By a final decree of the district court of the Fourth judicial district of the territory of Utah, a contract for the sale of certain land, made March 27, 1890, between L. B. Adams and W. N. Shilling, on one side, and Edward A. Reed and H. H. Henderson, on the other side, and three promissory notes given by the purchasers, together with a mortgage executed by them to secure the payment of such notes, were adjudged to be null and void.
It was also adjudged that Henderson and Burgitt (the latter having become guardian of the person and estate of Reed, who was incapable of conducting his own affairs) recover of Adams and Shilling the amount paid by Henderson and Reed on the agreed price of the land purchased by them from Adams and Shilling.
The decree was affirmed by the supreme court of the territory (40 Pac. 720), and the case is here for review upon the appeal of Adams and Shilling.
The material facts out of which the case arises, and which are embodied in a report of a special master in chancery, are as follows:
In March, 1890, Shilling and Adams, in response to an inquiry made by Reed and Henderson, stated that they owned and had a good, indefeasible title in fee simple to 440 acres of land lying a few miles west of Ogden City, Weber county, Utah territory.
The lands referred to-as as understood by all parties at the time-were the E. 1/2 of section 9, township 5 N., of range 2 W. of the Salt Lake meridian, the S. 1/2 of the S. W. 1/4 of said section, and the N. E. 1/4 of the S. W. 1/4 of that section.
Reed and Henderson had not at that time seen the land, and had no knowledge as to the title. But Shilling and Adams promised that they would furnish an abstract of title. Reed and Henderson, relying and acting upon the representation of Adams and Shilling that they had a good and indefeasible estate in fee simple to the lands inquired about, without investigation the title, purchased an undivided two-thirds interest in the 440 acres for the sum of $7,333.32, of which one-third was to be paid, and was paid, in cash, and time was given for the payment of the balance, with interest. They would not have made the purchase if they had not believed the above representation as to title to be true.
On the 27th of March, 1890, Reed and Henderson received from Adams and Shilling a deed of general warranty for the following land: An undivided two-thirds of the E. 1/2 of section 9, township 6 N., of range 2 W. of the Salt Lake meridian, of the S. 1/2 of the S. W. 1/4 of that section, and of the N. E. 1/4 of the S. W. 1/4 of the same section, in Weber county, Utah.
The land contracted for, it will be observed, was in township 5, while the land actually conveyed was in township 6. But the grantors intended by the above deed to convey an undivided two-thirds of the land in township 5, and the grantees supposed that the estate embraced by the conveyance was that which they intended to purchase. But, by mistake of the scrivener, the premises conveyed were described as lying in township 6.
At the time the above deed was received, the grantees, in addition to the cash payment of one-third of the purchase price, executed two promissory notes, payable to the grantors, for the sum of $2,444.45, each bearing 8 per cent. interest, payable one year and six months from March 26, 1890, and secured by a mortgage on the premises. But in that mortgage, by the mistake of the scrivener who prepared it, the land was described as lying in township 6. The mortgage was duly signed, witnessed, and acknowledged; Reed and Henderson, at the time, fully believing and acting upon the representation of the grantors as to title, and paying to the grantors the interest on said notes down to and including September 26, 1890, which amounted to $180. They also signed a promissory note of June 26, 1891, payable to the Utah National Bank of Ogden, Utah, for the sum of $391.10, as the interest on the above notes, which were held by the bank. The note last named was brought into court, and, when the final decree was rendered, it was still in court for the defendants.
The plaintiffs, Shilling and Adams, failed to furnish an abstract of title; and Reed and Henderson, having an opportunity to sell the land in township 5, and assuming that that was the land conveyed to and mortgaged back by themselves, procured an abstract on the 3d day of September, 1891.