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of the constitutional guarantees of life, liber- sions of the Supreme Court of the United ty, and property-especially of the privilege States above cited. In Callan v. Wilson, of trial by jury in criminal cases. In the supra, it was urged by the government that draft of a Constitution reported by the com- the requirements of the Constitution were mittee of five on the 6th August, 1787, in fully met where the accused is accorded, at the convention which framed the Constitu- some stage of the prosecution against him, tion, the fourth section of article 11 read that the right of trial by jury. Mr. Justice Har‘the trial of all criminal offenses (except in lan, after referring to the various statutory cases of impeachment) shall be in the states

provisions of the District of Columbia, said: where they shall be committed, and shall be

"These provisions, undoubtedly, secure the by jury. 1 Elliott's Deb. (2d Ed.) 229. But

right of appeal from the police court to the that article was, by unanimous vote, amended

Supreme Court of the District, and a trial so as to read: “The trial of all crimes (ex- | by jury in the latter court. But the fact re: cept in cases of impeachment) shall be by mains that the accused may, under the statjury, and such trial shall be held in the

ute, be tried in the court of original jurisdicstate where the said crimes shall have been

tion upon the issue of guilt or innocence, committed; but when not committed within

and by its juigment, unless he gives security any state, then the trial shall be at such

for his appearance in another court, he may place or places as the Legislature may di

be deprived of his liberty. The police court rect.' Id. 270. The object of thus amending

is not, in such cases, an examining court the section, Mr. Madison says, was 'to pro

merely, but a trial court, in the fullest sense vide for trial by jury of offenses committed

of those words." And, after reviewing the out of any state.' 3 Madison, Papers, 144. In

authorities upon this subject, the learned Reynolds v. United States, 98 U. S. 145, 154,

justice concludes: “We cannot assent to that 25 L. Ed. 244, it was taken for granted that

interpretation of the Constitution. Except the sixth amendment of the Constitution se

in that class or grade of offenses called cured to the people of the territories the

'petty offenses,' which, according to the comright of trial by jury in criminal prosecu

mon law, may be proceeded against summations; and it had been previously held in

rily in any tribunal legally constituted for Webster v. Reid, 11 How. 437, 460, 13 L.

that purpose, the guaranty of an impartial Ed. 761, that the seventh amendment se

jury to the accused in a criminal prosecution, cured to them a like right in civil actions at

conducted either in the name or by or under common law. We cannot think that the peo

the authority of the United States, secured ple of this District have, in that regard, less

to him the right to enjoy that mode of trial rights than those accorded to the people of

from the first moment and in whatever court the territories of the United States." In a

he is put on trial for the offense charged. recent case this same question was again be

In such cases a judgment of conviction, not fore the Supreme Court of the United States,

based upon a verdict of guilty by a jury, is in construing an act of Congress which pro

void. To accord to the accused a right to vided that misdemeanors in Alaska may be

be tried by a jury in an appellate court, tried by a jury composed of 6 persons. In Rassmussen v. United States, 197 U. S. 516,

after he had been once fully tried other

wise than by a jury, in the court of origi25 Sup. Ct. 514, 49 L. Ed. 862, it was held that, under article 3 of the Constitution and

nal jurisdiction, and sentenced to pay a fine the sixth amendment to the federal Constitu

or 'be imprisoned for not paying it, does tion, Congress cannot deprive a person,

not satisfy the requirements of the Concharged with a misdemeanor, of a trial by &

stitution. When, therefore, the appellant common-law jury, and that section 171 of the was brought before the Supreme Court of Alaska Code (31 Stat. 358), in so far as it

the District, and the fact was disclosed provides that in trials for misdemeanors 6

that he had been adjudged guilty of the persons shall constitute a legal jury, is un

crime of conspiracy charged in the informaconstitutional and void.

tion in this case, without ever having been But it may be said that the requirements

tried by a jury, he should have been restored of the Constitution of the United States are to his liberty." fully satisfied where the accused is accorded,

The rule announced in Collier v. Territory, at some stage of the prosecution, a right of being in conflict with the settled decisions of trial by jury; and it was so held by this the Supreme Court of the United States, is court in the case of Collier v. Territory, 2 overruled, in so far as it conflicts with this Okl. 444, 37 Pac. 819, where it was held that: opinion. It follows that the provisions of "A law of the Legislature of this territory, the act of the Legislature depriving the dewhich provides that cases which the justice fendant in this case of a right to a trial by court has power to hear and determine may a common-law jury are repugnant to the Conbe tried before a jury of 6 men, and where stitution of the United States, and therefore it gives the defendant the right of appeal to unconstitutional and void. the district court, where he may be tried by The judgment of the probate court is rea jury of 12 men, is not unconstitutional." versed, and the cause remanded, with direcIt will be seen that this rule announced by tions to discharge the defendant. All the our court is in direct conflict with the deci- Justices concurring.

(17 Ckl. 497)

HIAINER, J. (after stating the facts). SUTIIERLAND et al. T. TAINTOR. It is contended by plaintiff in error that

the parol contract which was made the basis (Supreme Court of Oklahoma. Sept. 6, 1906.)

of this action was void, and nonenforceable SPECIFIC PERFORMANCE-PAROL CONTRACT AS

under the statutes of Oklahoma, and this TO LAND. The courts will enforce a parol agreement

is the only question relied upon for a refor the sale of real estate, where the vendee

versal of the cause. This contention cannot has paid the consideration and taken possession, be sustained. The plaintiff in the court bein good faith, of the premises, with the knowl

low did not rely solely upon the contract, but edge and consent of the vendor, and made permanent improvements thereon.

based his contention upon the ground that [Ed. Yote.-For cases in point, see Cent. Dig.

the contract was fully executed by the plainvol. 44, Specific Performance, § 135.]

tiff, in this, that the consideration was paid, (Syllabus by the Court.)

and that the plaintiff was put in possession

of the premises, and immediately comme Error from District Court, Beaver County; to improve the land and make permanent imbefore Justice J. L. Pancoast.

provements thereon, and hence that the conAction by Fred Taintor against Robert tract was enforceable, although it was mereA. Reiser and others. Judgment for plain-ly a parol agreement, and no note or memotiff, and defendant J. R. Sutherland brings randum was made between the parties at the error. Affirined.

time said contract was entered into. And

this was the finding of the trial court, after This was an action brought in the dis

hearing the evidence that was adduced upon trict court of Beaver county by the defend

the trial. In Ilalsell v. Renfrow, 14 Okl. 674, ant in error, Fred Taintor, plaintiff in the

78 Pac. 118, this court had this question uncourt below, against Robert A Reiser, Ernest

der consideration, and it was there held: “A R. Wood, and the Stockgrowers' National

parol agreement for the sale of real estate Bank of Ashland, Kan. The action was for

may be specifically enforced where there has specific performance, based on an oral con

been such part performance of the contract tract alleged to have been made between

as would make it impracticable to place Fred Taintor and R. A. Reiser on or about

the parties in their original positions, and the 4th day of May, 1901, the consideration

thus make it a fraud upon one of the parties being $361.25; that immediately thereafter

not to enforce the agreement.” And that the defendant in error, the plaintiff in the

"the payment of the purchase money is court below, took possession of the premises,

not alone such part performance of an agreeand began to improve the same. Notwith- ment to sell real estate as will authorize a standing the oral contract with Taintor, the

court to enforce its specific performance. defendant Reiser executed a deed to the land

But part payment and taking possession in in controversy to Ernest R. Wood, on or

good faith, or taking possession with the about August 1, 1901; and it is alleged in

knowledge of the vendor and making valuathe petition that the defendant Wood had

ble improvements, constitute such part perfull knowledge of the contract between Taint

formance as will ordinarily warrant a court or and Reiser, and that he was at that time

in decreeing specific performance of the conin the employ of Taintor. And it was fur- tract.” We think this case is decisive of this ther alleged that the deed was taken by Wood

question, and that the court was fully warfrom Reiser with the intent to defraud Taint- ranted, under the evidence, in decreeing speor. Pending the litigation, the plaintiff in

cific performance. error, J. R. Sutherland, purchased the land

There being no error in the record, the in controversy from the defendant Wood, and

judgment of the court below is aflirmed. All filed his interplea in this action, claiming to

the Justices concurring, except PANCOAST, be a purchaser of the premises in good faith,

J., who presided in the court below, not sitfor a valuable consideration, without notice.

ting. The defendant Reiser being a nonresident, publication service was had as to him. The defendant Wood made no appearance, al

(31 Utah, 255) though personal service was had upon him,

In re PARK'S ESTATE. and no answer was filed by him, and the

IIILTON Y. STEWART. Cause was tried to the court as between the

(Supreme Court of Utah. Nov. 16, 1906.) interpleader, J. R. Sutherland, and the plain

DOWER-CONVEYANCE BY IIUSBAND-CLAIM tiff, Fred Taintor. The court, after hearing

AGAINST ESTATT. the evidence, found the issues in favor of

Rev. St. 18:18, $ 2826, provides that "onethe plaintiff, and against the defendants and third in value of all the legal or equitable esthe interpleader, and rendered a deeree for tates in real property possessed by the husband specific performance of the contract. From

at any time during the marriage and to which

the wife had made no relinquishment of her this judgment the interpleader, J. R. Suther- rights, shall be set apart as her property in fee land, appeals.

simple if she survive him.” This statute be

came effective January 1, 1898, and prior to that Dyke Ballinger, for plaintiff in error.

time the widow's interest was a life estate. PeFrancis C. Price and R. II. Loofbourrow,

titioner asked to have one-third the value of

lands conveyed by her husband without a refor defendant in error.

linquishment of her interest prior to January

1, 1898, set apart, and distributed to her out of her husband's estate. Held, that the widow was not entitled either to have the value of her fee simple or of her life interest in such lands set apart to her out of her husband's estate, as her interest in the property is in the nature of an incumbrance on each specific parcel.*

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Dower, $ 114.]

Appeal from District Court, Salt Lake County; George W. Armstrong, Judge.

Application by petitioner Annie F. A. IIilton against the estate of John R. Park, deceased, S. W. Stewart, executor. Demurrer to the petition sustained, and petitioner appeals. Affirmed.

See 81 Pac. 83.

N. V. Jones, for appellant. Barnard J. Stewart, for respondent.

FRICK, J. This is an application by the petitioner, Annie F. A. Hilton, against the estate of John R. Park, deceased. In her petition filed in the district court, probate division, she makes in substance the following statements of fact: That the last will and testament of John R. Park, deceased, was duly admitted to probate October 20, 1900; that the respondent, S. W. Stewart, was duly appointed executor of said will, and as such claims the right, title, and possession in and to all the property belonging to said estate. That the appellant and John R. Park intermarried at Salt Lake City, Utah, on the 5th day of December, 1872, and that they continued husband and wife from said date until the death of said Park, which occurred September 30, 1900; that she continued a resident of Salt Lake county from the time of said marriage to the filing of said petition. That said John R. Park, deceased, was, subsequent to, and during said marriage, seised in fee and possessed of various parcels of real estate, all of which, together with the value thereof, is fully set forth and described in said petition.

It is further alleged that said John R. Park, deceased, after said marriage and during its existence, between the 15th day of March, 1887, and the 16th day of January, 1894, sold and conveyed the real esstate described in said petition, and that the appellant did not join in said conveyance, nor at any time relinquish her interest in or to said real estate, nor receive anything in lieu therefor, nor any consideration for the same. That the grantees of said Park went into possession of said real estate respectively conveyed to them, and that they and their successors in interest have remained and are in possession thereof, and claim title thereto and to the whole thereof, adverse to the petitioner. That one-third in value of the real estate conveyed by said Park, as set forth in said petition, amounts to the sum of $10,733; that the petitioner, as the widow of said John R. Park, deceased,

is entitled to recover against his said estate the said sum of $10,733, as and for her onethird interest in the lands conveyed by him as above stated; that the estate of said John R. Park, deceased, is solvent, and that said S. W. Stewart, as executor of aid state, has in his possession property of the value of $35,000, undistributed, out of which he can compensate the petitioner for her interest in said real estate.

Petitioner further alleges that in a former action this court determined her status, and adjudicated that she is the widow of said John R. Park, deceased, and entitled to a widow's share in his said estate. Upon substantially the facts, as above stated, petitioner prays judgment, that one-third in value of all the real property, described in said petition, be set apart and distributed to her out of the property of said estate, amounting to the sum of $10,733, with legal interest thereon, from March 1, 1891, and for general relief. To this complaint S. W. Stewart, as the executor of said estate, demurred generally and specifically, which demurrer was sustained by the trial court, and petitioner's application dismissed, and hence this appeal.

While the demurrer sets forth a number of specific grounds, in view of the conclusion we have reached we shall consider and discuss but one ground, namely, that the complaint does not state facts sufficient to entitle the petitioner to the relief asked against said estate. The question, therefore, is : Did the court err in sustaining the demurrer on the general ground above stated? For convenience the petitioner will hereafter be designated as "appellant,” and the executor as "respondent."

It will be observed that appellant in this proceeding does not seek to recover her alleged interest as the widow of John R. Park, deceased, in the specific real estate conveyed by him, but she seeks to obtain the value of one-third thereof out of the property of the estate. In other words, she seeks to recover the value of a one-third interest in a lump sum against the estate of her deceased husband. She bases her claim upon section 2826 Rev. St. 1898, which, so far as material here, reads as follows: “One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him ;

Property distributed under the provisions of this section shall be free from all debts of the decedent, except those secured by mechanics' liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purchase thereof, and for taxes levied thereon." This section forms part of what is known and designated as the "Revised Statutes of Utah, 1898," and

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the laws therein contained were adopted as a

point above statea, nor have we been able Revision of the Laws of Utah in force up to find any. The authorities upon some of to that time and became effective on January the propositions laid down by us, supra, are 1, 1898. From the time Utah was organized quite numerous, and the law as stated in as a territory, with the exception of the the second and third propositions at least period from February, 1872 to March, 1887, seems to be well settled. the common law, or statutes declaratory As to the first and fourth propositions thereof constituted the law upon the subject there is a conflict, and we have determined as of dower in Utah until the 1st day of Jan- therein stated, and, as we believe, in accorduary, 1898, when section 2826, above quoted, ance with the weight of authority. As a went into effect as part of the Revised matter of legal history of which we, in comStatutes aforesaid.

mon with all courts, take judicial knowlA brief history of the law upon the subject edge, the law giving the wife an interest in of a widow's interest in the lands of her her husband's lands has not only existed in husband is given in the case of Annie F. A. some form, either statutory or according Hilton (this appellant) v. George W. Thatch- to the common law, before and since the er et al., 88 Pac. 20 (decided this term) to formation of our government, but it has which case we refer for a detailed statement frequently been the subject of judicial inrespecting the law, with its various changes quiry in this country in all of its phases upon that subject. In view of the law as for nearly if not quite two centuries. The there stated to be we held in that case: (1) fact, therefore, that no adjudicated cases can That the right to an interest by the wife in be found upon the precise point involved in the lands of her husband, owned by him this case is a circumstance from which an during the marriage, was continuous from inference is permissible, more or less strong, March 1887, to the present time; (2) That that no one has heretofore attempted to rethe measure of that right must be ascertain- cover the wife's share in the lands of her ed from the law in force at the time aliena- deceased husband conveyed by him during tion took place by the husband without the the marriage without her consent, out of his consent of the wife; (3) That the right it. estate, instead of having recourse to the self to such an interest must be determined lands so conveyed. While this fact may not by the law in force at the death of the be conclusive respecting her right to do this, husband; and (4) That the estates of dower still it is a very important factor to be conand courtesy, as such, were abrogated by the sidered. In the absence of judicial authoradoption of section 2832 of the Revised Stat- ity, we must therefore seek for a solution utes of 1898, but that, by the adoption of

by having recourse to general principles as section 2826, the right itself was continued deduced from statutes and other laws upon in force as an enlarged estate or interest. the subject. Does section 2826 give such a Prior to the enactment of section 2826, the right? We think not. Counsel for appellant widow, upon the death of her husband, was

lays much stress upon the wording of that entitled to a one-third part of all lands of

section in that it says "one-third in value" which he was seised during the marriage,

shall be the wife's interest. This of itself and the extent of such interest was a life added nothing at all to her interest. At comestate, while under that section she is en

mon law all courts in distributing the wife's titled to one-third in value of the lands so share always sought to fix it as nearly as owned by him, or in which he has an equi- | possible in each case at one-third the value, table estate, the same to be set apart to her

even where the same was set off to her in in fee simple. We thus have an enlarge

kind. To have done otherwise would have ment of the widow's interest becoming effect

been a farce not to be tolerated by any court, ive, as we have seen, January 1, 1898. Prior But the statute does not say that this oneto that time her interest terminated as at

third in value shall be set apart to her out, common law, at her death. It will further of the estate of the husband, but the statute be seen by an examination of the petition says "one-third in value of all the legal or that all the lands involved in this action equitable estates in real property possessed were alienated by appellant's husband after by the husband at any time during the marMarch, 1887, and before January 1, 1898. All riage

• shall be set apart as her of them were therefore conveyed while the property in fee simple if she survive him." wife was entitled to a life estate only. Not- This refers to the land itself that was poswithstanding this fact, she seeks in this pro- sessed by him during the marriage, not to ceeding to recover the full value of the in- any kind of property that may be left by him terest in said lands given her under section

at his death constituting his estate. More2826. Whether or not she can legally recover

over appellant's counsel concedes that the this interest is the question to be determined.

law in force at the time of the husband's conNeither the appellant nor respondent, veyance controls as to the measure of the as was frankly admitted by their counsel on wife's interest. If this be so, in case the law the hearing of this case, have been able to is changed after conveyance, and before the find any adjudicated cases upon the precise

death of the husband, so as to enlarge the wife's interest, how can the wife claim the enforceable interest and incumbrance in her enlarged right against the husband's estate favor. any more than she could against his gran- While it is true that her right to an intee?

terest accrues only at the death of her husUnder the law as it was at the time of the band, yet, in view of the constitutional conveyance the husband had a legal as well limitations under our form of government, as a moral right to transfer his entire inter- rights become vested in accordance with the est. This interest consisted of the fee to law in force, by enforceable obligations, at the land, except that it was encumbered by the time such rights are created, and all are the inchoate interest of the wife. In case bound by those limitations alike. To atshe survived him she thus had and could

tempt an exception in favor of the wife have no greater interest in the lands con- would nullify this salutary provision of our veyed by him than the law gave her. The Constitution precisely the same as if it Legislature, by adopting section 2826, could were attempted for any other purpose. See not nor did it attempt to enlarge the wid- 14 Cyc. 977-980, where the usual procedure ow's interest in then alienated lands. What and form of action is given for the recovery could not be done directly we do not think of dower or the substituted statutory incan be or was contemplated to be done in- terest in lieu thereof. The decisions of the directly. But if appellant's contention is various state courts upon the subject are resound, the Legislature accomplished by in- ferred to therein, and so far as we have direction what she concedes they could not been able to ascertain nothing is contained in do directly. We cannot yield our assent to any of them that is contrary to the views ex. this contention, but feel constrained to bold pressed in this opinion. Section 2826 does that the wife, if she desires to recover her not, nor has any law in force at any time, interest in her husband's lands alienated by either in the territory or state of Utah, ever him during marriage, without her consent, conferred upon the widow the right to take must resort to the lands themselves, and the value of her interest in the husband's that she can recover such interest only as lands out of his estate. No doubt this may the law gave her at the time the lands were be consented to by all who have an interest alienated by the husband. In all lands pos- in the estate, but what is demanded in this sessed by him at the time of his death, and case is that this be accorded as a matter of in all that were alienated by him under the legal right; this right is what this court is law as it stood at the time of his death, she asked to declare to exist as a matter of law, takes her interest in accordance with that and this, as we have attempted to show, the law. It must not be overlooked that the in- law does not sanction, hence we cannot choate contingent interest of the wife in her grant it. The court, therefore, did not err husband's lands is in the nature of an in- in sustaining the demurrer. cumbrancce which may or may not become The judgment is affirmed, at appellant's an absolute and enforceable right dependent upon the one fact that she survives her husband. This incumbrance is against the land,

McCARTY, C. J., and STRAUP, J. concur and exists against each specific parcel while the right remains inchoate. Neither is the right changed when it becomes vested and enforceable upon the death of the husband,

(31 Utah, 262) so that it may be shifted at the pleasure of

RICHEY V. BEUS. the wife from one parcel to another, or

(Supreme Court of Utah. Nov. 10, 1906.) against one grantee, and not against another. The interest of the wife is in the land itself


ACQUIRED TITLE. to be apportioned to her one-third in value

A decree, enjoining plaintiff from entering out of each parcel.

on defendant's land, will not prevent plaintiff The right to an interest exists, if it exists

from bringing suit to modify such decree on a at all, by virtue of the law, and not by virtue

subsequently acquired right of way to enter on

defendant's land to repair a water pipe located of contract, and hence must be enforced ac- thereon, such decree only determining the rights cording to the law that gives the right to of the parties up to the time when it was rensuch interest. Counsel for appellant sug- .

dered. gested in his oral argument that if we found

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 30, Judgment, $8 1090, 1115.] that the wife could not recover the enlarged share out of the husband's estate, she might


FICATION OF DECREE IN INJUNCTION SUST. still be entitled to the lessor under the peti- A suit to modify & decree restraining tion, since the lesser is included within the plaintiff from entering on defendant's premises greater right. But we are of the opinion

on the ground that plaintiff has secured since that she cannot recover either, against the

the rendition of that decree a right of way, over

defendant's premises is essentially an original estate of the husband, and for the same action to quiet title. reasons, namely, that her right is against the [Ed. Note.-For cases in point, see Cent. Dig. land against which it constitutes a vested and vol. 41, Quieting Title, $ 1.)

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