On Application for Rehearing.
THURMAN, J.On application for rehearing appellant contends that the court erred in holding that Peter Huntsman, the attorney in fact of Jacob Huntsman, had no authority to convey the premises in question for a nominal consideration, and that the court also erred in holding that the consideration expressed in the deed to Fanny Allen was merely nominal and that the transaction amounted only to a gift. Finally, it is contended by appellant that in any event the matter of consideration for the deed was not in issue in the pleadings nor in any manner raised in the court below.
Appellant admits that if the conveyance to Fanny Allen was only a gift it was beyond the power of the attorney in fact.
The question of burden of proof as to whether or not there was a substantial consideration for the deed to Fanny Allen is not discussed by appellant. We have no means of determining appellant’s position in that regard. We recognize the rule that, while the expressed consideration 7 in a deed is not conclusive it is well settled that where no attempt is made to prove another or different consideration the consideration expressed in the deed is prima facie the true consideration. 2 Devlin, Real Estate (3d Ed.) section 817; Miller v. Livingston, 22 Utah, 174, 61 Pac. 569; Haywood’s Heirs v. Moore, 2 Humph. (Tenn.) 584; Clements v. Landrum, 26 Ga. 401.
If it be true that on the face of the record the conveyance to Fanny Allen was not made for the benefit of Jacob Huntsman, as provided in the power of attorney, then it was incumbent upon the party relying upon the deed to prove that *622there was in fact a substantial consideration. In support of this proposition we refer to section 813, Devlin, supra.
We have no reasonable doubt as to the legal soundness of this proposition. In this case the ultimate question to be determined was the title to the property in question. The plaintiff introduced a chain of title extending from the United States down to the plaintiff. The chain of title on its face was flawless. The plaintiff rested his case. It was incumbent on the defendant to meet the case thus presented. She undertook to do so by introducing other deeds executed under a power of attorney. The power of attorney was explicit in requiring that the conveyance of the property must be for the benefit of the principal. The deed to Fanny Allen, executed under the power of attorney, showed on its face, in connection with other evidence, that the consideration was only nominal, and could be of no substantial benefit to the principal. In other words, it was a mere gift to the grantee, which was outside the power given to the attorney in fact. The title sought to be proven by defendant depended upon the validity of this conveyance. We feel compelled to hold, as we did in the opinion' complained of, that for the reasons above stated defendant failed to establish her title or to otherwise meet the case made by plaintiff.
It is suggested, however, by appellant that the court was not justified in assuming that the consideration for the deed was merely nominal. It is true the actual value of the property was not established by the evidence. . No attempt was made so to do by either party. It does appear, however, that at the time of the attempted conveyance to Fanny Allen the property consisted of two city lots in Fillmore City, the county seat of Millard county, aggregating two -and one-half acres of land, with water right therefor and a dwelling house situated thereon which had been the home of Jacob Huntsman’s mother. The property was considered of sufficient importance to justify the expense of a suit instituted by Jacob Huntsman in the district court of Millard county for the purpose of quieting his title. In view of these circum*623stances, to assume that two dollars was anything more than a nominal consideration for the property would be to deliberately disregard every suggestion of common 8 knowledge and the simplest dictates of common sense. The court feels justified in adhering to the position taken in the opinion, that the consideration for the deed was only nominal; that the deed was an attempted gift, and for that reason was beyond the power of the attorney in fact.
As contravening these propositions appellant cites the case of Wade v. Northup, 70 Or. 569, 140 Pac. 451. This was an Orgeon case, involving the validity of a conveyance executed by an attorney in fact under a general power of attorney. The conveyance was made by the attorney in fact upon an express consideration of ten dollars and other good and valuable considerations. The point was made by the party assailing the deed that it was merely a gift, and that the power of attorney did not include the power to make a gift. The court held the deed to be valid as a conveyance of the property, but there is a wide distinction between that case and the ease at bar. In the first place, the power of attorney in that case did not expressly authorize the attorney in fact to exercise the power for the benefit of the principal. In the second place, the consideration expressed was ten dollars and other valuable considerations. In the third place, there was evidence in the record on appeal to the. effect that the person executing the power of attorney was well-to-do, and that the land conveyed was unproductive; that the principal had frequently expressed the intention of conveying the land to her brothers and sisters and had so stated to her attorney in fact. The conveyance was made to the very persons concerning whom the principal had expressed such intention. In these circumstances the court held that ‘ ‘ the act of the attorney was within the direct letter as well as within the spirit of the power conferred upon him.” The case sheds no light whatever upon the question here presented.
Holding, as we do, that the expressed consideration on the face of the whole proceeding was merely nominal and of *624no benefit to the principal, the burden was upon appellant, under the circumstances of this case, to prove 9 a substantial consideration, for such alone would be a substantial compliance with .the letter of attorney.
But it is contended that such a rule, if adopted by this court, would jeopardize innumerable titles acquired under similar circumstances. It is asserted to be a matter of common knowledge that many such cases exist in the state, and that untold hardship and confusion might result from the establishment of such a rule. ¥e know óf no rule or principle by which we may assume, as a matter of common knowledge, that such a condition exists. From our knowledge of human affairs and humanity in general we are disposed to believe that few, if any, cases of this bind exist where a power of attorney was made to be exercised only for the benefit of the principal, and the principal permitted the property to be given away without consideration. In any event, the court does not feel authorized to sanction such conduct as against the protest of the principal in a ease where the question of title is involved.
The deed in this case to Fanny Allen was executed in November, 1897. Almost immediately thereafter Jacob Huntsman brought an action to quiet title against her and another party holding a deed from the same attorney in fact, which deed was subject to the same infirmity. In April following, Fanny Allen conveyed the property back to the attorney in fact,' and thus, in effect, eliminated herself from the action brought kgainst her. , The action as to the other party was prosecuted to a final judgment in favor of the plaintiff. This feature of the ease is merely mentioned to illustrate the point heretofore made, that persons executing powers of attorney to sell property for their own benefit are not likely to permit the property to be given away for the benefit of another without entering reasonable protest. Hence we have little or no fear of the alleged hardship or confusion referred to by appellant concerning existing titles.
We have thus far endeavored to make our meaning clear as to the rule that should -govern in this class of cases. We *625have yet to consider, however, one phase of the case which differentiates it from the ordinary case in which the above rules might be invoked. If there were no peculiar features in the procedure of the present ease tending to raise a doubt in our minds as to whether or not appellant had a full and fair opportunity to present her side of the ease, we would have no hesitancy whatever in applying the rules above stated, reaffirming the. former judgment, and denying the application for a rehearing.
But it is contended by appellant that neither the pleadings on which the trial was had nor anything which occurred at the trial raised the question of no consideration as affecting the title to the property. A careful examination of the record justifies this conclusion. It was not necessary, however, to make the specific issue in the pleadings 10 for that is sufficiently presented by simply denying defendant’s title. Not only this, it was not necessary even for plaintiff to raise the specific question of no consideration at the trial; for, as before stated, it was a duty incumbent upon defendant, under the circumstances of this .case heretofore detailed, to show a .substantial consideration in support of her title.
The serious feature of the case, however, and one of which the appellant complains, is that respondent in the court below, in moving to strike the deed from the evidence, stated his ground therefor to be, not that there was no consideration for the deed and therefore that it was only a gift, which the attorney in fact was not authorized to make, but that the attorney in fact had exhausted his power by the execution of a prior deed to another party. That was the sole ground of the motion, as we read the record, and it was the sole ground upon which the court granted the motion.
’ The trial court was not warranted in granting the motion upon this ground, especially inasmuch as the prior deed relied on was also made without authority, and hence the power of the attorney in fact to execute another deed was not exhausted. Nevertheless the respondent having based his motion to strike the deed upon an untenable ground, and the *626trial court having granted the motion solely upon that ground, no question of consideration being presented, defendant may have been thrown off her guard, and for that reason neglected to assume the burden of proving a substantial consideration for the deed, assuming she had the power to make such proof. The court having decided 11 the question upon other grounds, the question of whether or not there was a substantial consideration was in effect eliminated from the ease, and in all probability would have been rejected if offered in evidence.
While this court is not bound by the reasons given by the trial court for its conclusions, but may affirm or modify a judgment upon any legal ground appearing in the record, still it is not bound to do so, and ought not to in an equitable proceeding if it might result in injustice to the appellant. Thompson v. Reynolds, 53 Utah 437, 174 Pac. 164; Realty Co. v. Investment Co., 43 Utah, 75, 134 Pac. 608.
For the reasons stated the court is of the opinion that the case should be remanded to the trial court for the sole purpose of permitting the defendant to present such evidence as she may have tending to show that the deed 12 to Fanny Allen was executed for a substantial consideration as contemplated in the power of attorney by authority of which the conveyance was made. Plaintiff, of course, should be permitted, if he choose, to present evidence on the same subject in support of his contention.
In order that there may be no misunderstanding as to the scope and meaning of this opinion, we hold the following to be the law of the case:
(1) That the power of attorney from Jacob Huntsman to Peter Huntsman did not authorize a gift of the property to Fanny Allen or a sale thereof for a mere nominal consideration; (2) that the deed made to Fanny Allen, as the record now stands, was made for a nominal consideration only, and was therefore, not authorized by the power of attorney; (3) that the expressed consideration being only nominal, the burden of proof was on the defendant to prove that the deed was in fact made for a substantial consideration, *627as contemplated in the power of attorney; (4) that defendant failed to discharge the burden thus imposed, and therefore failed to establish her title to the property. If the defendant can prove by a preponderance of the evidence that a consideration was paid for the property within the letter and spirit of the authority given the attorney in fact, the defendant is entitled to have her title quieted. Otherwise the judgment of the trial court is affirmed.
' It is therefore ordered that the cause be remanded to the •trial court for the purposes hereinbefore mentioned, and said court is hereby directed to mahe and enter its findings of fact and conclusions of law upon the evidence so presented, and enter its decree thereon in accordance with the views herein expressed; neither party to recover costs on this appeal.
CORFMAN, C. J.,' and FRICK, "WEBER, and GIDEON, JJ., concur.