
    LARSEN v. GASBERG.
    No. 2457.
    Decided July 9, 1913
    (134 Pac. 885).
    1. Quieting Titee — Amended Pleadings — New ok Different Cause of Action. It was not error to permit plaintiff, in a suit to quiet title, to amend lier complaint so as to allege tiiat tide deed from her to defendant’s grantor, under which defendant claimed, was obtained by fraud and was void, since the amendment .only amplified the allegations of the original complaint and did not introduce a new cause of action. (Page 206.)
    2. Appeal and Error — Effect in Lower Court of Decision in Appellate. Where a judgment is reversed and a new trial granted without giving explicit directions, the case stands in the lower court precisely as it did before the first trial was had, and the lower court may allow any amendments except such as would open questions adjudicated by the appellate court. (Page 208.)
    3. Lis Pendens — Purchases Pending Suit. Where real property was levied upon under an execution as the property of the judgment debtor, the filing of a Ms pendens notice of a suit by the grantor of the judgment debtor one day before the execution sale imparted notice to the purchasers at such execution sale of all plaintiff’s right, title and interest. (Page 210.)
    Appeal from District Court, First District; Hon. N. J. Harris, Presiding Judge.
    Action to quiet title by Christina J. Larsen against Jens C. Gasberg.
    Judgment for plaintiff. Defendant appeals.
    Aeeirmeb.
    
      B. H. Jones for appellant.
    
      
      B. H. Jones and Neis Jenson for respondent.
    STATEMENT OK EACTS.
    This is an action in equity to quiet title to certain real property situated in Box Elder County, Utah. Tbe action was brought under C'ompi. Laws 1907, section 3511. Tbe case was before this court on a former appeal. (Larsen v-Gasberg, 30 Utab, 471, 86 Pac. 412, 116 Am. St. Hep. 859 (1906.) ) Tbe cause was reversed, -with directions to tbe lower court to grant a new trial. By an examination of tbe statement of facts in tbe opinion reversing tbe case, it. will be seen that plaintiff deeded tbe parcels of land in controversy to J. B. Carrington June 15, 1897, reserving to berself and husband, Jens Larsen, a life estate in tbe property. Gasberg, defendant herein, and one Miller obtained a judgment against Carrington in tbe district court of Box Elder County for tbe sum of $740.05. Tbe judgment was duly entered and docketed and became a lien on whatever interest Carrington bad in tbe property. An execution was issued on tbe judgment and all tbe right, title, and interest that Carrington bad in tbe property was sold under and in pursuance of tbe execution and was purchased by Gasberg and Miller, judgment creditors in tbe action. Several months after Carrington’s interest in tbe property became impressed with tbe judgment lien, and on the day before tbe interest was purchased by Gasberg and Miller under tbe execution sale, plaintiff and her husband commenced an action in tbe district court of Box Elder County to have the-deed from plaintiff to Carrington canceled on tbe ground that it was obtained through fraud and misrepresentation and without consideration. Lis pendens of this suit was filed and recorded on tbe day the^suit was commenced ond one day before tbe property was purchased by Gasberg and Miller under tbe execution sale mentioned. Gasberg, who bad in tbe meantime acquired Miller’s interest in tbe property, was not made a party to tbe action. A trial was bad and tbe court entered a decree in which it was held that tbe deed from plaintiff to Carrington was null and void and that it be canceled. Tbis court held, in tbe opinion rendered on tbe former appeal, tba.t Gasberg was a necessary party to tbe action brought against Carrington for tbe cancellation of tbe deed, and, not baying been made a party, be was not concluded by tbe judgment. On tbe first trial of tbe case plaintiff introduced in evidence tbe deed from berself to Carrington and tbe judgment roll of tbe case referred to and rested. In tbe opinion reversing tbe case we said:
    “There is nothing on the face of the deed of conveyance which purported to vest in Carrington an estate in the property which indicated or suggested that it was obtained through fraud and without consideration. Therefore, when plaintiff put this deed in evidence, which showed that the fee to the property was in Carring-ton, it was incumbent upon her, if she wished to avoid its effect upon the ground that it was obtained through fraud and without consideration, to establish these facts by competent evidence and give the defendant an opportunity to try the issue of fraud. In other words, the defendant was entitled to his day in court, and his rights, whatever they were, could not be extinguished by a judgment in an action which was commenced long after the judgment lien attached, by virtue of which the property was levied upon and sold, and to which action he was not made a party.”
    On retrial of tbe cause, plaintiff offered evidence tending to show that tbe deed from ber to Carrington was obtained through fraud and misrepresentation and without consideration. Tbis evidence was objected to' by defendant and tbe objection was sustained. Plaintiff was permitted, over defendant’s objections, to amend ber complaint by setting forth therein tbe alleged fraudulent acts and misrepresentations of Carrington by which be induced ber to' deed to him tbe property in question, and that be obtained tbe deed from ber without consideration, and that Gasberg and Hiller, tbe judgment creditors of Carrington, bad actual and constructive notice of these facts prior to their purchase of tbe property under tbe execution sale hereinbefore mentioned. Plaintiff also asked that defendant be required to set forth tbe nature of bis claim, and that all adverse claims of defendant be determined by a decree of tbe court, and that “all clouds be removed, and that defendant and bis successors or assigns or grantees be forever enjoined and debarred from asserting any claim whatsoever in or to said land or premises adverse to' tbe plaintiff.” Tbe amendment was made instanter, October 13, 1906. Tbe proceedings however, because of tbe amendment were suspended and tbe cause continued. On March 10, 1908, plaintiff was again allowed, over defendant’s objections, to amend her complaint by setting forth more in detail tbe alleged fraudulent acts and misrepresentations of Carrington than they were alleged in tbe first amended complaint. On July 26, 1911, more than three years after tbe filing of tbe second amended complaint, and nearly five years after tbe filing of tbe first amended complaint, tbe cause was again called for trial, and tbe court, after bearing tbe evidence, found in favor of plaintiff on all of tbe issues. Tbe judgment, so far as material here, recites that “it is ordered, adjudged, and decreed that plaintiff is tbe owner of tbe said property described in tbe complaint; . . . that tbe defendant, Jens Gasberg, has no estate or right or title whatsoever in or to said lands or premises; . . . that tbe sheriff’s deed to Gasberg . . . and tbe deed from said Miller and wife to Jens Gasberg ... be and tbe same are hereby canceled and annulled and declared void and of no effect, and tbe defendant Gasberg and bis successors be forever enjoined from asserting any claim ... to said lands or premises . . . adverse to tbe plaintiff.” To reverse tbe judgment, defendant appeals.
    
      
       Casady v. Casady, 31 Utah, 394, 88 Pac. 32; Fell v. Union Pac. Ry. Co., 32 Utah, 101, 88 Pac. 1003, 28 L. R. A. (N. S.), 13 Ann. Cas. 1137.
    
   McCANTY, O. J.

(after stating tbe facts as above).

Tbe principal ground upon which appellant assails tbe judgment is that tbe court erred in permitting plaintiff to •amend her complaint after tbe cause was reversed and remanded for a new trial. It is contended in support of this assignment of error that tbe complaint as amended sets forth a separate and distinct cause of action from tbe one alleged in tbe complaint before it was amended. Tbe cause of action alleged in tbe complaint as originally filed was an action to quiet title. The amendments did not change the character of the action. The action still remained an action to quiet title, and the relief demanded in the amended complaint is the same relief asked for in the complaint as originally filed. In the complaint before and after it was amended, plaintiff alleged that she is the owner and in possession of the property, and that the defendant has no right, title, or interest therein, and asked that defendant be required to set forth the nature of his claim to the property. Defendant in his answer denied plaintiff’s title and alleged that he was the owner of the property “subject to an alleged life estate therein in favor of said plaintiff.” Under the issues thus made, plaintiff on the first trial, for the purpose of showing that the chain of title upon which defendant relied was from its very inception invalid, introduced in evidence the judgment roll in the case of Larsen v. Carrington, in an action to which defendant was not a party. On the former appeal of this cause, this court, as we have hereinbefore observed, held that defendant’s rights, whatever they were, to the property were not extinguished by the judgment in that action; that he was entitled to his day in court on the question of fraud, misrepresentation, and want of consideration which the judgment roll in the case mentioned tended to establish and thereby destroy his chain of title. As we have hereinbefore stated, on a retrial defendant objected to the introduction of oral evidence by plaintiff tending to show that the deed from plaintiff to Carrington (which is the source of defendant’s claim of title) was obtained by fraud, misrepresentation, and without consideration. The plaintiff, therefore to overcome this objection, was permitted to amend her complaint by alleging fraud, misrepresentation, and want of consideration.

“Amendments which only amplify the statements or prayer in the original complaint are not deemed to introduce a new cause of action.”

1 Eney. PL'& Pr. 557, and eases cited in note. In the same volume, commencing on page 468, the general rule governing amendments of pleadings in equity cases is stated as follows:

“If the hill he found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted, or as more recently stated, amendments, however considerable, the purpose of which is to bring before the court other parties to the controversy, or to strengthen, elucidate, or explain the case made by the original bill, or to put in issue some material fact directly or indirectly affecting the case so made, will be freely allowed at any stage of the proceedings.”

We also invite attention to tbe following cases: Thomas v. Mead, 8 Mart. N. S. (La.) 341, 19 Am. Dec. 187; Casady v. Casady, 31 Utah, 394, 88 Pac. 32; Fell v. Union Pac. Ry. Co., 32 Utah, 101, 88 Pac. 1003, 28 L. R A. (N. S.) 1, 13 Ann. Cas. 1137. We are clearly of tbe opinion that tbe couid did not err in permitting tbe amendments.

Counsel for appellant further contend, if we correctly understand tbeir position, that tbe questions of fact presented by .tbe amendments were passed upon and determined by tbis court in favor of appellant on tbe former appeal of tbe cause, and bence tbe decision is tbe law of tbe case as to those points and a final determination thereof, binding alike upon tbe court and tbe parties to tbe action. We think it will be seen from a casual reading of tbe opinion (30 Utah, 471, 86 Pac. 412, 116 Am. St. Rep. 859) that tbe case was reversed because tbe trial court in effect held that appellant’s rights, whatever they were, in tbe property were determined by tbe judgment rendered in tbe case of Larsen v. Carrington (tbe judgment roll of which was admitted in evidence), to which action be was not made a party; and a new trial was granted in order that be might have “bis day in court” and be given an opportunity to try the issue of fraud, misrepresentation, etc. We think it is manifest that it did not occur to tbis court in tbe preparation of tbe opinion that it would be necessary for respondent to amend her complaint to entitle her to introduce evidence on tbe question of fraud, misrepresentation, and want of consideration. And we do not wish to be understood as bolding or intimating tbat it was necessary for respondent to amend ber complaint before sbe could properly introduce evidence on tbat issue. Tbe trial court baving permitted respondent to amend ber complaint, tbat question is not before us. Wbat we do say is tbat we tbink it clearly appears from tbe opinion tbat tbe •cause was remanded for a new trial to give tbe parties an opportunity to try tbe question of fraud, a matter concerning wbicb appellant bad not bad bis day in court. Let tbat be -as it may, tbe judgment of tbe lower court was reversed and tbe cause remanded without any specific directions ex■cept tbat a new trial should be granted. Tbe rule is well settled tbat, where a judgment is reversed and a new trial granted without any specific instructions or directions, tbe case stands in the lower court precisely as it did before a trial was bad in tbe first instance. Tbe general rule in this regard is well stated in 3 Ency. L. & P. 579, in tbe following language:

“When a decree is reversed and the cause remanded without specific directions, the decision of the court below is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred, and that court has the same power over the record as it had before its decree was rendered, and it may permit amendments to the pleadings to the same extent that it might have done before the trial, and in the exercise of the same 'discretion, except that it is concluded by the legal principles •announced by the appellate court. And where a cause is reversed •and remanded with directions to proceed in conformity with the views expressed in the opinion filed, and it appears from such ■opinion that the grounds of reversal are of a character which may be obviated by subsequent amendments of the pleadings or the introduction of additional evidence, it is the duty of the trial court to permit the cause to be redocketed and to permit amendments to be made and evidence introduced on the hearing just as though it was then being heard for the first time.”

Tbe doctrine is tersely, and we tbink correctly, stated in 1 Ency. Pl. & Pr. 618, as follows:

"Where the appellate court reverses a judgment and remands, the cause generally without any specific directions, amendments, to the pleadings may be allowed upon the reinstatement of the case* in the court below as if it had never been tried, although the appellate court may have adjudged the pleadings insufficient on de?-murrer.”

Of course, as stated on page 620 of the same work,

“a party should not be allowed to amend so as to reopen questions-, which have been adjudicated by the appellate court.”

The evidence tends to show, in fact it is all but conclusive,, that the deed from the plaintiff to Carrington was obtained by Carrington through fraud, misrepresentation, and without consideration.

The filing of the lis pendens in the suit of Larsen (plaintiff) v. Carrington one day before the execution sale mentioned imparted notice to Gasberg and Miller of plaintiff’s equity, right, title and interest in the property. 5 Words and Phrases, 4183. Gasberg and Miller having bid in (purchased) Carrington’s interest in the property with notice, they were not bona fide or innocent purchasers, and, hence they acquired the interest subject to. all infirmities and defects in the title imparted by the notice. 17 Cyc. 1297, 1298; 3 Freeman on Excutions, section 344.

A number of other questions are discussed by counsel in their brief, but we do not deem them of sufficient importance to warrant us in considering them.

The judgment is affirmed, with costs to respondent.

PEI OK and STEAUP, JJ., concur.  