Cole v. Canton Mining Co.
| Decision Date | 29 November 1921 |
| Docket Number | 3685 |
| Citation | 59 Utah 140,202 P. 830 |
| Court | Utah Supreme Court |
| Parties | COLE et al. v. CANTON MINING CO. et al |
Appeal from District Court, Third District, Salt Lake County; Wm. H Bramel, Judge.
Action by H. B. Cole and others against the Canton Mining Company and others. Judgment for defendants, and plaintiffs appeal.
AFFIRMED.
H. C Allen and H. A. Rich, both of Salt Lake City, for appellants.
Pierce Critchlow & Marr, of Salt Lake City, for respondents.
The plaintiff H. B. Cole commenced this action in the district court of Salt Lake county to foreclose a mortgage or trust deed given to him and the other parties plaintiff by the defendant Canton Mining Company to secure a bonded indebtedness created by said mining company with the plaintiffs for the purchase price of certain mining claims and properties situate in Little Cottonwood mining district, Salt Lake County.
Said cause was regularly prosecuted, and after a hearing before said court a judgment and decree of foreclosure was made and entered against the defendant Canton Mining Company in favor of plaintiffs. Judgment was also entered in favor of D. J. Williams, one of the defendants, who had filed a cross-complaint in the action. This last-mentioned judgment was declared to be subsequent and subject to the prior lien of the plaintiffs.
February 11, 1920, pursuant to said judgment and decree, an order of sale issued out of said court commanding and directing the sheriff of Salt Lake county to proceed "to sell the premises described in said judgment and decree" and "to do all things according to the terms and requirements of said judgment and decree and the provisions of the statutes in such cases made and provided."
In obedience to said order of sale, on March 8, 1920, the said mortgaged property was sold by the sheriff and a return made on March 30, 1920, in manner following:
"I did attend at the time and place fixed for said sale and exposed said premises for sale at public auction, each parcel separately, and sold the same to H. B. Cole, plaintiff herein, who made the highest bids for each parcel, as follows:" (Then follow the names of the several mining claims and the price paid or bid for each separate claim, including a tunnel site, machinery, etc.) "Said sums, aggregating a total sum of $ 3,928.00, being the highest bids made and the whole price paid for said property."
At said sale, and immediately after all the property had been sold by the sheriff in separate parcels to H. B. Cole for sums aggregating $ 3,928, said plaintiff, through his attorney, demanded that said property be again offered for sale as a whole. The judgment debtor, Canton Mining Company, through its officers, and also the defendant D. J. Williams, as a judgment creditor, who were present at said sale and had in the first instance demanded that the property be sold in separate parcels, objected thereto. The sheriff declared he had "nothing to sell" under the circumstances, but, after assurance had been given him by the attorney for plaintiff Cole that a sale en masse would be legal, the sheriff "under protest" offered the property for sale as a whole, and, after some competitive bidding, declared the same sold to the plaintiff H. B. Cole, he again being the highest bidder, for the sum of $ 6,950.
It appears that for the time being no return was made by the sheriff of either sale, or until March 29, 1920, when a return was made showing a sale to have been made in separate parcels to the plaintiff H. B. Cole, as heretofore pointed out. It further appears that on the same day, March 29, 1920, an attorney for plaintiff Cole receipted the sheriff for the purchase price of said property, $ 3,928, as sold in separate parcels, and received at the hands of the sheriff a certificate of sale therefor. Thenceforth the record of sale stood as having been made in separate parcels for said sum of $ 3,928 until September 7, 1920, when the defendant D. J. Williams, as a judgment creditor of the Canton Mining Company, in due and legal form served upon the sheriff and filed in the office of the county recorder of Salt Lake county notice of redemption of certain mining claims and property so sold by the sheriff in separate parcels and paid to the sheriff the purchase price at such sale, together with interest and costs, as by statute in such cases made and provided. Thereupon the plaintiff Cole, through his attorney, filed a protest in writing against said redemption unless the redemptioner paid an amount sufficient to redeem from the sale of the property for the sum of $ 6,950, the price bid by plaintiff Cole for the property when sold as a whole in the manner aforesaid.
On September 8, 1920, the sheriff filed an "amended return" of said sale, showing first a sale of said property in separate parcels for the sum of $ 3,928 to the plaintiff H. B. Cole, and, secondly, "that thereupon at the said time and place and at the request of plaintiff herein and upon his requiring of me that the said property be sold in bulk or lot, I offered for sale, under protest, all of said property, as above described, in bulk and received the bid of H. B. Cole therefor in the amount of six thousand nine hundred and fifty dollars ($ 6,950.00), which was the highest and best bid made for the said property so offered for sale in bulk and I sold all of said property described as follows [descriptions] to the plaintiff H. B. Cole for the sum of six thousand nine hundred and fifty dollars ($ 6,950.00), that being the highest bid made."
Said "amended return" bore date September 3, 1920, although not filed until September 8, 1920, after the defendant D. J. Williams had sought to redeem the property as having been sold in separate parcels, as aforesaid.
On September 14, 1920, said redemptioner, D. J. Williams, tendered to the said sheriff, for execution and delivery to him, a deed conveying the property as first sold in separate parcels and so sought to be redeemed by him as a judgment creditor, as aforesaid. The execution and delivery of the deed was refused by the sheriff, whereupon the said Williams instituted mandamus proceedings in said district court to compel the sheriff to act.
While said mandamus proceedings were pending against the sheriff and said action was being heard before said court, the plaintiff herein, H. B. Cole (who had become a party to said mandamus proceedings by intervention), and the said sheriff moved for a suspension of the trial thereof to enable them to make application in the present case for leave to file an amended return and certificate of sale under the execution or order of sale heretofore mentioned in said foreclosure proceedings. Thereupon the district court ordered that further proceedings before it in the mandamus trial be suspended, and that the said intervenor be given leave to forthwith make an application to the said court in the present case for leave to make and file said amendments. Accordingly, the plaintiffs moved the court ...
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