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Show FOUK PAGE THE DAILY RECORD TUESDAY, JUNE 9, 1970 to center of County road and 40 line; thence weBt along center of road 319. 5 feet to the place of beginning. less, (Emphasis added. ) The difficulty giving rise to this lawsuit stems from the fact that in 1943 Frank M. Alpaugh divided the property and deeded this smaller tract to the defendants Peterson by metes and bounds description, but without the emphasized reference to the fence line (a reference which had been in every conveyance of the larger tract back as far as 1875). In 1963 the Petersons conveyed to the plaintiffs Creason (Hallmark Constructors, Inc., a corporation owned by them) by a similar warranty deed without referring to the fence line. The absence of the fence line reference in that 1943 deed would cause a shift. .of the tract, compared to what it would be according to the survey, a short distance north of the tract as it would be as tied to the fence lines, as shown by the subjoined diagram. In The Supreme Court Of The State Of Utah CROCKET T. Chut justn i : Defendants Peterson deeded to the plaintiffs by a metes and bounds description a tract of land c containing about one acre located or. Ninth East near 5600 South in Murray, Utah Subsequently, in connection with a sale to a third party, piaiiviifs discovered that there was a variance of a few feet between the proper v l.res as described in the deed and the actual fence-lineon the property as ihev thought they had purchased it. They then demanded that the defend ints cure the defects, which the latter failed to do. Plaintiffs then set ahum obtaining quitclaim deeds from the neighbors to accomplish that purpose and sued the defendants for breach of warranty. It appearing that ary actual loss of property to the plaintiffs was practically negligible, the trial lour allowed recovery only for $720 attorneys' fees. will be noted that the new survey line would place the north boundary about 4. 5 feet beyond (north of) the north fence line, which would gain that strip for the subject property; whereas on the south boundary, the new survey line would lose a strip for the subject property. However, on the south side the fence includes a strip beyond (south of) the survey line, which varies in width from 3. 7 to 7. 8 feet. The plaintiffs thus gain on that side by going by the fence line; and similarly on the. east side because the fence line is 2. 5 feet beyond (east of) the survey line. Any deficiency in land on the north side is substantially offset by gains on the east and south. Plaintiff raises no controversy over the north boundary because of the facts above recited: the immemorial existence of the fence, the fact that it had been referred to in calls in conveyances so many years back, and that neither he nor any predecessor in title had ever claimed the property except in accordance with the long established fence lines. In such circumstances we can see no reason why the plaintiff would not have prevailed in any contest with the It neighbors on the east and tfe south. This is particularly so as to the neighbor on the south, Mr. Tad Acki, because- he was a subsequent grantee o! plair.tilt's grantcr, E rark M. Alpaugh. It. was undoubted'. y lor these reasons that it does not appear that Mr. Cri-asrr-. Fad ary ir. difficult irem these neighbors. However, obtaining quitclaim to Mr.Aoki he did pay the sum of $50. - dc-td- s s Defendants appeal or.t ending (1) that there was no breach of and (2) that in any event, the alleged expense of attorneys1 fees by plaintiffs wa neither necessary nor reasonable. c Defendants' argument as to (1) above is that there was no breach of warranty because the plaintiffs had peaceable possession and enjoymert of do not agree. the property without any eviction or hreat thereof. With this w we a th that which there is breach of The majority rule, are in accord, is owr the land that he purwarranty when i! .s sFowr that the grantor did not The cover.arts involved ported to c.orsev by he warranty deed description. are of seizin and of good r ghl to convey the property, which for the purposes considered in this case arc- s vn or vinous . and the breach thereof is made out by a showing that those rights did r.ot exist in the grantor, and it is not However, even necessary to show ar. aitual ovicport or threat thereof. though the grantee is ri.ntlcd to the peaceable possession ar.d enjoyment of the property he purrhas s in accordance with the warranties. he is entitled only to the rijtnagc he sutfers as a result of the breach thereof, but this s as are reasonable and necessary to clear up any taking sue h ir.i wou.d which difficulty represent a substariial tlaw in his title. Prior to 1945 the propeiiy in question was held by Frank M. Alpaugh. He had acquired n as a part of a larger tract in 1920 by warranty deed from R. A. and Clara T ll.wi . The description of the 1920 deed read as follows: w--e - When the foregoing iacts arc considered in the light of the well settled rule cf law that conveyances of property arc to be construed in accordance with the intentions of the parties, the refusal of the trial court to award damages for any deficiency in conveyance of land seems amply justified. The remaining problem relates to the award of attorneys' fees to the plaintiffs in the sum of $720. As above noted, inasmuch as it is shown that there was a technical defect in the title, the plaintiffs would he justified in doing whatever was reasonable and prudent to clear it up; and if this involved the necessity of employing an attorney, the reasonable expense therefoT would be compensable. In connection with the plaintiffs Creasons' projected sale of this property there were other matters of dispute, including whether water rights were to be conveyed; and this record is so uncertain on the questions as to whether the attorneys' fee claimed by plaintiff was necessary andor reasonable in relation tj the difficulty concerning the discrepancy in title discussed herein, that in our opinion justice requires that the case be remanded for a trial and determination of that issue. The judgment is affirmed except as to the remand for that purpose. The parties to bear their own costs. i'-s ;:r P.iwell on Real Pruperty, Sec. 905 il969). Wilson v. Forbes M N. C. 50 ( 1928) ar.d Note, 1. WE CONCUR: E. R. Callister, Jr., Justice 6 2. 125 Am. St. Rep. 443, R. L. Tuckett, Justice ( Schuf! v. Dixor. 20 Ohl.u 112. 227 p. 2d 6 59 ( 1951); Fallcr v. Davis, Oklu. 56, 118 P. tK2 ( 19 i 1) Anderson v. Larson, 177 Minn. 606, 225 N.W. 902 (1929) Fender v. Karr, 262 S. W . 2d 5 39 (Tex. Civ. App. 1953); Russ.-lv belsher. 221Al.t. 560. 128 So. 452 (1930). 4. See Sec. U.C A. 1953: "Such deed when executed as required eftc-claw of a conveyance: in fee simple . . . with covenants the shall have by i. 1 50 A. H. Elicit, Justice . l 57-1-- 12, t from the grantor hit hi- :s lawfully seised of the premises; that he has good . . . that the grantor will forever warrant and de right to convey the fend the title thereol n. the grantee: against all lawful claims whatsoever." - Beginning at a point South and 9th Ensi from the south-ea- st r.orth-we- st 14 of sin-rts- , in center pf intersection of 55th point being 13. 25 chains west innn-- r Sii'ioii of the W, north-ea- st 2 14 of the South, Range 1 Township East, Salt 1 aao thence north along center of 9th East street, 9.20 north 84 cleg, east along line of fence 319.5 feet, tln-nesouth 9.72 chains, more or chj-.ns- ; tfn-nc- Wood v. Ashby, 122 Utah 580, 253 P. 2d 351 (1952); Gardner v. Fliegel, 92 Idaho 767, 450 P. 2d 990 (1969); Hogan v. Blakney, 73 Idaho 274, 251 P. 2d 209 (1952). 6. See Van Colt v. Jacklin, 63 Utah 412, 226 P. 460 (1924). 5. HENRIOD, Justice: (Concurring) I concur for the reason that there was an obvious breach of warthat the grantees were required to clear the title, which they did, ranty, and that the grantors should pay the reasonable expense thereof, - which is the only question to resolve on remand. t |