Loofbourow v. Hicks

Decision Date13 November 1901
Docket Number1306
Citation66 P. 602,24 Utah 49
CourtUtah Supreme Court
PartiesC. F. LOOFBOUROW and F. C. LOOFBOUROW, Co-Partners, Appellants, v. JOANNA W. HICKS and FLOY F. HICKS, Respondent

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action to enforce a lien for attorney fees adjudicated and made a part of the judgment in an action of foreclosure against the purchaser at foreclosure sale. From a decree in favor of the defendant, Floy F. Hicks, the plaintiffs appealed.


Messrs Thompson & Gibson for appellants.

The undisputed evidence shows that a lien was adjudged in favor of appellants in the foreclosure case of Joanna W. Hicks against Agnes Edwards, and against the property involved in that action; that the respondent, Floy F. Hicks, became the owner of the judgment in said cause and was the real plaintiff in the execution issued in said cause and bought in the property as such execution plaintiff, thus connecting herself directly with the foreclosure proceeding, and she has not paid the amount of her bid made at said foreclosure sale in that she has refused to pay the sum adjudged to appellants as their attorney's fees in the decree of foreclosure in said cause; that said Floy F. Hicks is still the owner of said premises through and by virtue of said foreclosure proceedings, and the sole owner, and no right of any third person in said premises has attached or intervened. Upon such undisputed evidence the judgment of the court, following Gray v. Denhalter, 17 Utah 312, should have been for the appellants that they were entitled to make the amount of their said judgment out of said property.

The court erred in making its fifth finding of fact which states "That the plaintiffs herein have by their laches and delay, acts and conduct, waived the right to have said sale vacated or set aside, or have any lien in their favor upon the property described in the complaint," for the reasons:

First. That said finding is not a finding of fact but a conclusion of law.

A mere allegation that something is or has been waived is only a conclusion of law and not a statement of fact. Phinney v. Ins. Co., 67 F. 493.

Second. That no defense of waiver was pleaded by the respondent and the question of waiver was not within the issues involved in the cause.

Waiver must be set up in the answer and proved as a defense. Seymour v. McKinstry, 106 N.Y. 230.

In the above case an equitable lien was enforced, to-wit: a vendor's lien, and it was held that the defense that said lien had been waived must be specially pleaded.

Justice Danforth, speaking for the court, says that it is a defense founded upon new matter; that the plaintiff's lien, as an unpaid vendor, is good against the vendee and against the whole world, unless waived by the vendor or defeated by the alienation of the property by the vendee to a purchaser without notice; that it was not necessary for the plaintiff in the case to allege that he had not waived his lien, as the defendant must both allege and prove such waiver.

Where a fact is found outside of any issue, it is nugatory and of no effect, and can not be considered as supporting the judgment. Maynard v. Ins. Co., 14 Utah 458.

Third. That said fifth finding, considered as conclusion of law, is not supported by any finding of fact.

The conclusions of law must be supported by the findings of fact. Salt Lake City v. Colladge, 13 Utah 522.

Fourth. That there was no evidence of laches on the part of appellants. Hamilton v. Dooly, 15 Utah 280.

As is said by Mr. Justice FIELD in Insurance Co. v. Eldredge, 102 U.S. 545:

"It can not be averred that the claim is a stale one when asserted within the period allowed by law, and no rights of third parties as bona fide purchasers have intervened to render inequitable the assertion of the original lien."

The situation of the parties was, when this suit was instituted and now is, exactly the same as at the time the property in controversy was sold under the decree in foreclosure. No rights of innocent third parties have intervened; no act has been done or omitted by these appellants which has in any way changed the rights of the respondent nor upon which either laches or waiver can be based.

We respectfully ask that the decree of the lower court be set aside and that the case be remanded to the court below with instructions that a decree be entered granting to these appellants the relief prayed for together with costs in both courts.

Messrs. Dey & Street, and W. H. Bramel, Esq., for respondent.

As to the second point urged, an answer is easily found. The evidence does not show, nor does the complaint allege that plaintiffs were ever adjudged to have a lien on the premises in question. The admitted facts in this regard are that the proceeds of the foreclosure sale--not the land--should be applied, among other purposes, "third, to the payment of attorneys' fees as assessed." There is nothing in the evidence about any lien, nor does the complaint speak of any lien, except the lien on the proceeds of the sale. It was never contemplated by the court or by any of the parties to the suit that any lien for attorney's fees should attach to the land in the hands of an innocent purchaser for value.

As to the third point in appellants' brief, it may be remarked that they complain of a finding which is alleged to be merely defective in not specifying the particular acts constituting the waiver.

There is no contention to the effect that there is any evidence to establish anything more favorable to defendant in lieu of this finding. Even if it be conceded to be a conclusion of law, it is drawn from such facts set out in plaintiffs' complaint, as are found true by the court, and it matters not whether it be called a finding of fact or a conclusion of law. If the facts set up by plaintiff show that by reason of laches, waiver, payment, or any other circumstances he has no cause of action, the matter is already pleaded, and it is not necessary for defendants to cumber the record by re-pleading it. The facts of plaintiffs' complaint incorporated into the findings show the acts, conduct, laches and waiver referred to in the findings which appellants challenge. Jones v. Clark, 42 Calif. 180; Spargur v. Heard, 90 Calif. 221.

The Supreme Court of Utah, in Gray v. Denhalter, 17 Utah 319, in speaking of a case where the real party in interest in a suit purchased the property, said: "So, likewise, as such party, he was liable to have conditions of the decree and sale enforced against him at any time before the commissioner had made his report as directed in the decree, and the sale has been confirmed, and final disposition of the cause made." Thus, according to the view of this court, an attorney seeking to enforce his lien for fees given in a decree of sale must take action before the sale becomes final. The particular sale involved in this case became final at least three years before suit to enforce the lien was started.

There is not one scintilla of evidence which shows, or from which it may be inferred, that appellants ever intended to look to the land for their fees at any time prior to starting this suit. There is no evidence showing that Floy F. Hicks was ever notified of any claim against the land except through this suit. But, to the contrary, it appears throughout the whole case, from acts and conduct, from the sale, the receipt, the deed, the delay, the relationship of parties and every other element, that appellants intended to waive all claims against the land, and that intention was fully carried out.

MINER, C. J. BARTCH, J., concurs. BASKIN, J., concurs in result.



The respondent, Joanna W. Hicks, who resided in the State of Ohio with her daughter, the co-respondent, Floy F. Hicks, through her agent and attorney in that state employed the appellants a firm of attorneys in Salt Lake City, in the year 1897, to foreclose a mortgage held by her against Mr. Edwards of Salt Lake City, amounting to $ 1,400, the payment of which was secured upon real estate situate in the latter city. Proceedings were instituted by the appellants in accordance with instructions, and a decree of foreclosure and a sale of the property duly obtained for the sum due on the mortgage, including costs, and the further sum of $ 150, allowed and decreed to be paid as attorney's fees for the plaintiffs in such foreclosure proceedings. It was provided in such decree that the proceeds of the sale thereof should be applied (1) to the payment of the costs of sale; (2) to the payment of the costs of the foreclosure proceedings; (3) to the payment of the attorney's fees as allowed by the decree; and (4) to the payment of the amount due the plaintiff on the judgment. The order of sale was duly obtained, and the mortgaged property was sold by the sheriff. By direction of Joanna W. Hicks and Mr. Badger, her attorney, in Ohio, in pursuance of an arrangement made between them, the property was bid in by the appellants in the name of Floy F. Hicks, and she has since,...

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2 cases
  • Salt Lake Investment Co. v. Fox
    • United States
    • Utah Supreme Court
    • 28 Mayo 1907
    ... ... findings are nugatory and should be disregarded. (Maynard ... v. Insurance Co., 14 Utah 458; Loofbourow v ... Hicks, 24 Utah 49; Sowles v. Clawson, 28 Utah ... It is ... manifest, then, that Moon's possession was not hostile in ... its ... ...
  • Miller v. Monroe, 5717
    • United States
    • Idaho Supreme Court
    • 1 Junio 1931
    ... ... ( ... Porter v. Hanson, 36 Ark. 591; Wooten v ... Denmark, 85 Ga. 578, 11 S.E. 861; Loofbourow v ... Hicks, 24 Utah 49, 66 P. 602, 55 L. R. A. 874; ... Skinner v. Busse, 38 Misc. 265, 77 N.Y.S. 560.) The ... later New York cases are so ... ...

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