Openshaw v. Halfin

• Decision Date: 17 March 1902
• Docket Number: 1346
• Court: Utah Supreme Court
• Parties: WILLIAM E. OPENSHAW, a minor, by MATILDA O. YOUNG, General Guardian, Appellant, v. JOHN HALFIN, Respondent

68 P. 138

24 Utah 426

WILLIAM E. OPENSHAW, a minor, by MATILDA O. YOUNG, General Guardian, Appellant, v. JOHN HALFIN, Respondent

No. 1346

Supreme Court of Utah

March 17, 1902

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

Action to compel the cancellation by defendant of a mortgage which he held upon certain real estate of the plaintiff. From a judgment in favor of the defendant, the plaintiff appealed.

AFFIRMED.

Messrs Rawlins, Thurman, Hurd & Wedgwood for appellant.

In all actions brought to compel the cancellation of any mortgage if it appears that the defendant has wrongfully refused to cancel the same, the plaintiff is entitled by the provisions of section 2006 of the Revised Statutes of 1898, in addition to the relief of cancellation, to recover not only such actual damages as he may have sustained, but also a reasonable attorney's fee for the prosecution of such action. Rev. Stat. 1898, sec. 2006, p. 470.

The provision of the various statutes providing for the recovery of an attorney's fee in this class of cases is nothing more or less than a penalty inflicted for the willful failure of any person to perform a plain duty enjoined upon him by statute--a duty which he owes not only to the mortgagor, but likewise to the public.

Recognizing this fact, the Legislature of every State in the union has imposed upon the mortgagee a like duty to that imposed by the provisions of the statute in question. 15 A. and E. Ency. Law, 878; 2 Jones on Mortgages, (2 Ed.), sec. 989.

It is universally held that a statute requiring railroad companies to fence their tracks, and imposing double or even treble damages for stock killed on account of defective fences, is constitutional. Missouri P. Ry. v. Humes, 115 U.S. 512; Minneapolis and St. Louis Ry. v. Emmons, 149 U.S. 364, 367; Atchison, Topeka and Santa Fe R. R. v. Matthews, 174 U.S. 96, 106.

We can conceive of no difference in principle between the imposition of a penalty for failure to fence its tracks by a railroad company and one imposed upon a person who wrongfully and willfully, or maliciously, refuses to cancel a mortgage in his favor, wrongfully incumbering the public records and clouding the title to the property of an individual.

The recovery of attorney's fees, as an element of damages, in this class of cases is, we contend, irrespective of the statute, also supported by the weight of reason and authority. 1 Sutherland on Damages, p. 142; New Haven & Northampton Ry. Co. v. Hayden, 117 Mass. 433; Pond v. Harris, 113 Mass. 114; Westfield v. Mayo, 122 Mass. 100; Ah Thaie v. Quan Wan et al., 3 Cal. 216.

Messrs. Pierce, Critchlow & Barrette for respondent.

We are unable to see any distinction between the case at bar and the case of Brubaker v. Bennett, 19 Utah 401, heretofore decided by this court. We rely absolutely upon that authority.

Furthermore the plaintiff was not entitled to recover attorney's fees either in equity or upon any principle of law with which we are conversant. We believe the law is thoroughly settled that whenever one seeks to make a tender a basis of affirmative relief the money must be paid into court where the creditor can get it if he desires, and this fact must be alleged in the pleadings. 25 Ency. 932; 1 Jones on Mortgages, (5 Ed.), sec. 899; Cruikshank v. Gordon, 118 N.Y. 178; Nelson v. Loder, 132 N.Y. 292; Becker v. Boon, 61 N.Y. 321; Tuthill v. Morris, 81 N.Y. 94; 3 Estes Pleadings, (4 Ed.), sec. 5362; Bryan v. Maume, 28 Cal. 238; Parker v. Beasley, 33 L.R.A. 232, and note; Himmelmann v. Fitzpatrick, 50 Cal. 650; Crain v. McGoon, 29 A. R. 37.

BASKIN, J. MINER, C. J., and BARTCH, J., concur.

OPINION

BASKIN, J.

--This is an action to enforce the cancellation by defendant of a mortgage which he held upon certain real estate of the plaintiff. The complaint alleges that the plaintiff at various times before the institution of the action tendered to the defendant the amount due on the note which the mortgage was given to secure, and requested the defendant to release said mortgage, and that the defendant refused, and still continues to refuse, to accept said tender and cancel the mortgage. The answer denied the tender alleged in the complaint, and alleged that "said plaintiff ought not to recover any attorney's fees, because that part of section 2006 of the Revised Statutes of 1898 providing for an attorney's fee is unconstitutional and void, because it denies to the defendant the equal protection of the law, in that it gives the plaintiff an attorney's fee if he obtains judgment, but it does not make the same provision for the defendant if he secures judgment against the plaintiff and that the defendant has always been ready and willing to accept the amount due on said note and mortgage, and release said mortgage, and offered to do so before filing his answer. Wherefore he prays that plaintiff take nothing." The trial court found that the alleged tender and requests for the release were made, and that the defendant refused to cancel or discharge the mortgage. It further appears from the findings of the trial court that after the institution of the suit the defendant accepted the amount tendered by the plaintiff, and on the day of the trial cancelled the mortgage; that the amount tendered was paid and received with the express and distinct understanding that the action should be continued for...