
    SARAH A. MORRIS, Respondent, v. MARY K. BLUNT, SAMUEL B. KERSEY, JAMES B. KERSEY, WILLIAM HOFFMAN, MARTHA J. HOFFMAN, SAMUEL HOFFMAN, JAMES HOFFMAN, and JOSEPH BLUNT, Administrator of the Estate of Jane Kersey, Deceased, Appellants.
    No. 1964.
    Decided January 20, 1909
    (99 Pac. 686).
    1. ESCROWS — Delivery by Depositary — Sufficiency. Evidence held to show that a deed of land was placed in es-row by the grantor for delivery to the grantee on his paying the price, and hence a delivery to the grantee, who refused to pay the price, was unauthorized. (Page 202.)
    2. Vendor and Purchaser — Bona Fide Purchasers. A purchaser knew at the time of his purchase that his immediate grantors had never had possession of the premises nor had exercised any kind of ownership over the same, and that others were in possession, and exercised acts of ownership. The purchaser made no attempt to obtain possession until a considerable time after his purchase. The only consideration paid by him was the giving of a mortgage on the property. Held, that he was not an innocent purchaser for value. (Page 202.)
    Appeal from District Court, Third District. Hon. O. W. Morse j Judge.
    Action to quiet title. From a judgment for plaintiff, defendants appeal.
    Reversed.
    
      G. W. Oollins for appellants.
    
      Messrs. Young & Snow for respondent.
   STRAITP, O. J.

The respondent brought this action to quiet title to thirty-' five acres of land situate in Salt Lake county. The court made findings and entered a judgment quieting the title in her. It is undisputed that on and prior to the 27th day of June, 1903, Jane Kersey was the owner of the property. She died intestate March, 1904. The appellant Joseph Blunt is the administrator of her estate. The other appellants are her heirs at law. The Home Investment & Savings Company and.the Idaho Investment Company are separate cor--' porations. They maintain offices together at Salt Lake City. The principal business of both companies carried on at that place was managed by the same persons. In April, 1903. James B. Kersey, a son of the deceased, entered into a written agreement with the Idaho Investment Company to purchase eighty acres of land in Blaine county, Idaho, for the sum of $800, payable $8 per month. On the 27th day- of June, ÍL903, the deceased executed a deed purporting to convey her property to V. S. Graffam. The question over which the controversy arises is whether the deed made by her was placed in escrow to be delivered only when Graffam paid the eon-sideration agreed by him to be paid, or whether the deed was an absolute conveyance and was given as part payment of the purchase price on the contract entered into- between James B. Kersey and the Idaho Investment Company.

The facts, as claimed by the appellants, are: That the deceased listed her land with the Home Investment & Savings Company to be sold. On the 27th day of June, 1903, the deceased and her son, just before leaving Salt Lake- county to go to Idaho, where they had intended to remain some time, called at the office of the Home Investment & Savings Company. She was there informed by the person having charge of the business that negotiations for the sale of her land to V. S. Graffam were then pending, and, as she was about to depart from Utah and go to Idaho, it was suggested that she sign a deed conveying the property to Graffam. She executed such a deed and left it with the Home Investment & Savings Company to be delivered to Graffam upon payment of the purchase price, which was $800. She and her son then went to Idaho. Graffam paid $200 of the purchase price. On visiting the premises Graffam was informed by Alfred Blunt, who was then occupying the premises, .that he would not surrender immediate possession, and that he demanded reasonable notice to vacate. Thereupon the Home Investment & Savings Company, by B. K. Hardy, wrote Hr. Blunt, on the 27th day of July, 1903, as follows: “The property that you are now occupying, as you were informed, has been sold to Hr. V. S'. Graffam. The gentleman informs me that he notified you of this fact, and further that he desires possession. The property he purchased is situated in section 34, township 1 south of range 2 west- of Salt Lake meridian, containing thirty-five acres. Hrs. Kersey, before she left, signed a contract of sale and placed in escrow her deed conveying possession to Hr. V. S. Graffam, which said gentleman desires possession immediately or compensation for the use of the above premises.” Because he was told by Blunt that he could not have immediate possession, Graffam refused to comply with the terms of his contract of purchase and demanded the return of the $200 paid by him. He purchased other lands through the Home Investment & Savings Company, and the $200 paid by him was applied on that purchase. In reply to inquiries from the deceased, Hardy also wrote her, at Blaine county, Idaho, on the 15th day of August, 1903, as follows: “I had this place sold, as I had told you, and took a deposit to hold the purchaser till we could have title examined and deliver him the place. On his going to take possession of it, however, your tenant refused to give possession of it, and had high words over the matter. Accordingly the purchaser came back and demanded the return of his money because he could not get possession of the property. We waited till we found his story was a true one, that he could not get possession,' and then, of course, returned the money deposited. The purchaser also said that he was told by the tfenant that there were certain things about the place which would keep him from tailing it if he knew them. Having lost this sale, I have been advertising your property and have had several parties out to look at it. One, the present week, said he would take it, and would bring in the money to make the first payment within a day. We have waited patiently, but he has not come back. I have paid particular attention to your land and pushed it with all my might and main, but with no better results than I have related. We have already spent twelve dollars buggy hire taking parties to see your place. To-day the tenant (the old man) came in and we questioned him as to the meaning of his actions and talk with the man who went to take the place. He replied that his family was sick, that he had no place to go to, and that he was entitled to notice to get out sufficiently to enable him to cast about him and find another agreeable place. I am sorry of the unfortunate circumstances, but couldn’t help them. I will continue to work on the sale. Meantime we hold the deed you signed.” On August 20th he also wrote her: “I have your letter of August 17th and would say that I wrote you August 15th very fully in regard to the matter, explaining that the sale 'which I negotiated for you was knocked in the head by the occupant (tenant) of the premises, who refused to give the buyer possession and treated him with great rudeness. I have spent not less than $15.00 since that time talcing out customers to see the place, but the intense heat which we have been, having has so distressed prospective buyers on the way there that I have not been, able to accomplish anything. It is a shame that after having made the sale, that your tenant should have knocked it in the head by refusing to give the buyer possession of the property.” The genuineness of these letters is admitted, and the authority of the person writing them is. not denied. It is conceded that they were written by the person who negotiated the sale of the deceased’s land and with w*hom the deceased transacted the business and with whom she had left the deed. That the Home Investment & Savings Company had the deceased’s property for sale and had sold it to Graffam, but that he refused to carry out the agreement to purchase it, and that the money paid by him was returned because he claimed he was unable to get immediate possession of the premises, is likewise not disputed. Much evidence was given on behalf of the appellants tending to show that the deed made by the deceased was not to be delivered to Graffam until the purchase price of the land was paid.

On behalf of the respondent, the then president and manager of the Idaho Investment Company testified that, when the deceased and her son called at the office, Hardy called to the witness and said that he had sold the deceased’s property to Graffam for $800, and that Mrs. Kersey wanted to know “if we would receive this contract as a payment upon land that her son, James Kersey, had bought in Idaho. I asked him if the sale was a sure sale. He said it was. I told him under those circumstances we would be willing to take it if the property was clear. He said it wasn’t; that there was a $225 mortgage on it. . . . He said, 'we will hold the deed until Mrs. Kersey and her son pay this mortgage.’ I said, 'Under the circumstances, then, I am willing to do it.’ He said, 'Shall I make the deed, direct to Mr. Graffam or make it to you ?’ I said, 'You might as well malm it to Mr. Graffam, and we will take tbe proceeds.’ . . . On that date there was $768 unpaid on the note (which James Kersey had given to the Idaho Investment Company). We were to give Mrs. Ker-sey’s son credit on that note for the amount Graffam was paying, in consideration of her conveying the land to Graffam. This note belonged to the Idaho Investment Company, and was given for the purchase price of the Idaho land. She was to pay the mortgage (which was on her land).” He testified that he then wrote the following on a piece of paper, and pasted it on an envelope in which were inclosed the deed executed by Mrs. Kersey, the note and contract executed by James Kersey to the Idaho Investment Company, and a deed which the Idaho Investment Company agreed to deliver to James Kersey conveying the Idaho land: “Note $792, Jaines B. and Sarah J. Kersey.- Deed Idaho Inv. Co. to James B. and Sarah J. Kersey; 80 acres, Sec. 17, 1 So. 15 E., B. M., Blaine Co., Idaho. To be delivered to Jane Kersey on satisfaction $225 mortgage to Union Central Life L. Co., Book 4-B, pg. 438-9. June 27, 1903.” He testified that this memorandum was signed by Jane Kersey (by signing her mark), the Idaho Investment Company, and Y. S. Graffam. The witness further testified: That thereafter the envelope (containing the deed executed by the deceased, the note and contract executed by James Kersey to the Idaho Investment Company, and a deed which the Idaho Investment Company had executed to James Kersey) was delivered to Graffam; that thereafter Graffam, at the request of the Idaho Investment Company, executed a conveyance of the deceased’s property to it; that thereafter the- Idaho Investment Company sold the property to the respondent; that the witness, tore up the deed which Graffam had made to the Idaho Investment Company and requested Graffam to execute a conveyance direct to the respondent, which Graffam did. It is in virtue of these transactions as testified to by this witness that the respondent claims title to the land. The claim made in this respect, in effect, is that the deceased sold her land to the Idaho Investment Company, who, in consideration of such conveyance, gave James Kersey credit on his note for the sum of $575 ($800 less the mortgage of $225), and that the deed was taken in Graffam’s name as a matter of mere convenience. This contention is mainly based on the apparent contents of the written memorandum testified to by the president of the Idaho Investment Company, and which, he testified, was signed by the parties at the time the deed was made.

It is claimed by appellants that the alleged memorandum is spurious. There is evidence tending to show that when the deceased signed the deed and placed it in escrow, and left it with the Home Investment & Savings Company, she and Graffam signed a contract evidencing the terms of the sale. This is clearly indicated by the letter written to Blunt by the Home Investment & Savings Company wherein it is stated: “Mrs. Kerseyj before she left, signed a contract of sale and placed in escrow her deed conveying possession to Mr. Y. S. Graffam.” This contract of sale is unaccounted for. It is urged by the appellants that the signatures of the deceased and Graffam which were subscribed by them to' this contract of sale were subsequently, and without their consent, cut off and detached from the written contract by some one, and what appears to be the written memorandum testified to by the president of the Idaho Investment Company, was written above the signatures, and the signature of the Idaho Investment Company added. While there are some suspicious circumstances attending the memorandum warranting a close scrutiny of it, still it is unnecessary to say whether appellant’s contention in this regard is, or is not, well founded. There is other sufficient evidence to show, and upon which we are well satisfied, that the alleged memorandum testified to by the president of the Idaho Investment Company was not signed by the deceased. The essential elements and transactions concerning which the recitals of the memorandum relate are disputed by every witness in the case, including the president of the Idaho Investment Company. The recitals of the memorandum are disputed by tbe beirs of tbe deceased and by Graffam, and are inconsistent witb tbe letters written: to Blunt and tbe deceased by tbe Home Investment & Savings Company, tbe company witb whom it is conceded tbe deceased transacted ber business and left ber deed, and are at war witb all tbe attending facts and circumstances. Even tbe testimony of tbe president of tbe Idaho Investment Company, as well as all tbe other evidence in tbe case, shows that tbe deceased did'not sell ber property to that company, but to Graffam; that be agreed fir pay $800 for it; that be did not pay anything for it, tbe $200 paid by him having been returned; and that because be made tbe claim that be did not get immediate possession be repudiated' bis contract of purchase.

All the evidence in tbe case shows that tbe deceased was tbe seller, and Graffam tbe buyer, and notwithstanding be did not pay anything for tbe property, and that be repudiated tbe purchase contract, the deed was nevertheless delivered to him. We think it manifestly appears by tbe clear weight of tbe evidence that tbe deceased did not agree to have tbe proceeds of tbe sale of ber land applied to tbe payment of tbe contract existing between ber son and tbe Idaho' Investment Company. Tbe contract made by him was executed about three months before tbe deceased made ber deed. His contract called only for monthly payments of $8 each, without security. When the deceased made her deed, be bad made three payments of $8 each on his contract. There were no unpaid payments due at that time. Tbe deceased bad no interest in that contract. No payment bad been demanded or requested. There is evidence tending to show that, when the deceased made ber deed to Graffam, tbe contract which ber son bad made witb tbe Idaho Investment Company did not enter into tbe negotiations and was not a subject discussed or referred to by any one. This evidence is not disputed except by tbe testimony of tbe president of tbe Idaho Investment Company, who testified that, while tbe negotiations were being conducted in his office, but in which be bad no participation, Hardy called to him' and said that Mrs. Kersey, who was then present, wanted to know if the contract which she had made with Graffam, or the proceeds of the sale of her land, could be applied on her son’s contract. The evidence further, without conflict, shows that after the deceased and her son arrived in Idaho, and after he there visited the land which he had agreed to purchase from the Idaho Investment Company, he made the claim that the character of the land had been misrepresented and demanded a return of the $24 paid by him and reimbursement of his expenses,, and refused to make further payments on his contract. No claim was then made by the Idaho Investment Company,- or by any one else, that $515 had been credited on his note and contract because of the deed which his mother had made to Graffam, or that he had any credit excepting the sum of $24. The deed which Graffam made to the respondent was in September or October, 1905. The deceased made her deed to Graffam in June, ¡1903. During that time, a period of over two years> neither Graffam nor the Idaho Investment Company exercised any ownership over the property, nor did either attempt to do so, nor did' either demand possession of it. During all that time the deceased, or her heirs, was in possession of the land occupying and exercising ownership' over it.

Upon all the evidence we axe of the opinion that the deed which the deceased made was placed in escrow as contended for by the appellants, was not to he delivered until the purchase price agreed to be paid by Graffam was paid, and that it was delivered to him in violation of such agreement. We are further of the opinion that the respondent was not an innocent purchaser for value. She lived within a quarter of a mile of the deceased’s property. At the time •she claims to have purchased it she knew that neither Graffam nor the Idaho Investment Company ever had possession of the property or exercised any kind of ownership' over it, and that the appellants^ or some of them, were in the possession of the property and were and had been exercising acts of ownership over it. When she obtained her ■deed, she made no attempt to obtain possession until a considerable time thereafter. The only consideration paid by her was the giving of a mortgage on the property.

The' judgment of the court below is reversed, and the cause remanded to the trial court, with directions to vacate the judgment heretofore entered and to mate findings and enter a judgment in favor of the appellants quieting the title of the land in them as prayed for in their answer and counterclaim.

Cost to appellants.

THICK and McCAETY, JJ., concur.  