Victor Gold & Silver Min. Co. v. National Bank of Republic

• Decision Date: 10 July 1897
• Docket Number: 800
• Citation: 49 P. 826,15 Utah 391
• Parties: THE VICTOR GOLD & SILVER MINING CO., APPELLANT, v. THE NATIONAL BANK OF THE REPUBLIC ET AL., RESPONDENTS
• Court: Utah Supreme Court

49 P. 826

15 Utah 391

THE VICTOR GOLD & SILVER MINING CO., APPELLANT, v. THE NATIONAL BANK OF THE REPUBLIC ET AL., RESPONDENTS

No. 800

Supreme Court of Utah

July 10, 1897

Appeal from the First district court, Territory of Utah. W. H. King Judge.

Action by the Victor Gold and Silver Mining Company against the National Bank of the Republic and others. Judgment for defendants. Plaintiff appeals.

Reversed and remanded.

Brown &amp Henderson, for appellant.

Groesbeck could not be the purchaser. Any purchase by him was a redemption and a payment San Francisco Water Co. v Pattee, 86 Cal. 623; Thompson on Corp., vol. 3, secs. 4,072-3; McAllen et al. v. Woodcock, 60 Mo. 174; Madgett v. Fleenor et al., 90 Ind. 517; Wasatch Mining Co. v. Jennings et al., 5 Utah 243; Koehler v. Black River Falls Iron Co., 2 Black 715.

If we look to the findings, we shall see that the main issue in this case the court has failed to find upon. The gist of the action of this plaintiff is that it tried to pay its debt by tendering the amount of money due, to-wit: $ 1075.75, on the 9th day of March. This tender is alleged in the complaint and denied in the answer, but nowhere in the findings is it mentioned or referred to. The absence of such finding on this material question is sufficient to set aside the judgment. People v. Forbes, 51 Cal. 628; Hayne on New Trial, secs. 239-241; Campbell v. Buckman, 49 Cal. 367; Everson v. Mayhew, 57 Cal. 144; Cassidy v. Cassidy, 63 Cal. 352.

This is irregular and improper. The only relief that defendant could have if he was entitled to it was a dismissal of the plaintiff's complaint. Being out of possession, he could not file a bill to quiet title against the party in possession, but must file an action of ejectment. Whittock v. Shattock, 138 U.S. 150; Lewis v. Cocks, 23 Wall. 470; Cates v. Allen, 149 U.S. 451; Frost v. Spitley, 121 U.S. 552.

Booth, Lee & Gray, Dey & Street, and Andrew Howat, for respondent.

It is the general rule of equity jurisprudence that a fraudulent conveyance is good as against the fraudulent debtor or grantor and that the parties will be left in the situation in which they have placed themselves without aid from the courts. The decree establishes that the appellant was in pari delicto with the other defendants. Wait on Fraudulent Conveyances, secs. 395-398; Bein v. Heath, 6 How. 228-247; Kitchen v. Rayburn, 19 Wall. 254-263; Creath's Admr. v. Sims, 5 How. 192-204; Frink v. Roe, 70 Cal. 296-308; Wier v. Day, 10 N.W. 304.

Our statute of frauds only renders conveyances, made with intent to hinder, delay or defraud creditors, void as against the person hindered, delayed or defrauded. "It leaves the conveyance perfectly valid and binding as to the parties to it." II Comp. Laws of Utah, sec. 2838; Rawson v. Fox, 65 Ill. 200-206; Barnes v. Railway Co., 122 (U.S.) 1-15.

The issues found sustain the judgment conclusively and no other findings are necessary. It is found by the trial court that the appellant was not at the time it began suit, nor at the time of judgment, either the owner or entitled to the possession of the property in dispute, and a series of ultimate facts are then found showing a complete title in respondent. Any finding as to the alleged tender would be immaterial. Groome v. Ogden City, 10 Utah 54-59; Chambers v. Emery, 13 Utah 374; Hanks v. Matthews, 8 Utah 183; Windhams v. Bootz, 92 Cal. 617; Dougherty v. Bank, 81 Cal. 163; S. P. R. R. Co. v. Dufour, 95 Cal. 615; Payne & Dewey v. Treadwell, 16 Cal. 221-246.

But we contend that this court cannot review the alleged failure of the trial court to make a finding respecting the tender, for the reason that no exception was taken to the findings on that ground in the court below. Lucas v. San Francisco, 28 Cal. 591; Calderwood v. Brooks, 28 Cal. 151; Warren v. Quill, 9 Nev. 259; James v. Williams, 31 Cal. 211; Tatum v. Massie, 44 P. 494; 2 Comp. Laws of Utah, sec. 339.

The appellant ignores our code and practice entirely, while citing cases relating to federal procedure only. It is well settled that in an action brought to quiet title a defendant out of possession may not only quiet his own title by cross-complaint, but may have a judgment for possession. 2 Comp. Laws of Utah, 1888, sec. 3468; 2 Comp. Laws of Utah, 1888, sec. 3182; Winter v. McMillan, 87 Cal. 264; Kitts v. Austin, 83 Cal. 172; Castro v. Barry, 79 Cal. 443.

ZANE, C. J. BARTCH and MINER, JJ., concur.

OPINION

ZANE, C. J.:

It appears from the pleadings and findings in this case that the plaintiff corporation was the owner of the four mining claims described in the complaint, and that by virtue of an execution issued upon a judgment against it in favor of Tucker & Wallace, they were sold to one Clawson, who received a deed from the sheriff; that afterwards J. M. Wheeler, G. W. Parks, and E. D. R. Thompson obtained judgment against the plaintiff for $ 805.25, and in aid of an execution issued thereon they filed a bill to set aside the deed and sale to Clawson on the ground the money paid by him was furnished by the plaintiff, and that the sale and deed were made to Clawson to prevent the creditors of the plaintiff from collecting their debts. A default was entered, and the deed and sale were set aside, and the property was held to belong to the plaintiff, the mining company, and subject to the executions. The executions were levied upon them as plaintiff's property, and upon the sale Frank Knox, president of the National Bank of the Republic, became the purchaser, for $ 979.01. It further appears that the bank, by virtue of a judgment against William Groesbeck, and an execution thereon, redeemed from the sale to Knox, if the right to do so existed; and, the time for redemption from the bank having expired under the statute, the sheriff executed a deed to the bank. The foregoing facts were alleged in the pleadings and established by the findings of the court. Other facts are alleged in the pleadings, as to the existence and effect of which there is much controversy. The court below found the title to the property in dispute in defendant, and so decreed, and decreed further that the title of the bank should be quieted, and granted a writ of possession. From the decree the plaintiff has appealed, and assigns numerous errors upon the exceptions to the rulings of the court, and to its findings. The appeal was not taken in time to allow us to review the exceptions to the decision on the ground it was not supported by the evidence.

The plaintiff claims it had the right to redeem, under subdivision 1 of section 3443, Comp. Laws Utah 1888, from the sale on the execution of Wheeler et al.; and the bank claims it had the right to redeem as redemptioner under the second subdivision of the same section, and that its redemption was valid in law and in equity. The section is as follows: "Property sold subject to the redemption as provided in the last section, or any part sold separately, may be redeemed in the manner hereinafter provided by the following persons or their successors in interest: (1) The judgment debtor, or his successor in interest in the whole or any part of the property. (2) A creditor having a lien by judgment or mortgage on the property sold, or on some share or part thereof, subsequent to that on which the property was sold. The persons mentioned in the second subdivision of this section are in this chapter termed redemptioners." It appears from the findings that the executions by virtue of which the sale was made from which the Bank of the Republic redeemed was issued on a judgment against the plaintiff and the property sold was levied on as plaintiff's. But the bank claimed on the trial of this case that the sale to Clawson and the sheriff's deed to him passed the legal and equitable title, and the decree in aid of the Wheeler, Parks, and Thompson executions only set that sale and deed aside as to the execution in favor of Wheeler, Parks, and Thompson, and left the title subject thereto in Clawson, in trust for Groesbeck, and that the bank by virtue of its judgment against Groesbeck acquired a lien, by virtue of which the bank was a redemptioner, with the right to make the redemption on which it relied, and, further, that plaintiff, having been divested of its title, had no longer any right to redeem as a judgment debtor. The bank places its right to redeem by virtue of the judgment against Groesbeck (1) on the ground that the plaintiff agreed with Groesbeck and Clawson that the latter should buy the property at execution sale, and the deed should be made to Clawson, and the property held in trust for Groesbeck; (2) because Groesbeck advanced the money which was paid by Clawson upon the purchase; (3) because the plaintiff allowed the sale to remain unquestioned, and took no steps to set the deed or sale aside, for 21 months; (4) because of the apparent acquiescence of the plaintiff, the defendant expended money in establishing Groesbeck's title to the property.

The answer of the mining corporation to the cross complaint of the bank denied the above facts relied upon by the bank, and in its complaint, as amended, and in its answer to the cross complaint of the bank, the plaintiff alleged that Groesbeck before and when the transactions upon which the bank relies occurred, was the president of the...