STRAUP, J.
In the complaint it is alleged that the plaintiff, Leonora W. Waddell, in July, 1904, was the owner of certain described real estate in Salt Lake City, that she then by deed conveyed it to the defendant, William M. Waddell, and that he thereafter without consideration conveyed it to his wife, Florence Waddell. It is further alleged that the deed from plaintiff to William was obtained without consideration, and was procured by fraud, false representations, and fraudulent promises, in this: In 1899 William was the owner of a tract of land in Idaho, and by deed conveyed it to Isaac M. Waddell, his' father, the then husband of plaintiff, but that the deed was not recorded'. Isaac M. Waddell died in December, 1902, leaving a last will and testament, by which he [571] bad devised all bis real and other property to plaintiff. Sbe was appointed executrix of bis estate. After tbe death of tbe deceased, William wrongfully and fraudulently took tbe deed of tbe Idaho property from among tbe papers of tbe deceased and destroyed it. Tbe plaintiff, not knowing of tbe destruction of tbe deed, requested William; to return it to her, which be refused to do. To avoid litigation to quiet title in herself, tbe plaintiff conveyed tbe Salt Lake City property to William, upon the agreement that be would return to her tbe deed of tbe Idaho property; but at that time William bad1 already destroyed tbe deed of tbe Idaho property, and bad no intention of returning it to the plaintiff, or otherwise to transfer or convey the Idaho property to her, but falsely and fraudulently made representations and promises so to do, to deceive and defraud her and to obtain tbe conveyance from her to him. Thereafter William sold tbe Idaho property, the record title of which was in bis name, for tbe sum of $2250, and converted tbe proceeds to bis own use, and failed to account to plaintiff therefor. William and bis wife took possession of tbe Salt Lake property, and improved it by building a dwelling upon it of tbe approximate value of $2500; but such improvements were miade with tbe knowledge of both defendants of tbe fraud and misrepresentations of William. Tbe relief asked was that tbe deed from tbe plaintiff to William be canceled, and that sbe be adjudged tbe owner of tbe Salt Lake property, or that, in tbe event of adjudged equities of the defendants, sbe be given a lien on it to tbe extent of its value, apart from tbe improvements.
To this complaint the defendants answered, admitting the conveyance from tbe plaintiff to William- and from him to bis wife; that William in 1899 was tbe owner of tbe Idaho property, and that be executed and delivered a deed conveying it to bis father, but that such deed was miade only for tbe purpose to enable bis father “to take and use tbe bay which said land produced,” and that bis father “never intended by receiving tbe deed to accept title to tbe land; and that prior to bis death his father redelivered tbe deed to” William “with tbe specific intent and for tbe purpose of - investing” William [572] “with tbe title, if in law be bad been divested of it.” Tbe defendants further alleged that William destroyed tbe deed so returned to bim by bis father, but that be did so in good faith and with tbe firm belief that be bad the legal and moral right so to do, and that be destroyed it prior to bis father's death. After tbe conveyance by plaintiff to William of tbe Salt Lake property, be sold tbe Idaho property for the sum of $2250, and paid no part thereof to plaintiff, except $435, which be averred was expended indirectly in improving tbe Salt Lake property. They further alleged that tbe defendant located tbe Idaho property as a homestead, and1 at bis father’s request and direction lived upon it, and for seven years or more improved it and other lands owned by bis father, “all of which property tbe said Isaac M. Waddell devised to tbe said plaintiff in bis last will and testament, and that she was made tbe sole devisee and' executrix, and that she, on tbe 2d day of July, 1904, of her own free will and choice, and without any promise or agreement on tbe part of William, and in consideration of a long-continued and valuable services which be bad rendered her and bis father, and of bis having materially assisted in tbe accumulation of tbe Idaho property, and in consideration of tbe relationship which existed between tbe plaintiff and William, and of love and affection, and in recognition of what she deemed her moral duty and obligation towards bim, and in recognition of what she considered this defendant was entitled to as a portion of tbe estate, tbe plaintiff, on the 2d day of July, 1904, executed and delivered to William a warranty deed to tbe Salt Lake property,” and that thereafter for a good and valuable consideration be conveyed it to bis wife, and that improvements of tbe value of $2700 were placed upon it by them.
Tbe ease was tried to tbe court, and resulted in findings of facts as alleged in the complaint, and not as alleged in tbe answer. A judgment was entered, giving tbe plaintiff “a specific lien for tbe sum of $560” on tbe Salt Lake property,. evidently tbe value of tbe lot .apart from the improvements. [573] From that judgment the defendants have prosecuted this appeal.
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STRAUP, J.
In the complaint it is alleged that the plaintiff, Leonora W. Waddell, in July, 1904, was the owner of certain described real estate in Salt Lake City, that she then by deed conveyed it to the defendant, William M. Waddell, and that he thereafter without consideration conveyed it to his wife, Florence Waddell. It is further alleged that the deed from plaintiff to William was obtained without consideration, and was procured by fraud, false representations, and fraudulent promises, in this: In 1899 William was the owner of a tract of land in Idaho, and by deed conveyed it to Isaac M. Waddell, his' father, the then husband of plaintiff, but that the deed was not recorded'. Isaac M. Waddell died in December, 1902, leaving a last will and testament, by which he [571] bad devised all bis real and other property to plaintiff. Sbe was appointed executrix of bis estate. After tbe death of tbe deceased, William wrongfully and fraudulently took tbe deed of tbe Idaho property from among tbe papers of tbe deceased and destroyed it. Tbe plaintiff, not knowing of tbe destruction of tbe deed, requested William; to return it to her, which be refused to do. To avoid litigation to quiet title in herself, tbe plaintiff conveyed tbe Salt Lake City property to William, upon the agreement that be would return to her tbe deed of tbe Idaho property; but at that time William bad1 already destroyed tbe deed of tbe Idaho property, and bad no intention of returning it to the plaintiff, or otherwise to transfer or convey the Idaho property to her, but falsely and fraudulently made representations and promises so to do, to deceive and defraud her and to obtain tbe conveyance from her to him. Thereafter William sold tbe Idaho property, the record title of which was in bis name, for tbe sum of $2250, and converted tbe proceeds to bis own use, and failed to account to plaintiff therefor. William and bis wife took possession of tbe Salt Lake property, and improved it by building a dwelling upon it of tbe approximate value of $2500; but such improvements were miade with tbe knowledge of both defendants of tbe fraud and misrepresentations of William. Tbe relief asked was that tbe deed from tbe plaintiff to William be canceled, and that sbe be adjudged tbe owner of tbe Salt Lake property, or that, in tbe event of adjudged equities of the defendants, sbe be given a lien on it to tbe extent of its value, apart from tbe improvements.
To this complaint the defendants answered, admitting the conveyance from tbe plaintiff to William- and from him to bis wife; that William in 1899 was tbe owner of tbe Idaho property, and that be executed and delivered a deed conveying it to bis father, but that such deed was miade only for tbe purpose to enable bis father “to take and use tbe bay which said land produced,” and that bis father “never intended by receiving tbe deed to accept title to tbe land; and that prior to bis death his father redelivered tbe deed to” William “with tbe specific intent and for tbe purpose of - investing” William [572] “with tbe title, if in law be bad been divested of it.” Tbe defendants further alleged that William destroyed tbe deed so returned to bim by bis father, but that be did so in good faith and with tbe firm belief that be bad the legal and moral right so to do, and that be destroyed it prior to bis father's death. After tbe conveyance by plaintiff to William of tbe Salt Lake property, be sold tbe Idaho property for the sum of $2250, and paid no part thereof to plaintiff, except $435, which be averred was expended indirectly in improving tbe Salt Lake property. They further alleged that tbe defendant located tbe Idaho property as a homestead, and1 at bis father’s request and direction lived upon it, and for seven years or more improved it and other lands owned by bis father, “all of which property tbe said Isaac M. Waddell devised to tbe said plaintiff in bis last will and testament, and that she was made tbe sole devisee and' executrix, and that she, on tbe 2d day of July, 1904, of her own free will and choice, and without any promise or agreement on tbe part of William, and in consideration of a long-continued and valuable services which be bad rendered her and bis father, and of bis having materially assisted in tbe accumulation of tbe Idaho property, and in consideration of tbe relationship which existed between tbe plaintiff and William, and of love and affection, and in recognition of what she deemed her moral duty and obligation towards bim, and in recognition of what she considered this defendant was entitled to as a portion of tbe estate, tbe plaintiff, on the 2d day of July, 1904, executed and delivered to William a warranty deed to tbe Salt Lake property,” and that thereafter for a good and valuable consideration be conveyed it to bis wife, and that improvements of tbe value of $2700 were placed upon it by them.
Tbe ease was tried to tbe court, and resulted in findings of facts as alleged in the complaint, and not as alleged in tbe answer. A judgment was entered, giving tbe plaintiff “a specific lien for tbe sum of $560” on tbe Salt Lake property,. evidently tbe value of tbe lot .apart from the improvements. [573] From that judgment the defendants have prosecuted this appeal.
Tbe principal question presented is this: . The plaintiff ■offered in evidence the complaint, answer, findings, and judgment in a prior action between the same parties. They were offered to prove material facts common to, and transactions involved in, both litigations. For that purpose they were admitted over the defendants’ objection. It is not claimed that the facts averred, found, and adjudged in the former action, and which were sought to be proved by that record, were not the same as are alleged and denied in this action; but it is urged that they were immaterial, and that therefore the evidence was improperly received. We think the evidence was proper. To show that, we need but refer to the nature of the pleadings, the findings, and the judgment of the former action. The allegations of facts with respect to William’s conduct in taking and abstracting the deed from the private papers of his father, the agreement under which the plaintiff conveyed the Salt Lake property to him in consideration of his returning the deed of the Idaho property to her, the conveyance made by her of the Salt Lake property to William in accordance with the agreement, the defendant’s refusal to return the deed and his destruction of it, his selling the Idaho property for $2250' and converting the proceeds to his own use, and his conveyance of the Salt Lake property to his wife without consideration, the matters chiefly sought to be shown by the former record, were in substance, the same in the former as in this complaint. But the theory of the former complaint was that the proceeds derived by William from the sale of the Idaho property and misap>-propriated by him were invested by him in the making of the improvements on the Salt Lake property, and in purchasing certain personal property, and hence all of such properties were sought to be impressed with a trust to the extent of $2250. The answer of the defendants in the former case was similar to their answer in this. The former- ease was before us on appeal, and is reported in Waddell v. Waddell, 36 Utah, [574]*574437, 104 Pac. 743. There the issues and facts of that ease appear. We there held that William had no right to or interest in the Idaho property; that he wrongfully came into possession of the deed which he had made to his father; that the plaintiff, to avoid litigation, conveyed the S'alt Lake property to him, upon the agreement that he return to her the deed of the Idaho property; that after the conveyance of the plaintiff to him he refused to do so; that he “tore up the deed of the Idaho property to destroy evidence of title and to defraud the estate, and fraudulently sold the Idaho property and misappropriated the proceeds to his own use.” We thereupon directed the trial court to make findings in accordance with the views expressed by us, and to enter a judgment in favor of the “plaintiff for the $2250' trust fund and interest,” to adjudge it a lien on the Salt Lake property to the extent of $351.67, that being the only amount of the proceeds derived from the sale of the Idaho property that the record there disclosed was invested in the Salt Lake property, and a lien to the extent of $840 on certain personal property. Such findings of facts in detail, and as were averred in that and as are averred in this complaint, were made, and such a judgment entered. Upon the issues, and upon a reading of the opinion in the former action, it very clearly appears that the facts so alleged) and found in the prior action were material, and hence the record was properly received in evidence in this proceeding for the purposes mentioned.
The judgment of the court below is therefore affirmed, with costs.
FRICK, O. L, and McCARTY, J., concur.