Thompson v. Avery

• Decision Date: 16 March 1895
• Docket Number: 551
• Court: Utah Supreme Court
• Parties: JAMES THOMPSON, RESPONDENT, v. FRANKLIN C. AVERY, APPELLANT. [1]

39 P. 829

11 Utah 214

JAMES THOMPSON, RESPONDENT, v. FRANKLIN C. AVERY, APPELLANT. ^[1]

No. 551

Supreme Court of Utah

March 16, 1895

APPEAL from the District Court of the Third Judicial District. Hon Samuel A. Merritt, Judge.

Action by James Thomson against Franklin C. Avery. From a judgment for plaintiff, defendant appeals.

Affirmed.

Messrs Ritchie & Ritchie, for appellant.

It is not disputed that the note was in no event due before April 27, 1891; that Avery produced, April 13, sufficient money to pay it and from that time was ready to pay it whenever Thompson cleared up the title to the property; that Thomson received, April 16, $ 2,561 of the money and delivered the note to the bank marked paid and released his mortgage leaving in the bank $ 1,800. The only disputed matters of fact in the case are what agreement was made on that day, and what instructions Thomson gave the bank when he delivered the note. If Thomson's story is true, he made the bank his agent to hold and deliver the note to him, and when the bank sent it to Avery stating it to be canceled, that it was an act of Thomson's agent and binds him, as by it the note was canceled, and if any wrong was done the plaintiff he must sue the bank and not Avery. The verdict is contrary to law, because the release in the words "I hereby satisfy this mortgage of record and declare the indebtedness thereby secured fully paid," is a legal discharge of the note, and a complete bar to a suit upon it. 2 Daniel, Nego. Inst. 1287-8, 1290; 2 Comp. Laws Utah, § 2641; 4 Gilman, 536, 543; Succession of Mrs. Foerster, 43 La. Ann. 190; U. S. v. Childs, 12 Wall. 232, 243; Baker v. Nactrieb, 19 How. 126. A receipt in full in absence of allegation and evidence that it was given in ignorance of its purport or under duress is an acquittance in bar. De Armand v. U.S. 151 U.S. 491; see, also, Hager v. Thompson, 1 Black, 80. The judgment of the United States v. Bergen was a lien on the land when the action was brought. Rev. Stat. U. S. § 716; 10 Wheat. 23. Such liens as means of enforcing satisfaction of judgments had existed since Edward First's time (13 Edw. I. ch. 18), by virtue of a writ of elegit. Mansingill v. Downs, 7 How. 765, 766; U. S. v. Morrison, 4 Pet. 124; Morsell v. First National Bank, 91 U.S. 357; Cooke v. Avery, 147 U.S. 389. The history of judgment liens on realty goes back to the year 1285, when by this statute of 13 Edward I, called the statute of Westminster 2d, the writ of elegit was created. The writ of elegit only permitted half the debtor's lands to be taken and held by the creditor until the profits would pay the debt. 1 Black on Judg. § 397; Cooke v. Avery, supra; Porter's Lessee v. Cocke, Peck (Tenn.), 30; U. S. v. Morrison, supra.

In 1732, by the statute of George II, ch. 7, § 4, it was enacted for the first time that lands in the American colonies might be sold for debt. Porter v. Cocke, supra; U. S. v. Morrison, supra; Massingill v. Downs, supra; Tayloe v. Thompson, 5 Pet. 369. By the common law itself debts due the king were always liens on the lands of the debtor. Magna Charta, ch. 8; Blackstone, *419, 420; 1 Black. Judg. § 397. The powers of sovereignty passed to the states of the Union and to the federal government, being divided between them in their respective spheres. Dollar Savings Bank v. United States, 19 Wall. 239, and cases there cited. Statute Staple, 33 Henry VIII, c. 39, gave a larger lien than the statute creating the writ of elegit, because it covered all the debtor's lands instead of half. 3 Blackstone, *420; 2 Blackstone, *160; Anderson Law Dic. 972. Whatever powers were in these various ways conferred upon and possessed by the English courts to enforce the king's judgments, were conferred upon the federal courts. Rev. Stat. U. S. 716; 10 Wheat. 23, 24. We call attention to the following principles: Time does not run against the sovereign. 1 Black. Com. 88; U. S. v. Thompson, 98 U.S. 486. Its judgment is never barred. U. S. v. Thompson, supra; Stanley v. Schwalby, 147 U.S. 514; 13 A. & E. Ency. 712, and many cases cited. The lien is inseparable from the judgment. Massingill v. Downs, supra. Its judgment needs no scire facias nor other method of revivor to keep it alive. The lien continues as long as the judgment does. Commonwealth v. Baldwin, 1 Watts (Pa.), 54; 1 Salkeld, 603; Nimms v. Com., 4 H. & M. (Va.) 70, 71n. No statute includes the sovereign unless it is expressly named. Dollar S. Bk. v. U.S. supra; Jossellyn v. State, 28 Miss. 753, 762; Swan v. Gaston, 87 Ala. 569; U. S. v. Herron, 20 Wall. 257; U. S. v. N., etc., Ry., 118 U.S. 125; U. S. v. Insley, 130 U.S. 266. When a right of the state or sovereign power is involved in a case of doubt, all doubts are resolved in favor of the state. Des Moines Co., Iowa v. Harker, 34 Iowa 84-86; Trustees v. Auditor, 80 Ky. 341; Hardin v. Taylor, 4 B. Mon. 523; Stoughton v. Baker, 4 Mass. 522, 528; State v. School Dist., 24 Kan. 237, 242.

Mr. J. E. Darmer, Messrs. Loofbourow & Kahn, for respondent.

KING, J. BARTCH and SMITH, JJ., concur.

OPINION

KING, J.:

The complaint in this case, which was filed March 7, 1892, declares on a promissory note for $ 4,000, dated February 27, 1890, due one year after date, with 8 per cent. interest from date and attorney's fees, and which contains the following provision: "It is hereby expressly agreed and understood between the maker of this note and the payee, James Thompson, that this note is not payable, in any event, until present incumbrances and defects in the title to the premises, for which this note is given in part payment of purchase money, are removed, and the title made good and marketable, the title to be so approved by the Salt Lake Abstract, Title Guarantee & Trust Company, of Salt Lake City, Utah." The complaint describes the premises in controversy, and alleges that by April 27, 1891, all incumbrances had been removed, the title made good and marketable, and approved by the abstract company named; all conditions of the note had been performed, and it was fully due, and that plaintiff had intrusted the note to the Commercial National Bank of Salt Lake City, to be delivered to defendant only upon full payment, and that the bank wrongfully delivered it to the defendant without full payment; that $ 3,431 had been paid thereon. Judgment is prayed for in the sum of $ 1,001.64, with interest from March 7, 1892, and $ 200 attorney's fee. Defendant's answer admits the execution of the note, and that it was given in part payment of the premises described; denies that on April 27, 1891, all incumbrances and defects in the title had been removed, or that it was then good and marketable, or that the said abstract company had approved the title, or that the conditions of the note were fully performed, or that the note was then due, or that the bank wrongfully delivered the note to the defendant, or that any sum is due thereon; it alleges that plaintiff conveyed the premises to defendant by warranty deed; that among the incumbrances existing April 27, 1891, was a judgment lien for $ 1,200, interest and costs, by virtue of an unsatisfied judgment rendered and docketed April 26, 1886, in the Third District Court of Utah, in favor of the United States and against John Bergen, then owner of the premises; that defendant deposited before April 16, 1891, in said bank, $ 4,361, to fully pay said note, when all its conditions were performed; that on April 16, 1891, in consideration of $ 2,561 of said money, then paid plaintiff, and of an agreement between him and defendant then made that said bank should retain $ 1,800 until the title was perfect, and made good and marketable, plaintiff canceled the note by writing across its face, "Received payment in full, April 16th. James Thompson,"--and authorized its delivery to defendant. The answer further alleges that the note has been paid in full, and disclaims ownership of the money held in the bank.

The case was tried April 17, 1894, before a jury. The plaintiff offered in evidence a certificate of the Salt Lake Abstract, Title Guarantee & Trust Company. The defendant admitted its execution by said company, and that $ 200 was a reasonable attorney's fee. Plaintiff then rested, and defendant moved for a nonsuit, which motion was denied. Testimony was then offered by the defendant, and in rebuttal the plaintiff testified at length. While there is some dispute in the testimony offered by the respective parties, it tends to establish the following facts:

That at the time said note was executed plaintiff was the owner of the premises mentioned, which were situate in Salt Lake City and conveyed them to the defendant by deed of warranty, taking in part payment the note above referred to, together with a mortgage from the defendant upon the same premises to secure its payment. This property had formerly been owned by one John Bergen, and, while he so owned it, a judgment had been rendered against him, on the 26th day of April, 1886, in the Third District Court of Utah, based on four counts in one indictment charging him with the crime of unlawful cohabitation. The judgment was for $ 300 on each count and costs, and had not been paid. Subsequently Bergen sold the property to plaintiff's grantor, taking a mortgage in part payment, which plaintiff had assumed. The latter was withholding payment on the Bergen mortgage to protect himself against the judgment which had been rendered against Bergen, until such time as it should be paid, or cease to be a lien on the property. The incumbrances referred to in defendant's note which were to be removed were the Bergen mortgage and the judgment against him. On the 13th of April, 1891, defendant sent to the Commercial National Bank of Salt Lake City $ 4,361, accompanied by a...