Marks v. Taylor
| Citation | 65 P. 203,23 Utah 470 |
| Court | Supreme Court of Utah |
| Decision Date | 01 May 1901 |
| Parties | ANNA MARKS, Respondent, v. THOMAS E. TAYLOR et al., Appellants |
On rehearing. Modified.
For former opinion, see 23 Utah 152, 63 P. 897.
Case remanded, with instructions.
At a previous term we affirmed the judgment of the lower court in this case. The opinion then delivered is reported in 63 P 897. The appellants made a motion for a rehearing, which was granted. The facts are fully stated in the former opinion. The facts pertinent to the present hearing are as follows: A mortgage executed by appellants to the respondent to secure a promissory note was foreclosed in the court below, and at the sale of the real property described in the mortgage the respondent purchased the same, and after the expiration of the time for redemption the sheriff executed to her a deed. Some time afterwards she discovered that a valuable part of the real estate which it was intended the mortgage should include was, by the inadvertence and mistake of the party who drew the same, not included in the description of the mortgage as executed. The description of the property, both in the decree of foreclosure and the sheriff's deed, was the same as the description in the mortgage. The present action was instituted in the court below to reform the mortgage, decree, and sheriff's deed, so as to include that portion of the real estate so erroneously omitted, and upon the hearing that relief was granted.
The provisions of the statute, in relation to sales of real property under decrees of foreclosure, require the notice of sale to particularly describe the premises ordered to be sold. In said foreclosure proceedings the property ordered to be sold was described by metes and bounds, courses and distances, the same as it was described in the mortgage as executed, and as in the sheriff's deed; and, while the notice of sale is not contained in the record in the absence of any showing to the contrary the presumption is that it described the property to be sold as the same was described in the decree of foreclosure. So that it appears that the premises mentioned in the decree, advertised for sale, purchased by and deeded to the said Anna Marks, the respondent, are not the same as the premises described in the mortgage as reformed by the decree of the lower court.
The decree of the lower court, if affirmed by this court, would invest the respondent with the title to property which was neither ordered to be sold, advertised, or offered for sale or sold by the sheriff to her. It is true that she thought that the property intended to be mortgaged was the property offered for sale, and evidently bid in the property with that understanding, but it does not appear that other bidders, if any others were present at the sale, had the same understanding. If the property included in the reformed mortgage had been...
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...p. 33; Van Pelt v. Park; 18 Utah 141; Canal Co. v. Edwards, 9 Utah 477; Sterling v. Parsons, 9 Utah 81; Gill v. Hecht, 13 Utah 5; Marks v. Taylor, 23 Utah 470; Genter v. Co., 23 Utah 165.) Where the injury concerns the rights in personal property, the venue may be laid in any county where d......
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...Mudgett, 199 S.W. 337 (Tex.Civ.App.1917); Miller v. Kolb, 47 Ind. 220 (1874); Schwickerath v. Cooksey, 53 Mo. 75 (1873); Marks v. Taylor, 23 Utah 470, 65 P. 203 (1901); see also State v. Kahua Ranch, Ltd., 47 Haw. 28, 384 P.2d 581 (1963), opinion adhered to, 47 Haw. 466, 390 P.2d 737, rehea......
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...McCasland v. Aetna Life Ins. Co., 108 Ind. 130, 9 N.E. 119; Fisher v. Villamil, 62 Fla. 472, 56 So. 559, 39 L.R.A.,N.S., 90; Marks v. Taylor, 23 Utah 470, 65 P. 203. There was no error in overruling the motion to dismiss. We find no abuse of discretion in ordering the case to trial without ......
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