Whittemore v. Cope

40 P. 256, 11 Utah 344, 40 P.R. 256, 1895 Utah LEXIS 64

• Court: Utah Supreme Court
• Decided: April 27, 1895
• Docket: No. 530
• Status: Published

Opinion

KING, J.:

Plaintiff avers in his complaint that one Thomas H. Cope died intestate in 1864, and at the time of his death was the owner of lot 5, block 3, plat CiB,” Salt Lake City, and lot 16, block 18, Big Field survey; that said lots were distributed by a decree of the district court to thp defendants Thomas H. Cope and George H. Cope, as lis sole surviving heirs; that, prior to the distribution, Thomas H. Cope, claiming to be sole heir, sold lot 16 to •one Thomas Jack, through whom defendants Mary Ann Jack and B. S. Young claim title; that defendant Thomas H. Cope is the owner of an undivided one-half part of •said lot 5, and defendants Jack and Young are owners of •an undivided half of lot 16. Plaintiff further alleges that he and George H. Cope are each the owners of an undivided one-fourth of said lots, and that, if Jack and Young •are entitled to all of lot 16, they are entitled to their full share of the estate out of lot 5. Partition is prayed for according to the rights of the parties. George H. Cope answered, admitting the allegations of the complaint to be true, and asked for partition. The other defendants answered, and denied specifically complainant’s averments, •except as to the death of Thomas Cope, and pleaded the statute of limitations, and at the same time filed a cross ■complaint. They there allege that Thomas H. Cope is the owner in fee and in the possession of said lot 5, and Mary Ann Jack is in the possession and the owner in fee of the north three acres of said lot 16, and B. S. Young is the owner in fee and in the possession of the south two acres of said lot; that in 1864 said Thomas Cope had a possessory right only to said lots, and to lot 2, block 14, and lot 4, block 3, in Salt Lake City; that in said year he died, having no title to said land, and said Thomas H. Cope, George H. Cope, Janet Cope, and Margaret Cope claimed to be his only heirs; and that in 1867 an oral partition was made, which was fair and •equitable in all respects; and it was so agreed (and partitioned accordingly) that Janet should own lot 5, Margaret lot 4, Thomas H. lot 16, and George H. lot 2; that, in pursuance of said agreement and partition, each person took possession of the lot set apart to him or her, and held sole possession of the same under the partition, and ever after each of said persons claimed only the parcel of land so. partitioned to him or her, and claimed the exclusive right, title, and possession thereto, free and clear of any other person; that, since said partition, several possession has been held thereunder, and it has been acquiesced in and ratified by the parties thereto; that said lot 5 was conveyed by the United States to the mayor of Salt Lake City, in trust, and by said mayor was conveyed to Thomas Jack, as administrator of the estate of Thomas. Cope, deceased, in trust for his heirs, and thereafter said administrator duly conveyed said lot by deed to Janet Cope and Thomas H. Cope, the latter being named as one-of the grantees, at the request of Janet; that in 1891 Janet Cope died testate, Thomas BE. being devisee of said, lot 5, and her will was duly admitted to probate; that,, from the time of said partition to her death, she held sole and exclusive possession of said lot 5, and since 1883 has. paid all of the taxes thereon, and greatly improved it, and said Thomas H., from the proceeds resulting from the-sale of lot 16, and with her acquiescence and consent, constructed a house on her lot; that said devisee, since her death,, has held sole and exclusive possession thereof, and has paid all taxes thereon; that one Conk, patentee of the greater part of lot 16, in recognition of said partition, conveyed said part to Thomas IL, and by mesne conveyances the remainder, of said lot 16 was conveyed to him; that in 1884 lot 16-was sold by Thomas H. to Thomas Jack, and in 1885, by decree of the district court, the latter’s interest was vested in defendant Mary Ann Jack, who conveyed in 188? the-two south acres to William Leggett, and he sold the same-in 1890 to defendant B. S. Young; that valuable improvements and houses have been erected on lot 16 by said persons.

The complaint then alleges adverse possession of lots 5 and 16; that said Margaret Cope never questioned, nor does she now, the validity of said partition; that by reason of the same, and the ownership acquired thereunder, she sold and conveyed said lot 4, appropriating the proceed» to her exclusive use; that her son, said George H. Cope, with full knowledge of said partition, the holding in sev-eralty thereunder, the conveyance by his mother, and the improvements placed upon lots 5 and 16, and their great increase in value, in 1888 conveyed all of said lot 2 by warranty deed to one Showell, and appropriated the whole of the purchase price, and this was done by reason of the ownership acquired by him under said partition, which ■it is alleged was never questioned until the bringing of this suit; that said lots so conveyed by Margaret and George H. are beyond the reach of said persons claiming to be heirs of said deceased, and the grantees have good and valid titles thereto; that in 1890 said George H. attempted to convey an undivided one-fourth interest in said lots 5 and 16 to plaintiff, and that at the time of taking the conveyance he knew of all of the facts connected with, the partition; that no consideration was paid by the plaintiff, but it is averred that he agreed to bring suit for the recovery of a portion of said lots, and to pay the costs of the action in consideration of said conveyance. Defendants prayed that the title to lot 5 be quieted and decreed to be in fee in Thomas H. Cope, and that the title to lot 16 be quieted and decreed to be in the other defendants. The cause was tried before a referee whose findings of fact were in harmony with the cross complaint. He not only found that a parol partition had been made, but also that the plea of the statute of limitations was well taken. A decree was duly entered by the trial court, based upon the referee's report, and from the judgment of the court plaintiff and defendant George H. appeal. After the appeal had been perfected, the •appellants stipulated in writing that the appeal, so far as it affected lot 16, should be dismissed, and the judgment of the district court relating thereto affirmed. Appellants have assigned numerous errors, but concede, in their brief, that the only questions for determination are embraced within the following interrogatories: (1) Did Janet Cope hold lot 5 adversely? (2) Is a parol partition of lands valid, and was the deposition, of the witness Moon (offered to prove the partition) admissible? (3) Did the parties acquiesce in and ratify the parol partition (if made)?

We will first consider the points involved in the second question. Appellants contend that a parol partition of lands is within the statute of frauds, and therefore invalid. Section 2831, Comp. Laws Utah, provides “ that no estate or interest in lands, * * * nor any trust or power relating thereto, shall hereafter be created, granted, assigned; surrendered or declared unless by act or operation of law or by deed of conveyance in writing subscribed by the party, ” ■etc. In support of the appellants’ contention, 1 Washb. Deal Prop., and Browne, St. Frauds, are cited. In the first-named work it is stated that no parol partition can be effectual unless accompanied by deeds from one coten-.ant to the other, inasmuch as the statute of frauds applies fio such cases. If this means that no rights can be acquired by coparcenei’s either in equity or law under a pa-rol partition, when they have followed the partition by actual possession in severalty, we cannot assent to the doctrine. Undoubtedly, this view has been entertained by the English courts, and many of the American courts, as well as text writers of respectability; but we think the •better rule to be the one which is most equitable, viz: -“That a parol partition, carried out and followed by .actual possession in severalty of the several parcels, is •valid, and will be enforced, notwithstanding the statute of frauds, on the theory that it has been removed from its operation by part performance." 17 Am. & Eng. Enc. Law, p. 668, and cases cited; Freem. Coten. § 402; Tomlin v. Hilyard, 43 Ill. 300; Ebert v. Wood, 1 Bin. 216; Welchel v. Thompson, 39 Ga. 559; McMahan v. McMahan, 13 Pa. St. 376; Ayers v. Jack, 7 Utah, 249, 26 Pac. 300. “ While the legal title might not, perhaps, be •considered as passing by a parol partition, unless after a possession sufficiently long to justify the presumption of a •deed, yet the parol partition, followed by several possession, would leave each cotenant seized of the legal title to one-half of his allotment, and the equitable title to the ■other half, and, by a bill in chancery, could compel from his cotenant a conveyance of the legal title according to the terms of ' the partition.” Tomlin v. Hilyard, 43 Ill. 302.

In the case of Ayers v. Jack, supra, the oral partition of lands herein described was sustained. After Thomas H. had disposed of his lot (16) to Jack, Ayers and others thought they discovered a defect in the purchaser’s title, and obtained a deed from Thomas H. and his wife and ■Janet for the same parcel of land. They were told: “They took all the chances of the purchaser;” and it .appears the grantors made no claim to the land. Suit was brought, and the defendants set up an equitable title, .relying upon the oral partition. The court held that the. “ equitable title ought to be protected and enforced, and that the plaintiffs, having bought with knowledge of the defendant’s rights, can take nothing by their deed.” Notwithstanding the statute of frauds, it is not regarded .as an insuperable objection to the maintenance of an equitable defense by a purchaser of land .under a parol sale. Possession taken under the contract of sale takes the case out of the statute. There seems to be no good reason why this doctrine should not apply to parol partitions. Where possession, actual and exclusive in its character, is-taken under the partition, and is followed by all the-indicia of ownership, we think 'such a title is initiated as will receive equitable cognizance. To enforce this rule prevents the possible perpetration of a fraud and wrongby one cotenant upon the others, when the latter acting-in good faith upon the partition, have added improvements to their several parcels, the law being that “ actual-occupancy is enough to put parties dealing with the premises upon inquiry, * * * and that a person at his-peril deals with 'or purchases real estate of one in the-possession of another.” Toland v. Corey, 6 Utah, 395, 24 Pac. 190. No hardship is imposed upon third persons.

We think there is an analogy between cases where it is sought to enforce a parol partition and those which receive equitable cognizance growing out of a parol sale of lands. The burden will rest upon the party affirming the-existence of the oral contract of sale, and also who claims-under the parol partition; and equitable relief should only be granted in the latter case when the partition is equitable, and when the parties act understandingly. But it is argued by the appellants’ counsel that at the time of the alleged partition, in 1867, the two sons of the deceased were minors, and not only did not participate in the partition proceedings, but, owing to their tender years, were-unable to comprehend their rights or the nature of a partition, even if explained to them. This feature of the case was presented to the court in Ayers v. Jack, supra, as shown by the record; and, while there is no reference-to it in the opinion, it is clear the court did not deem it. objectionable to the partition, under the facts of the case. We have no hesitancy in saying that upon attaining their majority, and after a full understanding of their rights and the partition previously made, if there was no ratification and confirmation of the partition by them, it. ■would be invalid. But words were not indispensable to a ratification of the partition; affirmance might result from -acts and conduct. If George H. and Thomas H., upon reaching their majority, knowing the circumstances of the partition, retained their possession of the land therefore .set apart to them, claimed it as their own, asserted no -claim whatever to the other lands occupied by the persons who had been their cotenants, enjoyed the fruits thereof, .and exercised dominion over it, we think the oral partition is binding upon them. They cannot be heard in ■disaffirmance of the partition; they are conclusively presumed to have ratified the partition, and the rights of the various parties to the partition and their title to the land would relate back and attach as of the date of the partition. Freem. Coten. § 414; Lynch v. Baxter, 4 Tex. 431; Wood v. Fleet, 36 N. Y. 499. It would be inequitable to ■permit a repudiation of the partition where these facts ■ exist, especially if the status of the property partitioned is changed, or rights have been acquired under a recognition of its validity. The evidence in the case, at bar is ■that Margaret sold her lot, and enjoyed all the proceeds. George H. did the same. Thomas H. employed a portion •of the proceeds arising from the sale of the lot 16 in improving Janet’s lot. The lots conveyed are beyond the -control of the parties to the partition, and it would be .against equity and good conscience to now divide Janet’s portion, which was devised to Thomas H. While there is ■some conflict in the testimony as to whether George H. fully understood the parol partition, and ratified it, a care.ful examination of the record convinces us that the record was sufficient to warrant the findings of the referee upon •.that point.

2. Was a partition made, and, if so, did the parties acquiesce in and ratify it? Thomas Cope died in 1864. .His family consisted of his legal wife, Janet, Thomas n., a son of a deceased wife, Margaret, a polygamous wife, and George H., her son. Janet resided on lot 5, with her stepson, Thomas H., and Margaret and her son resided on lot 4. About three years after the death of Thomas. Cope, the wives, owing to disagreements respecting the-property, selected three persons to partition it among them and the two sons. While Margaret was not entitled to-receive anything, it was desired that the property should be equally divided among the four. At that time Thomas.o H. was about 14 years of age, and George H., 4 years. Four lots had been left by the deceased (worth about $500-each), but his only title was that of naked possession. A. partition was made by the persons selected, which appears, to have been equitable and just. It was reduced to writing, but subsequently lost. Under the partition, Janet, was given lot 5, upon which she was residing, Margaret lot 4, Thomas H. lot 16, and George H. lot 2. Thereafter the lots were known by the names of the persons receiving them. Janet resided upon her lot until her-death, in 1890, and devised it to Thomas H. She greatly improved it, claimed it as her own, paid all the taxes assessed against it; and after 1883, Thomas H. took possession of lot 16, claimed it as his own, and finally, in 1884,. sold it to Thomas Jack, who, in part payment therefor, and at the request of Thomas H., constructed a house-upon lot 5 for Janet. After her death, Thomas H. took possession of lot 5, and held exclusive and adverse possession up to the time of the bringing of this suit. Margaret held exclusive possession of lot 4, paying the taxes, thereon, and claiming it as her own, until she sold it, appropriating all the proceeds to her own use. Her son, George H., knew of her claim and the sale. She received the rents derived from lot 2 until George H. reached the age-of J.7 or 18 years. He then took possession of the lot, .claimed it as his own, obtained the crops growing thereon, paid the taxes assessed against it, and finally sold and conveyed it by general warranty deed, for the sum of $1,250. He retained the entire proceeds. No claim, so far as is shown by the record, was made by any other members of the family to the lot or any of the purchase, price.

We think the evidence is sufficiently definite and certain, to justify the finding that a parol partition was made, and that all parties acquiesced therein; and it was not error to admit the deposition of the witness Moon, who was one of the persons selected to partition the property, and whose-testimony was confined solely to the question of partition.. After ascertaining the facts regarding the partition, and several years after becoming of age, George H. conveyed his lot. His conveyance under the circumstances, and the-appropriation of the proceeds, not only ratified the partition made during his minority, but, if anything was lack- . ing upon his part to complete it, operated to complete the-partition and render it binding. Eaton v. Tallmadge, 24 Wis. 217; Buzzell v. Gallagher, 28 Wis. 678; Millican v. Millican, 24 Tex. 426; Markoe v. Wakeman, 107 Ill. 251 v. Jackson v. Richtmyer, 13 Johns. 375; White v. Clapp, 8 Metc. (Mass.) 370; Piatt v. Hubbell, 5 Ohio, 243. As. above stated, this court, in Ayres v. Jack, has sustained this parol partition, and the facts developed in the case at. bar seem to have been fully presented upon the trial of that cause. While that case is not res judicata, it seems, the doctrine of stare decisis ought to be invoked, especially when there is nothing manifestly erroneous in the decision. Hpon principles of judicial propriety, as well as the importance of having the law fixed and certain, a court ought to respect its own decisions; and in analogous cases there would seem to be the greater reason for adhering to them, where the facts are the same, though between different parties. Kolb v. Swann, 68 Md. 516, 13 Atl. 379; 2 Black, Judgm. § 603. Plaintiff does not claim to be an innocent purchaser for value,, or to have been misled by defendants. In fact., the record shows he had full knowledge of the partition. He is a practicing attorney and had purchased and sold lot 2, knowing that the title came through George H. and the parol partition. He advised persons that, because of the oral partition and the statute of limitations, the title to lot 2 was good; that they would be safe in building valuable houses thereon; and that he was employed to defend the title if it were attacked. It appears that his present interest was acquired for services in bringing this suit. His relation to the case is not such as to commend him to a court of justice.

It is insisted by counsel for appellants that Janet’s possession could not be adverse in its character, because the lot was the homestead of her deceased husband, and she ■held a life interest therein. In 1868 the land laws of the United States were extended over Utah, and the mayor’s ■entry was made in November, 1871. Lot 5 was included in the land actually settled on and occupied as a town, ■and was reserved from a private sale, and no title to it could be acquired: except under the townsite act of 1867 and the laws of Utah passed in pursuance thereof. Thomas Cope had no estate whatever in said lot, not even an inchoate right. He could not devise it and give title, and it would not pass to his heirs. No interest that he possessed could be the foundation upon which to predicate a homestead title, and out of his naked possession no estates in life or remainder could be carved. Buxton v. Traver, 130 U. S. 232, 9 Supt. Ct. 509; Missionary Soc. of M. E. Church v. Dalles City, 107 U. S. 336-345, 2 Supt. Ct. 672. We do not mean to hold that a homestead can only be based on a title. In the case at bar, after Cope’s death, the possessory title vested in another, and no homestead could exist upon the creation of a new title. Wap. Homest. pp. 102-109; Myrick v. Bill (Dak.), 17 N. W. 268. But, admitting that a homestead did exist, we “think this would not preclude a parol partition, which would change the holding, and invest it with a different ■character.

It is argued that this was no change in the' character ■of Janet’s holding; that, having held as the wife of the deceased, the presumption is that she continued as a life tenant until there was an actual disseisin. After partition of the land, each owned in severalty an interest equal to that which before had been held in common, and a new possession is not essential. It need not be taken in pursuance of the partition; for as all the cotenants are in possession at and prior to the partition, there need not be any new taking of possession. It is sufficient that, after the agreement for partition, each retains possession -of and exclusively occupies that tract set apart to him by such agreement. Freem. Coten. p. 516; Hauk v. McComas, 98 Ind. 460.

It is contended that the proceedings in the probate court negative the idea of a partition, and conclusively establish that both" Janet and Thomas H. claimed only by descent. This issue was presented by the pleadings, and found adversely to plaintiff, and we think the evidence justifies the finding. Besides, the probate court only declares the lights of the heirs under the law of succession. Chever v. Ching Hong Poy, 82 Cal. 68, 22 Pac. 1081. And in this •case Thomas Cope had no property subject to administration. The fact that the mayor’s deed to lot 5 named the administrator as grantee does not alter the situation. The administrator held the title to lot 5 in trust, and the probate court had no jurisdiction to distribute. Buxton v. Tracer, 130 U. S. 232, 9 Sup. Ct. 509; Burns v. Hamilton, 33 Ala. 210; Cobb v. Stewart, 83 Am. Dec. 467; Coulson v. Wing, 42 Kan. 507, 22 Pac. 570; Delay v. Chapman, 3 Or. 459. The conveyance to the administrator was a dry trust, and executed in the heirs immediately. Kay v. Scates, 78 Am. Dec. 399. And, a partition having been effected, the administrator would hold the title-in trust for the cotenants to whom it was partitioned. Considerable importance was attached by appellants to the conduct of Thomas H. in executing a conveyance to Ayres-of lot 16, after selling it to Jack. This question was fully considered in the case of Ayres v. Jack, and demands no-further attention.

It is contended by appellants that the proceedings in the probate and district courts, the petitions filed and reports made, are incompatible with the theory that there was a partition, and conclusively disprove it. While there-is some foundation for their view, the record shows that evidence was introduced which tends to explain-the seeming incongruities, and support the respondents’ position that the parol partition was recognized by all, and became-the basis of acquired rights; and, the referee having taken this view, we feel there is no occasion or warrant for disturbing his findings. We find no error in the record, and affirm the judgment, with costs.

Bartoh and Smith, JJ., concur.