Prior to offering to sell the property to the defendant Dick E. Bastían, plaintiff had requested the defendant Dick E. Bastían to make a loan to her. The defendant Dick E. Bastían had declined to make a loan to the plaintiff but did offer to purchase the above described real property.

10. The court finds that the plaintiff Powell testified at all times that her arrangement with the defendant Bastían was one by terms of which she had an option to repurchase the property for a three month period. The court finds that there is no instance in the record in which the transaction between the plaintiff Powell and the defendant Bastían was characterized as anything other than as a sale to Mr. Bastían with an option on the part of Mrs. Powell to repurchase the property.

Mrs. Powell argues that the selling costs should be taken out of the $18,000. She did not exercise the option within 90 days; or at all, and so really was not entitled to anything. However, Mr. Bastían treated the sale as if it were the exercise of the option and gave Mrs. Powell everything above the amount he claimed pursuant to the option agreement.

Since Mr. Bastían was obligated to furnish title insurance or an abstract to date to Mrs. Powell if she exercised the option, the trial court correctly gave her judgment for the cost of title insurance in the amount of $119, and charged that against Mr. Bastian’s $18,000. The trial court also gave her judgment for the sum of $228.33 for taxes with which she had been charged in the sale to Mr. Bastían.

Prudential Federal Savings & Loan Association was dismissed from the case on a motion for summary judgment. It knew nothing of Mrs. Powell’s claims and so was properly let out of the case.

Mr. Sharp, the realtor representing the purchaser, is entitled to his fee through the multiple listing service, and then Mr. Bastían should get his $18,000 less the cost of title insurance and taxes, and the balance should be given to Mrs. Powell.

We think Mrs. Powell was dealt with fairly and correctly by the trial court. The judgment is hereby affirmed. Costs are awarded to the respondents.

HENRIOD, C. J., and CROCKETT, J., concur.

1 . The trustee in bankruptcy was a party to this matter at trial but refused to participate in the appeal.

2 . Buchanan v. Crites, 106 Utah 428, 431, 150 P.2d 100 (1944); O'Gorman, v. Utah Realty & Construction Co., et al., 102 Utah 523, 129 P.2d 981 (1942); Walker Bank & Trust Co. v. Neilson, 26 Utah 2d 383, 385, 490 P.2d 328 (1971).