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Show TUWNSEXD HOUSE CASE. Justice, Law. Eqaiiy and Right for Ail Parlies. That is, Mrs. TowDsend Doesn't get Away with What is : Not Hers. The Alleged Contract between Her and Townsend Held to be of Non-Effect in Law. Decree by the Chief Justice In Favor of the Defendants, Hooper and Jennings. Elizabeth II. Toytxsesd ) . I it. H. Hooper, ! rt'u, Jbkxxsgb, f Bouvab Robebts and I Jasies Towksbmd. J j Attorneys for Plaint ifl Sutberlani, Brown and VanZiJe. AttorneyB (or Defendants Roeborougb & Merriti and WiiiiiimB & Young. I do not propose to discuss the evidence evi-dence al lengtb in order to vindicate the conclusions at which I have arrived, but merely to state what tbey are, nor do I propose to more than refer to the BOcial relations existing between James Townsend and Elizabeth Eliza-beth Townsend. James Townsend bad at the time the alleged contract was made, a kgal wife living, and from whom he was not divorced, and who then lived with him as such wife. The plaintid was then living wiib him as bis plural wife. Under the law no euch relatione can be recognized, and in pssi.ng upon the questions involved in this case I will lake no notice of tbe fact that ehe sustained teat relation. 1 wui treat her as one not tbe wife of J amen Townsend. The law uo treats her, and from her evidence, she apparently so bolda herself. lu the year 1S66. James TownEni went iuto the occupancy of the property known as the Towuoend Hcu3e. He took with him bis legal wife, Susan, and the plaintiff, Elizabeth Towueeud, as his second or plural ttife. He then began tbe business ol keeping a hotel, living there with tnese two women, one as his legal wi!e and the otner as nis polygamous sometime in the year 1SG7. Sometime Some-time in that year be touk a second polygamous wife. I he testimony develops tbe fact that up to the announcement of this purpose, plain tiQ, and delendant James Townsend demeaned tbemeelves towards each other as man and wife, and were rapidly building up a prosperous business she performing tbe duties ot a landlady, and he that of landlordof land-lordof the hotel. The legal wife being old and infirm took no part wbatever in any of the afLtirB. When the purpose ol the defendant James Townsend was made known to the plaintiQ she made objection to it, and threatened him with a divorce aud ttiat sbe would leave him it be carried his purpose ioio tflect. He was determined deter-mined logo into another polygamous relation, and it was then that the alleged con'ract was made, and this contract was in effect, that if the plaintiM would continue to iive at the Townsend House aud attend to the duties as she had theretofore, the defendant, James Townsend, was to convey to her one-half interest in tbe real and personal property, and sbe was to have one-balf in all the profits. Tbe defendant Townseod testifies in relation to tbe contract about as follows fol-lows : "I took a second plural wife September 14th, 1S67, without consent con-sent of plaintiff; contract wfts entered into in 1867; when I married my third wife plaintiff waB opposed to it; sbe wanted to oiviae me property, to have a certain proportion set over to her. I agreed with her that if sbe would stay and run the house as Bhe had done before I would convey to her one-half interest in the whole conoern, and she should have one half of all we could make. Sbe agreed to do it, and did do it." Tbe plaintifi testifies to about the same purport, auJ at least two other witnesses testily that Jamos Townsend i had, on divers other occasions, and long prior to the institution of this suit, repealed to them that such a contract was made. From the testimony I do not doubt this contract was made. Two of trie witnesses who have sworn to it, are uninterested parlies aud are uuim-pe.iched, uuim-pe.iched, and the defendants Hooper aud Jennings ofler no testimony tending tend-ing to contradict it. To all the world, tbe plaintifi and defendant coutiuued to bold tbem eelves out as man ano wire, xoey 00 cupied together the same sleeping apartments, and from aught that appeared ap-peared to the contrary, the fact that be bad taken a second plural wile made no difference in their relatiors. He continued (0 act as landlord, and she as landlady. Tbe testimony sbows that iu ber capacity of landlady she was laitblul and assiduous, and that in all things, save peruaps in the management of the finances, and the duties in and about the office ol the bote), she was tbe principal aud ohief manager. Tbe guests went to her for their wants and tbe servants looked to ber for tbeir orders and employment. In fact, it is pretty evident Bhe was tbe ruling spirit about the house. Tbe business appears to have been profitable, and money was made. When the alleged contract was made, tbe title to the real estate in which was Biluate the Townsend House was in tbe United States. Under the act of congress of March 2, 1507, 14 Statutes at Large, 541, it was, with other property in Salt Lake City, entered at tbe general land office in the manner and for the pur poses provided in said act, by the mayor of Baid city, who by an instrument instru-ment of writing, purporting to be a deed, and bearing date the day of Mav, A.D., 1S73, attempted to convey con-vey to James Townsend tbe legal title. 1 The answer Btatea that James Townseod, in toe year 1S6S, borrow of tbe defendant Hooper $10,000, and to secure tbe same executed two deeds of trust on tbe properly known as tbe Townsend House ; that this indebtedness in-debtedness remained unpaid up tu, September 24, 1ST it, when, with in-1 tpret,it amounted to the sum ol $12,-500; $12,-500; that ou sa!d last dale new notes were given, two for $- 000 each and one for 2.500, and a new deed of trust was given conveying the ame property prop-erty to Lewis 8. H.ii; and Horace S E dredge, as trustees-intrust, cn-diiic-neU with apt provisions (or toe payment of Slid no'.ea according to the terms thereof. 2 Inat on the lSlb day of Sep- tcQjhcr, 1S75, eid Jimfs Towus-ei-d made h'u note Jcr $2,o(.J, piynbte to '.he order of C. C. Cunnioyaam, and to secure list- o.-ime execute-d a mirl-t:fls;e mirl-t:fls;e on ;be caid premises. S-That on tbe lOta of (Xlber. 1S76, rad Jhttes Towniend matfe bis note for $5,000, payable to the order of Bchvir iRjberts, and to se cure the same executed a mcite ou tne said premises. 4 Tbat on the Sth dv of February, Febru-ary, 1S7S, said James Townieud leased the said premises for term of two years to said C. C. Cncniufibm. 5 That on the 11th ol March, 1S7S, a judgment wsb obtaiued against James Towsecd .n tavor of dt-Iend--m Jennings lor $2,Sc2 75, and costs $22.44. 6 That on the 12th of March 187S, a judgment was oblaiced against James Townsend in Uvor ol tne Deseret National Boi.k lor $1,336 Si. and $72.20 costs. Tbe note to Kubert fur $5,000 and the mortgage to secure tbe same, wsa translerred by aid Roberts to enid Jennings, and b&s received a credit on it of a part o: tue proceeds of tbe Bale ol the premises. The leae to Cunningham was on the 21st of February, 1S7S, assigned to Roberts, and was by Roberts, alter the sale, surrendered to Jennings. Tbe note of $2,500 to Cuoniugham ! had been reduced by payments mad a by James Townsend, leaving a balance bal-ance of $1,000 due thereon, and was transferred by said Cunningham to defendant Roberts, and afterwards by Roberts to Jenuiugs, who trans (erred one-half thereof to defendant rfooper. The judgment in f.vor ol the Deeeret National Bnk wns trans-terred trans-terred to Jeuoiuj;B And Hopper. Thus it will be seen that Hooper apd Jennings became the holders of all the liens on said property. On April 10, 1S7S, the property was sold by the trutees, HiiU and Eldredge, to defendant JeDuiu lor lor tbe sum of $22,500, aud on trie 13th of April, 1S7S, they conveyed 10 said Jennings all tbe estate the said James Townsend had therein on the 24'.b of September, 1S73. Tbe ruling question in tbe ease is, what was the nature oF the title the defendant Jitmes Townsend had in ; tbe property at the time the alleged contract was entered iuto aud at the time Ibe deed of trust was given by him to secure the $10,000 borrowed from Hooper in 1S6S. Tbe proofs in tbe case show that defendant Townsend became ti.e pur-nhasfir pur-nhasfir of this oronertv from Dirties who bad occupied it for a number ol years, and whose ownership had been recognized as superior to the rights of alt others, except the United Slates. In a recent caso decided by the Supreme court ot the United Stales, the court in referring to tbe nature ot a title similar to this, speaks of it as an inchoate right to the benefits of the townsito law, in case the property should bo purchased from the United States by the corporate authorities, under the provisions of that law. The act of March 2, 1867, 14 U. 3. Statutes, 541, provides that the land so eettled and occupied for a townsite, may he entered at tbe laud office in trust for the several use and benefit oi the occupants thereof, according to tbeir renpective interests, and tbat tbe executiou ot the trust thall be conducted under such rules and regulations as m.iy be prescribed by tbe legUlaiive authority of tbe state or territory. The legislature legis-lature of Utah enacted that the lands so acquired in trust Bhould be con-vpyed con-vpyed to the "rightful owner of possession, pos-session, occupant or occupants," or to such persous aa might be entitled to . the occupancy or possession. lComP' Lws, S81.) The Supreme court of tbe United States, in the case of Cofield vs. Mo Clelland, 16 Wall 334, being a case arising under a law of the territory of Colorado, similar to the law of this territory, held that the act ol congress at the lime tbe entry was made were occupants or entitled to tbe cc-cupancy. cc-cupancy. At the time the entry of the lands in this case were made, under the act of March 2, 1S67, above reterred to, James Townsend and the said Eiizv-betb Eiizv-betb Townsend were living upon the lands and occupying them as hereinbefore herein-before nlated. Section S of the Utah territorial act enacts aa follows: "Each and every person or association or company com-pany of persona or corporation?1 claiming to he the rightful owner of possession occupant or ocupints, or to be entitled lo the occupancy or possession of such lands, or to any lot, blcck, share or parcel thereof, shall within sx months after the first publication of Biich notice, (being tbe notice provided for in section three) in person or by his or ber or their agent or attorney Bign a state- uivu tu ""(, curate description of the particular Darcel or parte ol land in which be, she or they claim to have an iutere?t, and tbe epecifio right, interest or estate therein which he, she or they claim to be entitled to receive.and de liver tbe earno to the clerk of the probate court of the county in which such town or civy is situated, and the clerk of said court sbali enter such etalement in a book to be kept for that purpose, and file and preserve1 tbe eame in his office, noting tho day of filing. The filine of which statement shall be considered nolice to all persons claiming any interest in the lands described tbercin, of tbe claim of the party filing the same; and all persons failing to make and deliver such atalement within the time limited in this section, shall be forever barred tbe right of claiming or recovering such laud, or any interest or eeta:e tuerein, onn any pari, parcel or share thereof, in any court of law or equity." Adopting the langUBneof the Sjprcme court of the United Slates in the case of Cjfield r. McClelland, No language could be more explicit to make the failure to deliver the statement within the lime specified a bar. an absolute bar, to the recovery of the same, however strong might be ibe equitable claim to tbe laud so lost. II, therefore, Mrs. Townsend bad any right by virtue of ber jjint occu pancy ot tbe land described in this esse and the contract, and Bhe did not assert it in tbe manner provided by tbe lowneite act, she narred. In ber testimony she says tnal she did not make any move to awert her right I under tbat law because she bad the most implicit confidence mat trie defendant, de-fendant, James Townsend, would lake rare ol her interests, and the fact that JameB Townsend received the mayor's deed, or what purports lo be a de-ed, ?hows that be proved up his occupancy occu-pancy and his rigijt thereto. The rig-t which the p!;nt;8 and dc-fer.dant James T:wnaerd bad w .is the Supreme Court of the United States hu decided an mcinale ngui :n ine benefit cf ti.e townsite iaw, in cae tbe properly ehouid be purchased from the lfn:td Stilts by tbe cor-1 cor-1 porate author' t'fs under 'be provisions provis-ions o! the law. Tne rifiht was not : tbe land, but in the benefits of t:e tewnsite law, and tbat, too, dependent depend-ent upon tne act of purchase by itic corporate authorities Tbe right ws not an equkable right in tie property. James Townsend hsd co right in fqaity to tee property as against the title by the government. The government gov-ernment held the ieal title, but it crettd a privelege in favor of an occupant oc-cupant as against outside parties, ieavmg the question oi tbe determination determi-nation cf the superior occupancy ;o be determined in the manner provided pro-vided by law by the probate court. L'otil tbe act of ecrgrtss created the trust in favor of tho-e wr,o at tbe time the entry was maie wtre occupants or entitled to the occupancy, they ouly bad what orght cecal 'fed nik:d pcesesfiou. Coot;re?s ?s.w fit to nrcrg-nize nrcrg-nize that mere naktd pnsoiou, aua provided a means wherehy, because of tht- possession, an absolute title ni;gi;i bo aoquired. Py the custom of the country, this mere nak?.1 possession hud come to be recognized, ns j right between individuals and as such was respected by the cit;z:-js, and was tht subject of bargain and saie, and o.' contract. Wnen the contract w.s I made between the plaintifi and James Townsend, he bad only this naktd I possession, and it was to it, so (ar as ; the real estate part ol it is concerned, tbat tbe contract was msde, and being be-ing there in possession with bim, tbat (act together with his agreement to give her one half ol it, made ber an owner of an undivided half. She thereby became the owuer of an inchoate in-choate right to the benefits ot the townsite act, and it was as neccs-ary tor ber, as it was tor James Townsend to assert that right in the- manner provided by law, if she desirfd m ob tain tier absolute title. Her contract with Townsend and her occupancy give her a right tu cUim tiiat t-he ws pvrscu claiming to be the rightlnl owi.er or prssessicn of an undiwdtd bail ot the land, and had bhe 1fi-.de her claim and presented htr proofs then, she no doubt would hate been decreed to be such. She failed to do this, and having failed what is the ' result? JuH what the statute says shall I be tbe rtsult. She is forever barred tbe right ef claiming or recovering such land or any inteieat or estate therein or in any part, parcel or share thereof in any rourt of law or equity. 'lhat James Townsend proved faithless, faith-less, bo far as her confidence in bim is concerned, when he (ailed to take care of her interests and secured to himself alone the title, is no answer to ber failure to proceed according to law. There was no change in the relations rela-tions of the parties between the date of executing the first deed of trust and the second. Frior to the new deed of trust, James Townsend bad acquired tbe right to the mayor's deed. It was claimed in the argument that, this new deed of trust bad relation back to the original, and was of no more force than it. I do not think if such were the fact, it would make any difference, aud if it did it might be urged to answer tbat there was a decided change in the title rights of tbe delendant James Townsend. When the new deed of trust wae made he was owner of the fee simple title. The mayor's conveyance is dated in May 1S73, and the Bew deed of trust bears date September 1S73. I do not consider tbat tbe want ot witnesses to the mayor's deed to James Townsend has any influence, i The deorpe of the probate court establishes bis title The conveyance made by tbe mayor is siuip y to carry out the decree, and if it be defective for the reasons claimed, that delect can be cured. "It is held both in England and the United Stales that actual and unequivocal une-quivocal possession is notice, not bo much because it justifies an inference tbat the purchaser is aware of too title cumbeut on one who is about to pur-cuose pur-cuose real estate to ascertain by whom and to what riht it is held or occupied; occu-pied; and it is well eUied that to be etleciua! as uotice, pusiessiou must be eufiicieuUy distinct aod unequivocal to put tbe purchaser on his guard." The pecular relations existing between the defendant James Towusend and tbe plaintifi were not euch aa to be of thedislinct ur.d unequivocal kind re-, quired by the authorities. Iu all business of the kind carried on as in the hoit-l in this case, the presenco ol a LoiHtket-per is required, whose duties wouli be uo more than tne the plaintifi assumed and performed ar'out the Towneud House; and ber position, takeu of tier own volition, ay tbe plural wife of James Townseod, would he Bpt to !eve a purchaser to estimate her in the capacity of wife and housekeeper, rather than aa oc cup an t under some contract rights Mar nwiiimni'i' can hu rnnfidprrd iu no other light than ar au ambiguous am-biguous or mixed possession, and one .which Bhe having voluntarily eurued and designedly held nr. to the world, maae it incumnent upon her to show her title, rather than upon a purchase: to suspect and fiud tt out. These defendants, Hooper ond Jennings, Jen-nings, cannot, in ray opinion, under all the circumstances, be held to tnc strict rule which required them to investigate in-vestigate the title, other tbau what appeared of record, and that, therefore, there-fore, they are bona fide purchasers without notice. It is unnecessary to go further into the question whether tue detendants Hooper and Jennings aro bona jlt purchasers of the real estate, ai against the asserted title of Mrs Town-end, for if I am correct us t( tbe effect of the townsite law upon lie; title it was but by her own lacucB anu muuuv uo okiw ",d r" ceediog. And il the position is the true one. the aame may be said as to any rigSits the defeudfinta Hooper aod Jpnningt bavo acquired under the other trior t-g(te t-g(te and judgment. |