Wilson v. Schneiter's Riverside Golf Course

523 P.2d 1226, 1974 Utah LEXIS 573

• Court: Utah Supreme Court
• Decided: June 28, 1974
• Docket: 13494
• Status: Published

Opinions

TUCKETT, Justice:

The plaintiffs initiated these proceedings in the district court seeking a decree quieting their title to certain land in Weber County. The defendant counterclaimed praying that the title to the disputed area be quieted in it. The trial court found the issues in favor of the defendant and ordered the title be quieted in the defendant. The plaintiffs are here seeking a reversal.

On March 19, 1965, the plaintiffs entered into a real estate contract with one Lillie Sherwood whereby they agreed to purchase a tract of unoccupied land. The contract and a warranty deed were deposited with an escrow. On April 9, 1965, the plaintiffs recorded a notice of their purchase in the County Recorder’s office.

The defendant had entered into a real estate contract with Lillie Sherwood whereby they undertook to purchase a tract of land adjacent to that involved in the Wilsons’ contract. There was an overlap in the descriptions of the property sold to the Wilsons and the defendant that affected 2.39 acres which is the subject matter of these proceedings. During November 1965 the defendant received information of the plaintiffs’ recorded notice of their purchase and thereafter paid off the balance due under its purchase contract and recorded the deed from Lillie Sherwood.

In July 1970 the plaintiffs became aware of the defendant’s claim of ownership. The plaintiffs continued to make the payments and in July 1972 they paid the balance due under the contract. Plaintiffs were concerned that should they fail to make the payments their interest in the property would be forfeited under the provisions of the contract. The trial court found that the plaintiffs were not bona fide purchasers for value inasmuch as they had paid the balance due under their purchase contract after they had learned of defendant’s claim of ownership of the tract of land in question. It should be noted that the defendant likewise paid off the balance due under its contract after it had notice both actual and constructive of the claimed interest of the plaintiffs. It would thus appear that the claims of the plaintiffs and the defendant are on equal footing.

The provisions of Section 57-3-2, U.C.A. 1953, are governing in this case and are herein set out:

Every conveyance, or instrument in writing affecting real estate, executed, acknowledged or proved, and certified, in the manner prescribed by this title, and every patent to lands within this state duly executed and verified according to law, and every judgment, order or decree of any court of record in this state, or a copy thereof, required by law to be recorded in the office of the county recorder shall, from the time of filing the same with the recorder for record, impart notice to all persons of the contents thereof; and subsequent purchasers, mortgagees and lien holders shall be deemed to purchase and take with notice.

Plaintiffs having recorded their notice of purchase prior to the recording of the defendant’s deed, the defendant becomes the subsequent purchaser and is deemed to take with notice of the plaintiffs’ interest.¹ The sufficiency of the notice recorded by the plaintiffs was not an issue in the court below and we do not deal with it here.

The decision of the court below is reversed and that court is directed to enter a decree quieting title to the land in question in the plaintiffs. Appellants are entitled to costs.

CALLISTER, C. J., and CROCKETT, J., concur. HENRIOD, J., concurs in the result.

1 . Davis v. Ward, 109 Cal. 186, 41 P. 1010; Beard v. Morgan, 143 Neb. 503, 10 N.W.2d 253; Daniel v. Kensington Homes, Inc., 232 Md. 1, 192 A.2d 114; 8 Thompson, Real Property, 1963 replacement, Sec. 4321, p. 415.