Drake v. Reggel

Merritt, O. J.: This is an appeal on the judgment roll from a judgment in favor of respondents. It appears from the record that on August 8, 1865, George Oronyn executed to his daughter, Lizzie D. Wilson, a deed of the premises in controversy. This deed, appellants claim, conveyed a life estate to Lizzie D. Wilson, with remainder in fee to such of her heirs as she might appoint. She died without making any appointment, and it is contended that appellants, her heirs, take in equal shares under the Oronyn deed, — the general intent of the grantor, that they should take, being capable of enforcement; the particular intent, that Lizzie D. Wilson might appoint among them, having failed. At the time of the execution of the Oronyn deed the grantor had no other right or title to the land than a simple possession. The land was public land of the United States, and no statute then provided for its sale. The laws of the United States applicable to the disposal of — 382 — public lands were not extended to Utab territory until July 16, 1868 (15 Stat. 91). The townsite act, under which title was obtained, was enacted March 2, 1867, and the act of the territorial legislature prescribing the necessary regulations thereunder, was passed February 17, 1869. This act contains numerous provisions regulating the rights of settlers, and the manner in- which their rights should be ascertained. The second section enacts that, within 30 days after the entry of the townsite by the corporate authorities, they shall give a prescribed public notice thereof. Section 3 prescribes that, within six months after the first publication of such notice, “ each and every person, * * * claiming to be the rightful owner of possession, occupant or occupants, or to be entitled to the occupancy or possession of such lands, * * * * shall file a statement in writing, with the probate clerk of the county, containing a description of the land claimed and the specific right claimed therein. That the filing of such statement shall be considered notice to all persons claiming any interest in the lands, of the claim of the person filing the same, and that all persons failing to make and deliver such statement within the time limited in this section, shall be forever barred from the right of claiming or recovering such land, or any estate or interest therein, or any part, parcel, or share thereof, in any court of law or equity.” Section 4 prescribes procedure for a trial in a case of adverse claims; and section 5, for a hearing and determination as to claimants’ right, where there are no adverse claimants, and for the execution of the mayor’s deed to the person adjudged to be entitled thereto. The mayor, entered the townsite of Salt Lake City, including the premises in controversy; and on March 26, 1872, Lizzie D. Wilson filed with the clerk of the probate court of Salt Lake county her statement describing said premises, but alleging “that she is entitled to a life estate — 383 — in the said piece or parcel of land* remainder to her lawful heirs, and prays that a fee-simple deed may issue to her, the said Lizzie D. Wilson,” and further referring to the Cronyn deed, by the book and date of its record, as the source of her right. On the hearing her testimony was reduced to writing, under the statute, and she testified that she entered into possession and held as heir of her father, George Cronyn, who occupied the premises up to his death. The probate court adjudged Lizzie D. Wilson to "be the lawful owner of possession of the said premises, •and to be entitled to a deed thereof in fee simple; and the mayor of Salt Labe City, in pursuance of such adjudication, executed to her a deed of the same, in fee •simple. She afterwards conveyed, in fee, the premises to the various respondents, or to their grantors. The respondents all purchased in good faith, for adequate considerations, and without any actual notice of the Cronyn deed, which was, however, recorded in the office of the county recorder of Salt Lake county prior to such purchases, and •on the 23d day of October, 1871, in book, C, pp. 329, 330, of mortgage records. Lizzie D. Wilson died intestate, and without making any .appointment, and prior to the institution of this suit. Appellants aj’e her heirs. It is not claimed that any of them filed with the clerk of the probate court the statement required by the act of February 17, 1869; and, unless they are in some way excepted from the bar of the •statute, they would be precluded from claiming or recovering the land in question under any right or title existing at the time when such statement should have been filed. The right they now set up reaches back to the time of the execution of the Cronyn deed. If their construction. of that deed be correct, they were entitled to an -estate in such land, capable of being the basis of a statement and adjudication. It is true that, at the time this — 384 — statement shonld have been filed, some of tbe appellants were not born* and tbe remainder were minors. But tbe statute contains no express exception as to persons under disabilities, and no sucb exception can be ingrafted on it by construction. Stringfellow v. Cain, 99 U. S. 610. And where a right vests in a class, as sucb, tbe action or laches of tbe members of tbe class in being binds those yet unborn. But it is contended that Lizzie D. Wilson, being, as claimed, entitled to a life estate, stood in a relation "of trust towards those entitled in remainder, and that tbe trustee having, by a breach of duty, acquired the title, equity will hold her as trustee for the remaindermen, notwithstanding their failure to file the required statement. In other words, that although the statute attempts to bar any one so failing from thereafter claiming any “estate” in any “court of law or equity,” there is one particular estate which such person can still claim in a court of equity. We find nothing in the statute to warrant this conclusion. In referring to a similar statute of the territory of Colorado, the supreme court of the United States said: “No language could be more explicit to make the failure to deliver the statement within the time specified a bar — an absolute bar — to the recovery of the same, however strong might be the equitable claim to the land so-lost.” Cofield v. McClelland, 16 Wall. 335; Rogers v. Thompson, 9 Utah, 46, 33 Pac. 234. It is not difficult to-see a reason for such a bar. At the time of the passage of this act, Utah territory had been settled for a comparatively short time. The utmost informality characterized all transactions respecting land. The rights which were recognized were frequently evidenced by loose memo-randa, and prior to 1870 no statute provided for the record of instruments pertaining to land, nor for the effect of a. record, if made*? It was essential to the prosperity of the — 385 — commnnity that the title to land shoold be rescued from such uncertainty, and the statute of February 17, 1869,. was the remedy prescribed for this evil'. It may shook the public conscience that a trustee should benefit by a failure to perform his duty; but that was the lesser of the two evils, and, in the judgment of the legislature, the public good required an end to uncertainty in titles-. In any event, the legislature did not see fit to exempt trustees from the benefit of the statute, nor the owners of equitable estates from its bar; and the duty of the court is to* declare the law, and not to make it. “ Jus dicere, et non jus dare.” Appellants, having failed to file the required statement, are precluded from recovering any estate in the premises created by the Cronyn deed, and adverse to the fee-simple estate conveyed to Lizzie D. Wilson by the mayor of Salt Lake City. We are also of the opinion that the respondents are innocent purchasers for a valuable consideration, and without notice of appellants’ claim, and that notice thereof was not imputed to them by reason of the record of such deed in the mortgage record, nor by the recital thereof in the statement filed by Lizzie D. Wilson with the clerk of the probate court. That a deed recorded in a mortgage record, and conversely a mortgage recorded in a deed record, is not constructive notice, has been frequently decided, and rests on the reasonable presumption that an intending purchaser will not look in such a book for such an instrument. Neslin v. Wells, 104 U. S. 428; Luch’s Appeal, 44 Pa. St. 519; Colomer v. Morgan, 13 La. Ann. 202. And it might be further said that the Cronyn deed, being outside of the direct chain of title from the United States, would not have given constructive notice, even if properly recorded. Nor could knowledge of Lizzie D. Wilson’s declaratory statement be imputed to a purchaser. — 386 — It is ordinarily true that, if any deed in tbe chain of title depends for its validity on another instrument or instruments, a purchaser by mesne conveyance under such deed must take notice of an instrument or instruments which authorize it, and therefore of the recitals of such instruments. But this rule is subject to the manifest exception that, where a patent for land is issued by the regular officers of the United States, a purchaser from the patentee may presume the regularity of the preliminary steps which culminated in the patent, and need not, at his peril, investigate' those steps. The title under the-mayor’s deed, in this case, does not differ in principle from title directly from the United States. In both cases, title results from a judicial investigation conducted by public officers acting under the obligations of their oaths, and a purchaser under such deed could presume that the jurisdiction of such officers has been rightfully exercised. It is unnecessary to decide * what, if any, estate appellants took under the Oronyn deed. The judgment is affirmed. Miner, Bartch, and Smith, JJ., concur.