
    PRICE v. LLOYD.
    No. 2311.
    Decided Sept. 9, 1913
    (135 Pac. 268).
    Quieting Title — Findings—Review. In. a suit to quiet title, evidence held to sustain findings that; during the time of complainant’s occupancy of the premises in question, deceased, under whom complainant claimed by a parol gift, exercised acts of exclusive ownership over the premises, and that the improvements placed upon the land hy complainant and her husband were not permanent improvements, increasing the value of the freehold, but rather those conducive to comfort of occupancy.
    Appeal from District Court, Third District; Hon. G. W. Morse, Judge.
    Suit by Martha Lloyd Price agaiust John H. Lloyd as executor of the will of W. J. Lloyd, deceased.
    Decree for defendant. Complainant appeals.
    Affirmed..
    
      W. B. Hutchinson, and D. H. Wenger for appellant.
    
      M. Thomas for respondent.
   McCAETY, C. J.

This is an action in equity to quiet title to certain property situate in Salt Lake City. The case was here on a previous appeal. (31 Utah, 86, 86 Pac. 767, 8 L. R. A. (N. S.) 870.)

Tbe relief asked for by plaintiff on tbe former bearing was specific performance of a parol agreement to convey tbe land in controversy. Tbe judgment, -wbicb was in favor of plaintiff, was reversed, and tbe cause was remanded for a new trial. Tbe case was retried, and a decree rendered in favor of defendant.

Tbe evidence introduced at tbe last trial was, witb tbe exception of tbat part relating to tbe value of tbe improvements placed on tbe property by plaintiff, substantially tbe same as tbe evidence adduced at tbe first trial. In tbe opinion of tbis court on tbe former appeal will be found' an elaborate statement of tbe facts, bence we deem it unnecessary to again state tbem in detail. We shall, however, refer to tbe evidence as adduced on tbe last trial in so far as it may be necessary to illustrate and determine tbe questions here involved.

Tbe findings of fact made by tbe court in tbe last trial are as follows:

“That W. J. Lloyd, deceased, at and continuously for more than twenty years immediately prior to bis death, was seised in fee, and was tbe owner of and entitled to possession, and so died, of tbe following described real property, situate in Salt Lake City, Salt Lake County, State of Utah, to wit: (Describing it.) Tbat tbe said deceased gave by verbal gift to tbis plaintiff tbe property described in said complaint. Tbat tbe said plaintiff entered into occupancy of the said premises on or about tbe 2d day of July, 1891. Tbat, during tbe time of said occupancy of tbe premises in question by tbis plaintiff and her husband, tbe said deceased exercised acts of exclusive ownership over tbe said premises. Tbat during all of tbe said period, and for more than twenty years immediately prior to tbe death of tbe deceased tbe said W. J. Lloyd, deceased, paid to tbe treasurer of Salt Lake County, and to tbe collector of taxes in Salt Lake County, tbe taxes upon said property, and wbicb said property was continuously assessed in bis name. That tbe records in tbe office of tbe county recorder of Salt Lake County, State of Utah, show tbat tbe said W. J. Lloyd, deceased, during all tbe time and for more than, twenty years immediately prior to his death, and at the time of his death, was the owner in fee of the said premises here-inbefore described. That the said plaintiff paid to the said deceased taxes upon the said property. That no agreement or contract in writing was entered into between this plaintiff and the said deceased, W. J. Lloyd, in relation to the said real estate in respect to a gift thereof, or with reference to any agreement to convey to the said plaintiff, by the said W. J. Lloyd, deceased,- or by any person by him authorized,, the premises hereinbefore described. That, during the time of the occupancy of the said premises by the said plaintiff and her husband, certain improvements were made by the said plaintiff and her husband, on the said premises; but the court finds that said improvements were not such as have a substantial or permanent character, or as are beneficial to the freehold, but were merely for the ordinary convenience and comfort of the plaintiff and her husband in the use and' occupation of the premises, and the amount and value of improvements did not exceed the rental value of said property during the period of occupancy of said property by the plaintiff and her husband, and are no more than might ordinarily have been made by a tenant at will. That the said plaintiff, in common with other sons and daughters of the said W. J. Lloyd, deceased, from time to time administered to the wants of the said W. J. Lloyd, deceased, from on or about the-day of July, 1891, up to the date of the death of said W. J. Lloyd, deceased.”

The court also found as a conclusion of law:

“That the plaintiff has no cause of action against the defendant herein, and that she has no right, title, or interest whatsoever in the said land or premises hereinbefore described, or any part thereof, either by alleged gift, contract, or conveyance from the said W. J. Lloyd, deceased.”

Respondent has devoted much space in his brief to the-discussion of the finding of fact made by the court “that the deceased gave by verbal gift to this plaintiff” the property in controversy, and seems to contend, if we correctly understand tbe tenor of bis argument, tbat tbis finding is not supported by tbe evidence. While tbe testimony of some of appellant’s witnesses is to tbe effect tbat “said deceased gave by verbal gift to tbis plaintiff tbe property” in question, as found by tbe court, yet there is much evidence in tbe record which tends to show tbat tbe deceased never intended to divest himself of tbe ownership thereof. However, since tbe respondent has filed no cross-assignment of errors, we do not feel at liberty to disturb tbe finding which tbe trial court made on tbat issue.

Comp. Laws 1907, section 2461, which was in force at tbe time tbe parol gift in question was made, and when tbis controversy arose, provides:

“No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring tbe same, or by bis lawful agent thereunto authorized by writing.”

Tbis action being based upon a parol gift of land, tbe important question is, Do tbe facts as disclosed by tbe record entitle plaintiff to tbe equitable relief prayed for in her complaint, namely, “tbat tbe title to said premises be quieted in her, and that tbe defendant be, and all persons claiming by, through, or under tbe said deceased, William L Lloyd, under bis will, be forever enjoined and restrained from interfering with tbe possession of tbis plaintiff?” While appellant has assigned numerous errors, only two' of them contain sufficient merit to warrant consideration, and these relate to tbe court’s second and fifth findings of fact. Appellant objects to tbat part of finding No. 2 which is as follows:

“Tbat, during tbe time of said occupancy of tbe premises in question by tbe plaintiff and her husband, tbe said deceased exercised acts of exclusive ownership over tbe said premises.”

This finding is assailed on the ground that it is contrary to the evidence. It is conceded that, during the occupancy of the premises in question by appellant and her husband from 1891 until the death of William J. Lloyd, which occurred in 1903, the property was assessed to Lloyd, and that he paid all the taxes. It is also conceded that on several occasions during this time he, Lloyd, rented a part of the premises to parties other than appellant, and collected the rent thereon. There is substantial evidence to the effect that during the time appellant lived on the premises certain improvements were made for and under the direction of Lloyd, and that he paid for the same. There is also sufficient evidence to support a finding that Lloyd, during appellant’s ■occupancy of the premises, advertised the same for sale by posting a sign in a conspicuous place on the property with the words “Nor sale, apply to William J". Lloyd,” written thereon. And there is evidence tending to show that Lloyd collected rent from appellant during the time that she and her husband occupied the premises from 1891 until the death of Lloyd in 1903. Appellant and her husband, Fred Price, testified in the cause, and denied that they or either of them paid Lloyd rent for the use of the property, denied that Lloyd posted a sign on the property offering it for sale as •above stated, and denied that he made any improvements on the property except by permission of appellant. Fred Price, in his testimony, claimed that, while Lloyd rented a portion of the premises and collected the rent, he did so by permission of appellant, and not otherwise. We are of the opinion, however, that the finding of fact made by the court that Lloyd “exercised acts of exclusive ownership over said premises” is supported by the greater weight of the evidence. This assignment of error is therefore overruled.

The evidence shows that the rental value of that part of the property occupied by appellant was from ten dollars to fifteen dollars per month.

,We are also of the opinion that finding of fact No. 5, relating to the character and value of the improvements made ■on the premises by appellant and her husband, is supported by the greater weight of the evidence. One witness only, for appellant, testified as to the amount — sum total — of the-expenditures made by her on the premises during1 the lifetime of Lloyd. This witness testified that “she (appellant) paid in in expenses, including taxes, $2774” on the property; that the taxes were $659.08. This witness also testified that the improvements consisted of a barn (this so-called barn the undisputed evidence shows was nothing more-than a mere shack or shed), fences, chicken coops, gravel and cinders hauled onto the sidewalks contiguous to the-property, twenty-four apple and pear trees, elm, box elders, rose bushes, etc., planted thereon, and that several hundred dollars were spent by appellant in painting and repairing the house occupied by her. Photographs were taken of the-fences and outbuildings alleged to have been erected by appellant and her husband. These photographs were made-exhibits, introduced in evidence, and made a part of the bill of exceptions, and they show that the improvements “were (as found by the court) not such as have a substantial or permanent character, or as are beneficial to the freehold.” We think the evidence regarding the value of the improvements, considered as a whole and in connection with the photographs mentioned, is all but conclusive that the value as fixed by appellant’s witness was very much exaggerated. For example, the witness who testified for appellant as to the value of the improvements, in giving his testimony, said:

“To the south of the house there is about four rods of fence made of 2x4’s, cedar posts and pickets, put there by Mrs. Price (appellant) about 1892, cost about $70.”

According to this testimony, the fence cost at the rate of $17.50 per rod. The great preponderance of the evidence shows that at the time that piece of fence was erected the cost — market value — of that land and grade of fence did not exceed $3.50 per rod. The witness last referred to also testified that appellant “paid approximately $18 for (four rods) Burton-Gardner fence, to buy stuff, and have the thing (fence) put there.” That is, according to the evidence introduced by appellant, the Burton-Gardner fence cost ap■pellant at the rate of about $4.50 per rod. The great weight ■of the evidence, however, shows that the market value of Burton-G-ardner fence, including the cost of labor for putting it up, was less than two dollars per rod. The foregoing is a fair sample of much of the evidence introduced by appellant regarding the value of the improvements.

The opinion of this court, written by Mr. Justice Straup, •on the former appeal of this case, contains an able and lucid ■discussion of the principles of equity applicable to the facts presented on that appeal. Therefore, the facts presented by this appeal being substantially the same in all respects as the facts presented by the former, appeal, the case is ruled by the decision rendered by this court on that appeal.

The judgment is affirmed, with costs to respondent.

STRAUP, J., and HOWELL, District Judge, concur.  