
    JOHN W. MAXFIELD, Appellant, v. JOSEPH A. WEST, and others, Respondents.
    Statute op Frauds. — Parol Contract. — Possession.—A parol sale of land without possession taken is invalid, although part of the purchase price was paid at the time of the making of the contract.
    Id. — Id.—Payment op Purchase Price. — The defendant West purchased certain real estate at a trustee’s sale under a trust deed and took the deed in his own name as trustee for Maxfleld, and Maxfleld entered into possession and left the property with West as agent. Afterwards by agreement between Maxfield and Grant, the holder of the trust deed, the sale to Maxfleld was declared off. Afterwards Grant and Maxfield agreed to renew the old agreement, and Maxfield gave Grant his note for 82,000. In the meantime West, who still held the legal title, before he had notice of the renewed agreement bargained the property to the respondent Kiesel, but before the .bargain with Kiesel was consummated both West and Keisel had full notice of the renewed sale: held, that the renewed contract was within the Statute of Frauds and void, because no possession was taken under it, even though payment of part of purchase price was made.
    
      Practice — Findings—Decree—Semble if the decree is according to the evidence in a suit in equity, it makes no difference whether it is supported by the findings or not.
    Appeal from a judgment of tbe district court of the first district and from an order refusing a new trial. The findings of the court below were that Joseph A. West had possession of the premises' from May 13th, 1887, until he delivered it to defendant Kiesel; that on May 11th, 1887» West purchased said premises and receivéd a good and sufficient deed therefor and held the legal title until he delivered it to Keisel; that West in purchasing acted for Maxfield, the plaintiff, but Maxfield never at any time paid any money; that West within two days after his purchase leased the premises to Lundy and McKinney for six-months and during that time collected the rent and appropriated the proceeds to his own use; that about May 20th, 1887, West and wife executed a deed to Maxfield, bnt Maxfield refused it and negotiations were brought to an end, Maxfield having paid nothing; that on August 19th, 1887, Kiesel purchased from West for $2,000 the premises and warranty deed was executed; that September 5th, 1887, Maxfield first claimed the legal title; that on October 12th, 1887, this court ordered the deed from West to Kiesel to be delivered, and it was done, full consideration having theretofore been paid; that Kiesel never had any intimation that Maxfield claimed the legal title until September 15th, 1887, nor that he claimed the equitable title until May 10th, 1888; that Kiesel sold the property to defendant Sarah Kershaw for $3,000 and no more; that all previous contracts between Maxfield and West or Grant were rescinded July 23d, 1887, and the note of Maxfield was then returned to him; his note for $2,000 and all money paid on said note and mortgage given to secure it was returned to Maxfield with one per centum per month interest, and the relation of beneficiary and trustee between West and Maxfield then ceased; that Maxfield and Grant made another contract verbally on August 18th, 1887, by which plaintiff was to have said premises at the same price as in the first contract, and then executed his note for $2,000, ante-dated May 14th, 1887, to correspond with the first contract, and paid to Grant on it $400; that Grant then wrote to West notifying him of the new contract, but West did not get the letter until several days afterward; that when West sold to Keisel neither he nor Ransford Smith, West’s attorney, knew of the renewed agreement, and that Maxfield made a subsequent payment to Grant of $600.
    The remaining facts are stated in the opinion of the court.
    Messrs, Sutherland and McBride for the appellant.
    
      Mr. A. B. Heywood for the respondent.
   Blackbuen, J.:

Heber J. Grant, for himself et al., loaned to Straub $2,000, and took a trust-deed to secure the same. The money was not paid, and tbe property in controversy was sold to pay tbe same. Tbe respondent West was a part owner of tbe money loaned. At the sale tbe property was bid off for $2,000 by West for tbe appellant, in pursuance of a previous arrangement between appellant and Grant, which was that appellant was to take tbe property at that sum, and pay for tbe same in installments. West took the deed in bis own name, and requested Straub in writing to deliver tbe possession of tbe property to appellant, as he bad bid it off for him. Appellant took possession of tbe property, and left it with West to rent for him. The property was in tbe city of Ogden. West lived in Ogden, and appellant and Grant lived in Salt Lake City. Afterwards appellant paid to Grant $600 on tbe property, and gave a note and mortgage to secure tbe balance. West leased tbe property for six months, tbe title still remaining in him, and executed a deed, subject to tbe lease, and tendered the same to .appellant, and appellant refused to accept it with tbe clause subject to tbe lease, and thereupon be complained to Grant, and he and Grant mutually agreed that tbe trade should be declared off, and Grant paid him back his $600, with interest, and the note given was canceled. It seems tbe property did not sell for enough to pay off the whole debt to Grant and tbe parties interested, and West testifies appellant agreed, in order to make up some of the loss they bad suffered, that be (West) might have tbe rent on tbe property for six months. This appellant denied, and on account of this disagreement tbe trade was declared off. The sale was in May, 1887. Afterwards, in August, Grant and West having failed to sell tbe property, West informed Grant that be was willing to allow appellant to have tbe six months’ rent if be would now take the property on tbe original agreement, and Grant and appellant met in Salt Lake City, and renewed tbe old agreement, and appellant gave bis note to Grant for $2,000, dated of tbe same date as the one that was canceled, so as to fit the description in tbe mortgage which bad not been receipted on tbe record, and paid Grant $400, which was credited on tbe same. In tbe mean time, before be bad any notice of the sale to appellant, West bargained the- property to the respondent Fred J. Kiesel, but both he and Kiesel had notice of the sale to the appellant before this trade was ■consummated; but West had gone from home, and had left a deed duly executed by himself and wife, to be delivered to Kiesel on payment of the purchase money. When West learned the facts, he refused to carry out either trade, and did not deliver the deed to Kiesel, and take the purchase money, although tendered to him. Appellant then commenced this suit against West alone, alleging he had paid for the property and was entitled to a deed therefor. A few minutes afterwards Kiesel commenced a .suit claiming substantially the same thing. Kiesel’s suit went to judgment, and a decree was made giving him the property.

It is not necessary to go into the details of the suit of Kiesel, as we think that suit in no way determines the rights of the parties to this suit, as appellant was not a party to it. When his suit was commenced appellant had paid on the purchase money of the property to Grant something over $1,000. As to whether the agreement about the rent for six months, as stated by West, is true or not, we will not decide, for it was a controverted fact, and about it there was conflicting evidence, and the Court below found the fact to be with West. There was evidence enough to support that finding, if not a preponderance in its favor, arid the rule is the same as in reference to the finding of a jury that the appellate court will not disturb it unless it is clearly wrong. But we think that fact wholly immaterial, for the parties disagreed about it, and mutually agreed the trade was off, and the appellant took back the money that was paid and his note, and that ended the whole matter up to that time, and neither party could claim anything on account of the cancelled agreement. We have nothing to do with the question whether the decree against West in favor of Kiesel was correct or not; for, if the appellant could enforce his claim against West, he could also against Kiesel, as Keisel had notice of appellant’s rights before he paid for the property, or tendered payment, and was made a party to this suit by an amended complaint. Tbe question then is, can tbe appellant enforce bis agreement witb Grant of tbe date of August 19tb, against tbe respondent West and bis grantees ? We tbink not. Tbe property bas been left on West’s bands as tbe owner, and tbe appellant bad no more claim upon it tban a stranger, assuming tbat Grant bad bad authority to sell it to tbe appellant, and tbat be did bargain it to him, tbe new contract would require tbe solemnity and tbe same requisites to make it valid under tbe statutes of frauds as if made witb a stranger under tbe statute. 2 Com. Laws Utah, 153, 154. A person acquires no equity in law tbat can be enforced in a court of equity by a parol purchase, witb a part payment of tbe purchase money. This is a parol transfer of land, witb a part payment of tbe purchase money, no possession passing under tbe contract; for, if tbe appellant bad possession under tbe first contract, be liad completely abandoned it by a cancellation of tbat contract. The fact tbat a part of tbe purchase money bad been paid was not of itself sufficient in equity to take tbe parol contract out of tbe statute. 3 Pom. Eq., Jur. Sec. 1409. Much is said in the briefs of counsel about the findings of fact and conclusions of law made by the Court below. It makes no difference bow erroneous these may be, tbe decree is right. Tbe decree is affirmed.

Zane, O. J., and ANDERSON, J., concurred.  