Price v. Hodkin

2019 UT App 137
THE UTAH COURT OF APPEALS
THE ESTATE OF A MY A LLEN PRICE,
Appellee,
v.
M ICHAEL HODKIN , K ATHERINE S. HODKIN , AND THE ESTATE OF
VIRGINIA S. A NDERSON ,
Appellants.
Opinion
No. 20170279-CA
Filed August 8, 2019
Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 130800047
Stephen P. Horvat and Heather M. Sneddon,
Attorneys for Appellants
Vincent C. Rampton, Attorney for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY and DIANA H AGEN concurred.
ORME, Judge:
¶1 	Plaintiff Amy Allen Price (Amy)1 brought an action to
quiet title in a property’s mineral rights by challenging a deed
that had been recorded 47 years earlier. Because Amy and her
predecessors 	unreasonably 	delayed 	in 	bringing 	suit 	after
obtaining constructive knowledge of the cause of action and
because their lack of diligence likely prejudiced the defendants
to 	her 	quiet 	title 	action, 	we 	hold 	that 	the 	district 	court
1. 	As 	is 	our 	practice 	when 	parties 	share 	a 	last 	name, 	we
sometimes refer to them by their first names, with no disrespect
intended by the apparent informality.

Price v. Hodkin
20170279-CA 	2 	2019 UT App 137
improperly granted summary judgment in favor of Amy. We
thus reverse the summary judgment and remand for further
proceedings consistent with this opinion.
BACKGROUND2
¶2 	The 	property 	at 	issue 	(the 	Property) 	consists 	of 	two
parcels of land in Duchesne County. It was co-owned by two
sisters, Virginia Nutter Price (Virginia) and Catherine Nutter
Story (Catherine)3 (collectively, the Sisters), for more than 20
years.
¶3 	In 1945, the Property was conveyed by two separate
deeds (the 1945 Deeds) to the Sisters “as joint tenants and not as
tenants in common, with full rights of survivorship.” Their
mother, Katherine F. Nutter (Mother), conveyed the first parcel
of land to them. Robert E. Mark (Mark), an attorney who, for
decades, represented the Nutter family and its business, the
Preston Nutter Corporation (PNC), conveyed the second parcel
of land to the Sisters. As there is no record of any conveyance
taking place between 1945 and 1966 that would have severed the
Sisters’ joint tenancy, it would appear that their co-ownership of
the Property came to an end in 1966 with Catherine’s passing.
2. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2,
328 P.3d 880 (quotation simplified).
3. We are unsure as to the correct spelling of Catherine’s given
name 	because 	documents 	within 	the 	record 	use 	various
spellings. The 1945 Deeds, the key documents in this case,
conveyed a joint tenancy interest in the Property to “Catherine”
N. Story. Accordingly, we use that spelling in this opinion.

Price v. Hodkin
20170279-CA 	3 	2019 UT App 137
¶4 	Mark served as executor of Catherine’s estate. Virginia
presented a claim to the estate in the form of a promissory note
in favor of Mother that Catherine had signed in 1960 (the Note).
The Note was “for the principal sum of $10,000.00 payable six
months after [Catherine’s] death bearing interest at 6% per
annum.” It was secured by 210 shares of PNC stock. Virginia
succeeded to the Note and its security following Mother’s death.
And at the time of Catherine’s passing, the Note was worth
$13,614.99. Because Catherine’s estate did not possess sufficient
funds to pay the Note, Mark petitioned the district court for
authorization to convey Catherine’s full “undivided one-half
interest” in the Property’s surface rights4 to Virginia in full
satisfaction of the debt. This petition (the Petition) stated that in
exchange for Catherine’s interest in the Property’s surface rights,
Virginia agreed (1) to pay the estate the difference between the
value of Catherine’s interest in the Property and the amount
owed Virginia on the Note, (2) to return the PNC stock that she
had held as security on the Note, and (3) that the conveyance
expressly excepted “one-half of all oil and gas and one-half of all
other minerals contained in [the Property].” The Petition further
indicated that “Virginia N. Price has accepted said offer made to
her by [Mark],” and it also bore her signature. Apparently no
one at the time questioned whether Catherine’s one-half interest
in the Property had already passed to Virginia, the surviving
joint tenant, upon Catherine’s death.
¶5 	The 	court 	granted 	the 	Petition, 	authorizing 	Mark 	to
convey Catherine’s full interest in the Property’s surface rights to
Virginia while retaining a half-interest in all oil, gas, and mineral
4. The Petition describes the Property as consisting of three—not
two—parcels of land in Duchesne County. The history of the
third parcel is not apparent from the record, but neither party
argues that Catherine’s interest in that third parcel differed in
any way from that of the remaining two parcels.

Price v. Hodkin
20170279-CA 	4 	2019 UT App 137
rights. Mark executed and recorded a deed reflecting the court’s
order in late 1966 (the 1966 Deed). In 1968, the court further
ordered that the Property’s income from “one-half of all oil and
gas and one-half of all other minerals” be distributed to Mark as
trustee of Catherine’s testamentary trust. Katherine S. Hodkin
and 	Virginia 	S. 	Anderson5 	(collectively, 	Defendants)6 	are
Catherine’s daughters and are the beneficiaries of Catherine’s
testamentary trust.
¶6 	In the years following the 1966 transaction, Virginia made
a number of payments to Catherine’s trust reflecting its share of
proceeds 	from 	oil 	and 	gas 	leases 	on 	the 	Property, 	which
payments continued after her death in 1977. Upon her passing,
Virginia’s husband, Howard Price (Howard), succeeded to her
interest in the Property. He later married Amy, who likewise
succeeded to his interest in the Property following his death in
1982. There is evidence of Amy making intermittent payments to
Defendants for Catherine’s estate’s portion of the proceeds on oil
and gas leases on the Property after Howard’s passing.
¶7 	In 2013, forty-seven years after the 1966 transaction, Amy
initiated the current action seeking to quiet title “in and to the
surface and subsurface interests in the [Property]” and “seeking
5. Since the initiation of the current litigation, Virginia Anderson
and Amy have passed. Their estates have been substituted in
their place.
6. The collective term “Defendants” also includes defendant
Michael Hodkin. He is presumably the husband of Katherine S.
Hodkin, but this is not clear from the record. The record and
parties’ briefing are also unclear as to the genesis of Michael
Hodkin’s claim to the Property’s mineral rights and as to his
relationship to his co-defendants and the Nutter family more
generally.

Price v. Hodkin
20170279-CA 	5 	2019 UT App 137
related 	declaratory 	and 	equitable 	relief.” 	In 	her 	subsequent
motion 	for 	summary 	judgment, 	Amy 	argued 	that 	because
neither sister had severed the joint tenancy ownership of the
Property prior to Catherine’s death in 1966, Virginia took full
title to the Property—including all mineral rights—by right of
survivorship. As a result, “[Catherine]’s estate never received,
and therefore could not make disposition of, any rights [in the
Property].” 	And 	as 	Howard’s 	successor 	in 	interest 	to 	the
Property, who in turn succeeded to Virginia’s original interest,
Amy argued that the Property’s full mineral rights belonged to
her 	by 	operation 	of 	law. 	She 	argued 	that 	this 	defeated
Defendants’ claims of right, title, or interest in any portion of the
Property’s mineral rights.
¶8 	Defendants opposed the motion for summary judgment
on several grounds. Among other things, they argued that the
1966 transaction raised a genuine issue of material fact as to
whether the joint tenancy created in 1945 had been severed prior
to Catherine’s passing in 1966. In support of this argument,
Defendants relied on Virginia’s and Mark’s sophistication as
well as their conduct following Catherine’s death. Specifically,
Virginia served as president and treasurer of PNC for more than
two decades. At that time, “PNC was one of the largest cattle
ranching operations in the Intermountain West, leasing and
owning substantial acres of grazing land with cattle herds . . . in
Utah, in Arizona, and in various other locations.” In addition to
cattle ranching, PNC also leased oil and gas rights to major oil
companies. Virginia was knowledgeable about real property
transactions and, while she served as its president, PNC became
one of the first companies to separate leases for tar sands from
ordinary oil leases, thereby achieving additional revenue for
PNC. 	Moreover, 	Mark 	was 	PNC’s 	long-time 	attorney 	and
grantor of one of the parcels of land that made up the Property.
Defendants argued that a person possessing Virginia’s business
acumen and knowledge of real property transactions, or Mark’s
legal expertise, would have known that if the Property was

Price v. Hodkin
20170279-CA 	6 	2019 UT App 137
owned in joint tenancy, full title would have passed to Virginia
by operation of law following Catherine’s death. And because
both Virginia and Mark entered into the 1966 transaction under
the apparent belief that Catherine’s estate owned an “undivided
one-half interest” in the Property, Defendants argued that they
were entitled to the inference at the summary judgment stage
that a severance of the Sisters’ joint tenancy had somehow
occurred prior to Catherine’s death notwithstanding the lack of
any documentation substantiating that theory.
¶9 	Defendants also argued that even if the joint tenancy had
not 	been 	severed, 	the 	1966 	transaction 	between 	Mark 	and
Virginia 	was 	sufficient 	to 	operate 	as 	a 	conveyance 	of 	the
Property’s mineral rights to Catherine’s estate. Additionally,
they contended that Amy’s suit to quiet title was barred by the
doctrines of laches, estoppel, waiver, and res judicata given that
Amy and her predecessors in interest had acted in accordance
with the 1966 transaction for decades and because she and her
predecessors waited 47 years, collectively, to file an action to
quiet title.
¶10 	The district court granted Amy’s motion for summary
judgment. The court concluded that because Defendants were
unable to present direct evidence of severance of the joint
tenancy, it was not severed as a matter of law and Catherine’s
entire one-half interest in the Property, including its mineral
rights, passed to Virginia upon Catherine’s death. The court
stated that “evidence suggesting [Virginia] possessed strong
business acumen in no way eliminates the possibility that she
erred or had a lapse of memory” when she entered into the 1966
transaction. 	“The 	conclusion 	that 	[Virginia] 	believed 	in 	or
intended a severance would be purely speculative . . . [as well
as] irrelevant without evidence of an act of severance.” The court
also rejected Defendants’ argument that the 1966 transaction and
subsequent decades of performance constituted a conveyance of
the Property’s mineral rights to Catherine’s estate. It held that

Price v. Hodkin
20170279-CA 	7 	2019 UT App 137
because Catherine’s estate did not possess an interest in the
Property with which to bargain, the 1966 transaction did not
constitute a binding agreement due to a lack of consideration. It
also declined to enforce the agreement on the ground that it was
“just as likely” that Virginia was acting under a mistake of fact
or law when she entered into the agreement. The court further
stated that even if the agreement was enforceable, it did not
require Virginia to transfer mineral rights to Catherine’s estate.
And finally, the court rejected Defendants’ other arguments,
including 	those 	based 	on 	estoppel, 	laches, 	waiver, 	and 	res
judicata. 	Regarding 	Defendants’ 	laches 	argument, 	the 	court
stated 	that 	“Defendants 	[had] 	provided 	the 	Court 	with 	no
evidence to suggest that [Virginia] or her assigns failed to pursue
the action after becoming aware of the facts.”
¶11 	Following additional filings, the district court entered
final judgment in favor of Amy, ordering Defendants to disgorge
all proceeds they had received from the Property’s mineral
rights leases since July 15, 2008. Based on the stipulation of the
parties, the amount was set at $18,000. Defendants appeal.
ISSUES AND STANDARDS OF REVIEW
¶12 	On appeal, Defendants raise several issues that can be
separated into two categories. First, they argue that Amy is
barred from bringing the current action to quiet title after the
passage of 47 years since the 1966 Deed was executed and
recorded, and after the parties’ decades-long performance in
accordance 	with 	the 	1966 	transaction. 	In 	support 	of 	this
argument, Defendants rely on the doctrines of estoppel, laches,
waiver, 	and 	res 	judicata. 	Second, 	Defendants 	challenge 	the
district court’s grant of summary judgment in favor of Amy on
the basis that Defendants had insufficient evidence to show that
the Sisters’ joint tenancy had been severed prior to Catherine’s
death. Among other things, they argue that, at the summary
judgment stage, they were entitled to the reasonable inference

Price v. Hodkin
20170279-CA 	8 	2019 UT App 137
that the Sisters’ joint tenancy had been severed based on the
sophistication 	of 	the 	parties 	who 	entered 	into 	the 	1966
transaction and their behavior being consistent with recognition
that 	a 	severance 	had 	occurred. 	Because 	we 	agree 	with
Defendants that the district court improperly granted summary
judgment to Amy in view of Defendants’ laches defense and
reverse on that basis, we limit our analysis to that issue and do
not address Defendants’ other arguments.
¶13 	“The application of laches to a particular set of facts and
circumstances 	presents 	a 	mixed 	question 	of 	law 	and 	fact,”
meaning “we review the trial court’s conclusions of law for
correctness and will disturb its findings of fact only if they are
clearly erroneous.” Veysey v. Nelson, 2017 UT App 77, ¶ 5, 397
P.3d 846 (quotation simplified).
ANALYSIS
¶14 	The 	equitable 	doctrine 	of 	laches 	“is 	based 	upon 	the
maxim that equity aids the vigilant and not those who slumber
on their rights.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 17, 321
P.3d 1021 (quotation simplified). “It is a negative equitable
remedy which deprives one of some right or remedy to which he
would otherwise be entitled, because his delay in seeking it has
operated to the prejudice of another.” Fundamentalist Church of
Jesus Christ of Latter Day Saints v. Horne, 2012 UT 66, ¶ 37, 289
P.3d 502 (quotation simplified). Accordingly, to prevail on a
defense of laches, a defendant must show that (1) the plaintiff—
and, in appropriate cases, the plaintiff’s predecessors—failed to
diligently pursue its claim against the defendant and (2) the
defendant was injured by the plaintiff’s lack of diligence. See
Insight Assets, 2013 UT 47, ¶ 19; Horne, 2012 UT 66, ¶ 29.
¶15 	The fact that a plaintiff presents a meritorious claim
against a defendant does not preclude the application of the
doctrine of laches. See Horne, 2012 UT 66, ¶ 37 (rejecting the

Price v. Hodkin
20170279-CA 	9 	2019 UT App 137
argument that “a court’s recognition of meritorious claims could
defeat a laches defense” because such a conclusion “would be
antithetical 	to 	the 	whole 	point 	of 	the 	doctrine 	of 	laches”).
Furthermore, 	because 	“Utah 	has 	abolished 	any 	formal
distinction between law and equity,” “the doctrine of laches may
apply in equity, whether or not a statute of limitation also
applies and whether or not an applicable statute of limitation has
been satisfied.”7 Veysey v. Nelson, 2017 UT App 77, ¶ 7, 397 P.3d
846 (quotation simplified).
¶16 	Utah courts have regularly considered the applicability of
the 	doctrine 	of 	laches 	in 	cases 	concerning 	interests 	in 	real
property.8 See, e.g., Insight Assets, 2013 UT 47, ¶ 22 (holding that
7. Because laches can apply even when an action’s statute of
limitations has been satisfied, we need not determine whether
Amy’s action constitutes a “true” quiet title action that is not
subject to a statute of limitations. See In re Hoopiiaina Trust, 2006
UT 53, ¶¶ 26–27, 144 P.3d 1129.
8. 	Utah’s 	jurisprudence 	is 	consistent 	with 	that 	of 	other
jurisdictions. See, e.g., Villa Park Village v. Strickland, 376 N.E.2d
1047, 1048–49 (Ill. App. Ct. 1978) (listing prior cases in which
Illinois courts applied laches to bar quiet title actions); Knight v.
Northpointe Bank, 832 N.W.2d 439, 444–45 (Mich. Ct. App. 2013)
(holding 	that 	laches 	barred 	the 	plaintiff 	from 	challenging
whether the defendant, who had power of attorney for the
original property owner, validly transferred land to herself);
Johnson v. Estate of Shelton, 754 P.2d 828, 831 (Mont. 1988)
(holding that defendant’s counterclaim to nullify the exchange of
quitclaim deeds was barred by laches); Skaggs v. Conoco, Inc.,
1998-NMCA-061, ¶ 13, 957 P.2d 526 (holding that laches barred
plaintiff’s suit to quiet title to mineral leasehold); Robinson v.
Estate of Harris, 705 S.E.2d 41, 44 (S.C. 2011) (holding that laches
(continued…)

Price v. Hodkin
20170279-CA 	10 	2019 UT App 137
laches 	barred 	a 	lender 	from 	asserting 	an 	interest 	in 	real
property); 	Walker 	v. 	Walker, 	404 	P.2d 	253, 	257 	(Utah 	1965)
(holding that laches did not prevent siblings from asserting an
interest in real property against their brother because the siblings
were not unreasonable in delaying suit until after the death of
their mother); Gold Mountain Dev., LLC v. Missouri Flat, Ltd., 2005
UT App 276U, para. 8 (considering defendant’s laches argument
in a quiet title action and holding that it did not apply because
defendant failed to show a lack of diligence on the plaintiff’s
part). But see Sweeney Land Co. v. Kimball, 786 P.2d 760, 762 (Utah
1990) (holding that laches was inapplicable to an action asserting
adverse possession because, in such cases, the court’s focus
should be on the actions of the adverse possessor); 74 C.J.S.
Quieting Title § 55, at 51 (2002) (“Laches is also ordinarily not a
bar to an action to quiet title based on a forged deed or a forged
alteration.”). Here, after the passage of 47 years, Amy brought a
quiet title action seeking to set aside the 1966 transaction and
void the 1966 Deed. The district court rejected Defendants’
laches argument on the ground that “Defendants have provided
the Court with no evidence to suggest that [Virginia] or her
assigns failed to pursue the action after becoming aware of the
facts.”
¶17 	We disagree. This disagreement will require us to also
consider whether Defendants were prejudiced by Amy’s delay.
I. Lack of Diligence
¶18 	“The length of time that constitutes a lack of diligence
depends 	on 	the 	circumstances 	of 	each 	case, 	because 	the
propriety 	of 	refusing 	a 	claim 	is 	equally 	predicated 	upon
(…continued)
barred plaintiffs’ quiet title action where plaintiffs waited 60
years to challenge grantor’s conveyance by deed).

Price v. Hodkin
20170279-CA 	11 	2019 UT App 137
the gravity of the prejudice suffered and the length of the
delay.” Fundamentalist Church of Jesus Christ of Latter Day Saints
v. 	Lindberg, 	2010 	UT 	51, 	¶ 28, 	238 	P.3d 	1054 	(quotation
simplified).
¶19 	Amy recognizes “that the state of title to [the Property]
was a matter of public record from 194[5] onward.” But she
argues that Defendants “have come forward with no indication
that [Amy] delayed unreasonably after obtaining knowledge of
her rights.”9 Amy essentially argues that a finding of a lack of
diligence 	should 	be 	limited 	to 	a 	showing 	that 	a 	plaintiff
unreasonably delayed after obtaining actual knowledge of a
cause of action, rather than constructive knowledge.10 In support
of this argument, Amy cites Fundamentalist Church of Jesus Christ
of Latter Day Saints v. Horne, 2012 UT 66, 289 P.3d 502, which
approvingly quoted a New Hampshire Supreme Court decision
that 	stated, 	“Delay 	for 	an 	unreasonable 	length 	of 	time 	in
bringing the suit after knowledge of the breach may be the basis for
the equitable defense of laches.” Id. ¶ 32 (emphasis added)
(quoting Valhouli v. Coulouras, 142 A.2d 711, 713 (N.H. 1958)).
However, the quoted language relied on by Amy is only a
9. 	The 	record 	does 	not 	reveal 	the 	date 	or 	circumstances
surrounding Amy’s realization that the 1945 Deeds conveyed the
Property to the Sisters “as joint tenants and not as tenants in
common, with full rights of survivorship.”
10. 	Actual 	knowledge 	is 	“[d]irect 	and 	clear 	knowledge, 	as
distinguished from constructive knowledge.” Actual Knowledge,
Black’s Law Dictionary 1004 (10th ed. 2014). And constructive
knowledge is “[k]nowledge that one using reasonable care or
diligence should have, and therefore that is attributed by law to a
given person.” Constructive Knowledge, Black’s Law Dictionary
1004 (10th ed. 2014) (emphasis added).

Price v. Hodkin
20170279-CA 	12 	2019 UT App 137
portion of the entire quote,11 which our Supreme Court cited in
support of its holding that one of its prior cases should be read
to mean that “‘harm to the plaintiff’ is a factor that works with
laches—not within it—to evaluate whether an injunction for
restrictive covenant violations or the like is proper.” Id. ¶ 31. In
Horne, our Supreme Court was not presented with, nor did it
address, the issue of whether the diligence prong of laches was
limited to actual knowledge. Moreover, even if the language
quoted by Amy were to have precedential value for the issue at
hand, the language itself employed the broad term “knowledge”
and 	did 	not 	distinguish 	between 	actual 	and 	constructive
knowledge.
¶20 	Utah courts have stated that constructive knowledge can
trigger the due diligence prong of laches. See Leggroan v. Zion’s
Sav. Bank & Trust Co., 232 P.2d 746, 749–51 (Utah 1951) (holding
that laches barred a trust beneficiary’s suit against the trustee for
an 	accounting 	of 	the 	trust 	assets 	because 	the 	beneficiary
11. In its entirety, the quoted language reads:
“Delay 	for 	an 	unreasonable 	length 	of 	time 	in
bringing the suit after knowledge of the breach
may be the basis for the equitable defense of laches,
particularly where a mandatory injunction is being
sought. This is particularly so in view of the further
finding that the relative hardship in granting relief
to the plaintiffs was disproportionate to the benefit
secured thereby. Thus a combination of laches and
disproportion between harm and benefit may have
the effect of causing the denial of an injunction
when 	neither 	alone 	would 	have 	caused 	such
denial.”
Fundamentalist Church of Jesus Christ of Latter Day Saints v. Horne,
2012 UT 66, ¶ 32, 289 P.3d 502 (quoting Valhouli v. Coulouras, 142
A.2d 711, 713 (N.H. 1958)).

Price v. Hodkin
20170279-CA 	13 	2019 UT App 137
unreasonably delayed after obtaining “constructive notice of
final distribution”); Nilson Newey & Co. v. Utah Res. Int’l, 905 P.2d
312, 314–15 (Utah Ct. App. 1995) (holding that laches barred
plaintiff’s action for an accounting and distribution of profits
because, in part, plaintiff unreasonably delayed in bringing suit
and that although defendants did not formally repudiate their
obligation 	to 	plaintiff 	until 	1993, 	plaintiff 	had 	constructive
knowledge of such repudiation because it knew of a transaction
that occurred 25 years earlier from which it never received a
distribution of profits). Furthermore, we see no reason why we
should not consider constructive knowledge when a defendant
raises the doctrine of laches as a defense to a quiet title action
when constructive knowledge is otherwise pervasive in Utah
property law, particularly in quiet title actions. See, e.g., Allen v.
Hall, 2005 UT App 23, ¶¶ 10–11, 107 P.3d 85 (“[Defendant] is
deemed to have had notice of [plaintiff’s] interest from the time
of recording . . . . [Defendant’s] notice of [plaintiff’s] interest
destroys any equitable ground upon which the court could quiet
title in [defendant].”), aff’d in part, rev’d in part, 2006 UT 70, 148
P.3d 939. See also Utah Code Ann. § 57-3-102(1) (LexisNexis 2010)
(“Each 	document 	[properly] 	executed, 	acknowledged, 	and
certified 	. 	. 	. 	shall, 	from 	the 	time 	of 	recording 	with 	the
appropriate county recorder, impart notice to all persons of their
contents.”).
¶21 	Here, the 1945 Deeds unambiguously 	stated that the
Property was conveyed to the Sisters “as joint tenants and not as
tenants in common, with full rights of survivorship,” and, as
part of the public record, the 1945 Deeds were readily available
for review long before the 1966 transaction and recordation of
the 1966 Deed. Amy succeeded to Virginia’s interest in the
Property in 1982, upon Howard’s passing. But Amy did not
bring the present quiet title action until 2013—31 years after she
inherited 	the 	Property 	or 	an 	interest 	in 	it. 	Likewise, 	even
assuming 	that 	Virginia 	and 	Mark 	entered 	into 	the 	1966
transaction 	under 	the 	mistaken 	belief 	that 	the 	Sisters 	were

Price v. Hodkin
20170279-CA 	14 	2019 UT App 137
granted the Property as tenants in common and not joint tenants,
Amy 	and 	her 	predecessors 	in 	interest 	had 	constructive
knowledge of this mistake for 47 years before Amy initiated the
current action. As such, Amy and her predecessors certainly
cannot be characterized as “vigilant.” See Insight Assets, Inc. v.
Farias, 2013 UT 47, ¶ 17, 321 P.3d 1021 (“Equity aids the vigilant
and 	not 	those 	who 	slumber 	on 	their 	rights.”) 	(quotation
simplified). And because Amy has not identified a circumstance
that would excuse the 47-year delay, that delay surely appears to
be unreasonable. See Nilson Newey, 905 P.2d at 315 (stating that
the 	plaintiff’s 	failure 	to 	act 	for 	25 	years 	after 	obtaining
constructive knowledge was unreasonable “unless the delay
[was] excused by some other circumstance”).
¶22 	Amy next argues that because “[Defendants] were on
record, constructive notice—just as much as [she] was—as to
who owned mineral rights in [the Property] and who did not,”
they were equally “derelict in failing to seek clarification by the
court.” Amy is correct that Defendants also had constructive
notice of the Sisters’ joint tenancy in the Property, at least
initially, but Defendants did not have the same duty as Amy to
bring a timely action to quiet title in the mineral rights. This is
because
a property owner who has record notice of possible
problems with the owner’s title may, but is not
required to, bring an action to eliminate those
problems. When a 	property interest is actually
repudiated or challenged, or an adverse claim is
asserted against that interest, the property owner is
obligated to act within a reasonable time to protect
the 	owner’s 	interests. 	In 	the 	face 	of 	such 	a
challenge, an action unreasonably delayed is time
barred, because to allow it would result in injury,
prejudice 	or 	disadvantage 	to 	the 	party 	against
whom the action is brought.

Price v. Hodkin
20170279-CA 	15 	2019 UT App 137
Association of Unit Owners of the Inn at Otter Crest v. Far West Fed.
Bank, 	852 	P.2d 	218, 	222 	(Or. 	Ct. 	App. 	1993) 	(quotation
simplified). See 74 C.J.S. Quieting Title § 55, at 50 (2002) (“A
plaintiff in possession under a claim of title is entitled to wait
until possession is invaded or the title attacked before taking
steps to vindicate it, and a mere lapse of time will not bar the
action.”). Cf. In re Hoopiiaina Trust, 2006 UT 53, ¶ 26, 144 P.3d
1129 (stating that “true” quiet title actions, which the Court
defined as those “brought to quiet an existing title against an
adverse or hostile claim of another,” are “not subject to a statute
of 	limitations”) 	(emphasis 	in 	original) 	(quotation 	otherwise
simplified).
¶23 	Here, Defendants own half of the Property’s mineral
rights under color of title by virtue of the 1966 Deed. They have
also long benefitted from their share of the mineral rights as they
collected rents attributable to their portion of the mineral leases.
For that reason, they were under no obligation to bring an action
to quiet title before their interest in the mineral rights was
actually challenged. So laches may be asserted against Amy, but
it cannot be claimed against Defendants absent a showing that
they unreasonably delayed after their interest was challenged,
which showing Amy has not made.
¶24 	For these reasons, it appears that Amy failed to exercise
due diligence in asserting her interest in the other half of the
Property’s mineral rights because she and her predecessors
unreasonably delayed by waiting 47 years to bring an action to
quiet title.
II. Injury to Defendants
¶25 	Once a defendant has established a lack of diligence on
the part of the plaintiff, the defendant, to prevail on the laches
defense, must show that the lack of diligence resulted in an
injury to the defendant. See Insight Assets, Inc. v. Farias, 2013 UT
47, ¶ 19, 321 P.3d 1021. “[U]navailable or long-lost evidence and

Price v. Hodkin
20170279-CA 	16 	2019 UT App 137
witnesses” have “long [been] recognized” as injuries that the
doctrine of laches is intended to prevent. Fundamentalist Church
of Jesus Christ of Latter Day Saints v. Horne, 2012 UT 66, ¶ 38, 289
P.3d 502. See Young v. Western Piling & Sheeting, 680 P.2d 394, 395
(Utah 1984); Leggroan v. Zion’s Sav. Bank & Trust Co., 232 P.2d
746, 750 (Utah 1951); 12A C.J.S. Cancellation of Instruments § 112,
at 582 (2004) (“Laches may be a defense where, by reason of the
death of the participants or other important witnesses, weakened
memories, or the loss or destruction of documents, proof has
been lost so that the controversy cannot be determined without
the danger of doing injustice.”).
¶26 	Here, 	Amy 	brought 	an 	action 	to 	quiet 	title 	in 	the
Property’s 	mineral 	rights, 	which 	action 	would 	require 	a
determination that the 1966 Deed is void. She contends that
because the Property was conveyed to the Sisters “as joint
tenants and not as tenants in common,” Virginia took title to the
entire Property by right of survivorship upon Catherine’s death.
Defendants counter by arguing that based on the sophistication
of 	the 	parties 	who 	entered 	into 	the 	1966 	transaction, 	it 	is
reasonable to instead infer that a severance of the joint tenancy
occurred sometime between 1945 and 1966.
¶27 	A brief overview of joint tenancy is helpful to the current
analysis. A joint tenancy is “[a] tenancy with two or more
coowners who are not spouses on the date of acquisition and
have identical interests in a property with the same right of
possession.” Joint Tenancy, Black’s Law Dictionary 1694 (10th ed.
2014). It differs from a tenancy in common in that “each joint
tenant has a right of survivorship to the other’s share.” Id. A
severance of a joint tenancy has the effect of terminating the
right of survivorship between the joint tenants. Crowther v.
Mower, 876 P.2d 876, 879 (Utah Ct. App. 1994). “Either party to a
joint tenancy may terminate it and the consent of the other
tenants to the severance or termination is not required.” Id. at
878 (quotation simplified). Prior to 1996, severance of a joint

Price v. Hodkin
20170279-CA 	17 	2019 UT App 137
tenancy was achieved “by destroying one of the four unities
essential to joint tenancy—time, title, interest, and possession.”
In re Estate of Knickerbocker, 912 P.2d 969, 974 (Utah 1996). If a
joint 	tenant 	desired 	to 	terminate 	the 	joint 	tenancy 	without
mortgaging or selling his interest to a third party, the joint tenant
had to arrange a “‘strawman’ transaction, in which he would
convey his interest to a third party who would immediately
convey it back to the grantor.” Id. Because conveyances of a joint
tenant’s interest to a third party did not need to be recorded,
Crowther, 876 P.2d at 878–79, it follows that such “strawman”
transactions 	likewise 	did 	not 	require 	recordation, 	see
Knickerbocker, 	912 	P.2d 	at 	976 	(recognizing 	the 	existence 	of
unrecorded strawman transactions by noting that “a recorded
strawman transaction . . . is superior to an unrecorded one”). It
was in 1996 that our Supreme Court issued Knickerbocker, in
which 	it held that “it 	is the 	intent of the parties, not the
destruction of one of the four unities, that should govern” the
severance of joint tenancies. Id. at 975. It further dispensed with
the requirement of “strawman” transactions in favor of recorded
unilateral self-conveyances.12 Id. at 976 (“[A] joint tenant may
effectively sever a joint tenancy by executing and recording a
unilateral self-conveyance.”) (emphasis added).
¶28 	Undoubtedly 	referencing 	the 	“strawman” 	transactions
that prior to 1996 were the sole means of severing a joint tenancy
when it was not intended to actually transfer an interest in the
property to a third party, the district court correctly noted that
although “the conveyance that effectuates the severance need
not be recorded, . . . delivery of a deed severing the joint tenancy
by transferring title must be proven.” The court cited Crowther,
876 P.2d at 878, and Nelson v. Davis, 592 P.2d 594, 597 (Utah
12. This change in the law also helps prevent future situations
similar to those of the current case that arose from a possible
unrecorded “strawman” transaction.

Price v. Hodkin
20170279-CA 	18 	2019 UT App 137
1979), in support of its decision. And therein lies the prejudice
Defendants have apparently suffered as a result of the lack of
due diligence on the part of Amy and her predecessors in
interest. Proof of whether a severance occurred has seemingly
been lost to history. In the 47 years since the 1966 Deed was
recorded, all parties who were involved in the 1966 transaction
have died. Virginia passed in 1977, Mark in 1975, and Howard in
1982. And Mark’s business records have likewise been lost. It is
now 	impossible 	to 	determine 	whether 	Virginia 	and 	Mark
entered into the 1966 transaction based on a mutual mistake
about how the Property was actually titled or whether they did
so knowing that the Sisters’ joint tenancy had been severed
through a “strawman” transaction, recordation of which was not
required.
¶29 	Because all known witnesses and evidence regarding a
potential severance of the Sisters’ joint tenancy have long since
become unavailable, the injury prong of laches appears to be
satisfied.
CONCLUSION
¶30 	We 	hold 	that 	the 	district 	court 	improperly 	granted
summary 	judgment 	in 	Amy’s favor. 	The 	1945 	Deeds upon
which Amy bases her claim that the entirety of the Property
vested in Virginia upon Catherine’s death were a matter of
public record since the end of World War II, conferring upon
Amy 	and 	her 	predecessors 	in 	interest 	constructive 	notice
regarding 	the 	Sisters’ 	initial 	joint 	tenancy 	in 	the 	Property.
As 	such, 	Amy 	and 	her 	predecessors 	appear 	to 	have
unreasonably delayed by waiting 47 years to challenge the 1966
Deed and transaction. And Defendants seemingly were injured
by Amy’s lack of diligence because all known witnesses to the
Sisters’ joint tenancy have long since died and any evidence of
severance has been lost.

Price v. Hodkin
20170279-CA 	19 	2019 UT App 137
¶31 	We accordingly reverse the summary judgment entered in
favor of Amy and remand for further proceedings consistent
with this opinion.