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Show MONDAY, APRIL 15, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE NINE IN THE SUPREME COURT OF THE STATE OF UTAH Continued from Page 8) The following persons TUCKETT. Justice; On the issues railed by the third-par- ty complaint of Shirley Gaye Coyne and the answer of Allstate Insurance Company, the third-part- y defendant, the court below granted Allstate 's motion for a summary judgment and denied the motion of Shirley Gaye Coyne for similar relief. From the ruling of the court the third-part- y plaintiff appealed, The named insured with respect to the owned 1. automobile. Any resident of the named insured's household with respect to the owned automobile. Any other person with respect to the owned automobile, provided the actual use thereof is with permission of the named insured. Any relative with respect to a private not or automobile trailer passenger regularly furnished for use of such relative. 2. 3. William Coyne, Sr. , ia the named insured under a liability insurance with Allstate Insurance Company. He had carried insurance with policy Allstate for about 20 years on his motor vehicles. William J. and Shirley of the named insured. William Coyne are the son and daughter-in-la- w Coyne, Sr. lived in Corte Madera, California. William J, and Shirley 4. lived in Petaluma, California. non-own- Automobiles Covered (Page 2. Prior to the marriage of William J. and Shirley, William J. had owned and operated various automobiles which had been covered by the father's insurance policy with Allstate. J. and Shirley Coyne purchased a Ford a truck from dealer in California. William Coyne, Sr. , loaned Ranger his son and daughter-in-lathe sum of $1, 000 as a down payment and also became a guarantor on the financing papers. Three or four weeks after the purchase of the truck, William J. and Shirley sold their home in California and moved to Murray, Utah. Out of the proceeds from the sale of the home William J. and Shirley repaid the loan to William Coyne, Sr. The truck was registered in the name of William J. and Shirley in the state of California, and after moving to Utah the truck was in the same names. William Coyne, Sr. told his son and daughter-in-lathat he would take care of getting insurance for them and William J. and Shirley took no steps to obtain insurance . w . After the accident, William Coyne, Sr. ,. went to the office of an agent of Allstate Insurance Company in California and took the necessary steps to have the Ford Ranger added to his policy. The secretary at the agent's office, at the request of Mr. Coyne, dated the form used as of June 28, 1972, and also gave Coyne a letter to the effect that the insurance was effective as of that date. Mr. Coyne was billed for the premium due for the added vehicle, and he has paid the same. The premium for the addon vehicle was not returned by the company. The third party plaintiff claims that Allstate has breached its contractual duty by denying her coverage under the policy issued to William Coyne, Sr. She also seeks a judgment against Allstate for the amount of any judgment entered against her as a result of the accident she was involved in. -- The policy of insurance we are here concerned with contains the following language: Quiet Title Case Reversed and Remanded Virginia B. Memmott, Emarie Memmott Richardson and Kathleen Memmott Peterson, v. 14, ..." those wards who had attained their majority. See Bancroft Probate Practice 2nd Ed. Section 1436 at page 404 and Section 1437 at page 409. unless and The statute of limitations does not run between until there is manifested a determination on the part of the one in possession 1 to exclude the other A contract of purchase is not a written instrument under which color of title can be based in order to gain title within seven years pursuant to 2 - Allan E. Mecham, Clerk ELLETT. Justice: co-tena- nts co-tena- The plaintiffs appeal from a summary judgment quieting title to some realty in defendant Bosh. Section In a divorce case Virginia Memmott, the wife, and one of the appellants interest in and to the real property in question. herein, received a one-ha- lf -was one half The other given to the five minor children of the parties to the interest as tenants in common divorce suit, so that each child held a one-tenthe interests of the mother and mother. with their and other with each Only th two of the children, Emarie and Kathleen, are involved in this appeal. From the pleadings and affidavits on file it is made to appear that Virginia was confined to the state mental hospital in 1943 and treated for schizophrenia, paranoid type; that the divorce proceeding caused her condition to worsen, so that on August 10, 1954, she was incompetent to manage her affairs and that on said date she entered into a contract of sale of the realty to the defendant; that she was recommitted to the state mental hospital for treatment July 18, 1955, and discharged in March, 1957, but was kept on probation for six years; that she attempted to rescind the contract of sale to the defendant on a claim of incompetency on February 26, 1956. It further appears that the defendant has been in exclusive possession of the property since August 11, 1954, and has paid all taxes thereon and has made improve- ments thereon. As to the claims of Kathleen and Emarie it is clear that they became of age as follows: Emarie on December 12, 1956, and Kathleen on October 22, I960. They had a guardian during their minority, and on October 3, I960, the defendant offered in writing to buy the interest of the minor children for the sum of $1, 000 payable in installments. On October 28, I960, the guardian filed a petition for confirmation of sale, which came before the court on November 14, I960, and was continued to January 10, 1961, and was finally heard and granted on March 8, 1961. A guardian's deed was issued August 19, 1965. This suit was commenced by Virginia and Emarie on September 17, 1971, to restore plaintiffs to possession and to quiet title in them to interest in and to the realty. Later Kathleen was made a plaintiff interest in the realty. and claimed an additional The defendant claims title by reason of adverse possession and asserts that there are no disputed issues of material facts and that as a matter of law she is entitled to the summary judgment as rendered. six-tent- hs one-ten- th think there are genuine issues of fact to be resolved: 1. On August 10, 1954, was Virginia competent to enter into the contract of sale? 2, Has the statute of limitations run against the appellants? 3; Are the appellants estopped to deny that title is in the respondent? In the absence of an estoppel the defendant cannot prevail over the We Hayes v. Robertson, 20 Utah 2d 18 6, 435 P. 2d 925; Farmers Insurance Exchange v. Smith, 15 Ariz. A pp. 42, 485 P. 2d 866. interests of Emarie and Kathleen for the reason that when a minor attains majority status the guardian has no further rights in the estate and only has a duty to account to or to make a settlement with his former wards. Section U. C. A. 1953, provides: "The power of a guardian of a minor shall be terminated: first, by order of the court; second, by the ward's attaining 1. At the time the guardian attempted to sell and at the time of filing the petition for confirmation, he had no authority to dispose of the interests of April 4, 1974 Defendants and Respondents. . The sole question to be determined in this case is whether or not the vehicle here in question comes within the policy definition of "additional automobile. " After a careful consideration of the terms of the policy above referred to we must conclude that no coverage was afforded Shirley Coyne, the third-part- y plaintiff. The fact that Allstate did not refund or tender the additional premium charged William Coyne, Sr. , can make no difference here inasmuch as rescission was not requested, and in any event, that matter is solely between the named insured and Allstate. The decision of (he couri below ib dfiirmed. Respondent is entitled to costs. majority; FILED Hazel Bosh and The State Of Utah Department of Social Services, Division of Family Services, The trial court, after considering the answers to interrogatories and the depositions taken and published in the case, found and concluded that the vehicle in question was purchased by and in the names of William J. and Shirley Coyne and that it was never owned by William Coyne, Sr. , the insured! The court further found that William J. and Shirley Coyne were not residents of the William Coyne, Sr. household at the time of and after the purchase of the automobile. The trial court also found there was insufficient evidence to show that the coverage on the vehicle in question was obtained prior to the date of the accident. 75-13-- No. 13316 Plaintiffs and Appellants, of the Policy) Payment of Premium If the named insured acquires an additional automobile, the premium shall be adjusted as of the date of the delivery of such automobile. The named insured shall pay any additional premium required. red On July 9, 1972, Shirley Coyne, while operating the Ford Ranger was involved in an accident which resulted in fatal injuries to the truck, driver of a motorcycle, one Melvin Ray Mitchell. 2 ed "additional automobile" means an additional private passenger or utility automobile of which the named insured acquires ownership, provided notice of its delivery be given to Allstate within the policy term then current, or if delivery is within 30 days before 'the end of such term, then within 30 days after delivery; (c) On May 5, 1973, William w are insured under this Part. 78-12- U. C.A. 1953. -8, As against Emarie and Kathleen the seven-yeperiod svould begfei to run only from the delivery of the guardian's deed, which could not be prior to August 18, 1965, the date of execution of the deed. ' This suit was .commenced within seven years thereafter, to wit, on September 17, 1971, which would be five years, eleven months, and twelve days after the execution of the deed. The question of whether the statute of limitations has run against , Virginia would depend on whether and when, if at all, she became competent, since the period of incompetency is excluded from the running of the statute. Also the question of whether Mrs. Bosh has complied with the requirements of Section U.C.A. 1953, should be determined, since her possesfounded not sion is upon a legally sufficient written instrument. At trial there will be other issues if these appellants prevail, as they now claim they can.. At least there are material issues which cannot be determined by summary judgment. The summary judgment is reversed and the case remanded for further proceedings not inconsistent with this decision. Costs are awarded to the ar so-call- ed ' 78-12-- 11, appellants. WE CONCUR: Jr., Chief Justice F. Henri Henriod, Justice R. L. Tuckett, Justice 3 Am. Jur. 2d, Adverse Possession, 173. Central ?ac. R. Co.v, Tarpey et al. , 51 Utah 107, CROCKETT. Justice: (Concurring specially) E. R. Canister," 1. 2. , 168 P. 554 (1917). I concur in the decision except: It seems to me that the possession of the property by Mrs. Bosh, and her claim of ownership therein, was founded upon "written instruments, " to wit, the contract of purchase; and the deeds. I think that mere are circumstances in which possession and claim of ownership under a contract of purchase would be deemed color of title against adverse third parties. See 2 C.J. S. , Adverse Possession, Sec. 93, Note 39, citing cases including Cooper v. Carter Oil Co., 316 P. 2d 320, 7 Utah 2d 9; also in accord, see 3 Am. Jur. 2d, Ad erse Possession, Sees. Ill and 120. With the above reservations, I concur with the decision and the remand for a plenary trial of the issues, including those correctly identified and set forth in the main opinion. t |