Young v. Schroeder

• Decision Date: 04 June 1894
• Docket Number: 437
• Citation: 10 Utah 155,37 P. 252
• Court: Utah Supreme Court
• Parties: JOHN M. YOUNG, RESPONDENT, v. A. T. SCHROEDER AND WIFE, APPELLANTS. [1]

37 P. 252

10 Utah 155

JOHN M. YOUNG, RESPONDENT, v. A. T. SCHROEDER AND WIFE, APPELLANTS. ^[1]

No. 437

Supreme Court of Utah

June 4, 1894

APPEAL from the district court of the third judicial district, Hon G. W. Bartch, Judge.

Action by John M. Young against A. T. Schroeder and wife to obtain a decree adjudging certain deeds, executed by the U.S. marshal pursuant to certain execution sales, to be fraudulent, and that the plaintiff be permitted to redeem from such sales notwithstanding the statutory time for redemption had expired, and that the defendants be required to convey to him the property mentioned and described in said deeds. From a decree for plaintiff, defendants appeal.

Affirmed.

Messrs Rawlins & Critchlow and Messrs. Jones & Schroeder, for appellants.

The court erred in permitting plaintiff to testify about a conversation had with Stephens relative to the redemption of the property. Stephens is not a party to the suit, and it related to a matter foreign to the scope of the partnership business. At the time plaintiff did not know that either Stephens or Schroeder had any interest in or control over the property. Jackson v. Bartless, 8 Johns. 381; 4 L.Ed. 57; Anderson v. Tompkins, 1 Fed. Cas. 851, No. 365. The mere relation of joint ownership of property is not enough to constitute each owner the agent of the other to bind him by fraud. 1 Bige. on Fraud, 223. Plaintiff and his cotenants had divided the land into distinct lots, and a conveyance of all plaintiff's interest in any one lot is valid and effectual against his cotenants. Freeman on Coten. 282, § 208; Butler v. Roys, 25 Mich. 53; S. C. 12 Am. Rep. 218; Jackson v. Newton, 18 Johns. 355.

The court found that at the date of the first sale, Stephens did not know of the existence of any other property, and then in another finding that he had formed an intention to exhaust all of plaintiff's property. Inconsistent findings will not sustain a judgment. Reese v. Corcoran, 52 Cal. 495; Manley v. Howlet, 55 Cal. 94; Harris v. Harris, 59 Cal. 116; Kloss v. Alleman, 64 Cal. 87. There were three separate sales under two different executions. The court cannot grant entire relief in one action unless there was a common fraudulent intent as to all. Finding 10 makes such intent impossible. 2 Comp. Laws, § 3220; Wallen v. Ruskan, 12 How. Pr. 28; Henderson v. Jackson, 40 How. Pr. 168. As long as a judicial sale stands, the purchase price as between the parties is a conclusive test of its value. Snyder v. Blair, 33 N. J. Eq. 208. Where there is a conflict of evidence on material issues, the finding of the court is not conclusive on appeal, like the verdict of a jury or the finding of a common law court, and the supreme court will review the facts as well as the law. Kelley v. Carker, 55 Ark. 112; S. C. 17 S.W. R. 706; Cheney v. Roodhouse, 135 Ills. 25; Droster v. Mueller, 103 Mo. 624; U. S. v. Old Settlers, 148 U.S. 427; 37 L.Ed. 587. Fraud on the part of the purchaser must be shown, in addition to inadequacy of consideration. Simmons v. Vandegrift, 1 N. J. Eq. 55. There must be fraud to give a court of equity jurisdiction. Irregularity is not sufficient. Cavanaugh v. Jakeway, Walker Ch. 344; Hansford v. Barber, 3 A. K. Smith, 515. Some knowledge and participation in the act claimed to be fraudulent must be proved upon the party sought to be charged. The mere relationship of joint ownership to the property is not enough to constitute each owner the agent of the other to bind him by false representations in an unauthorized sale of the whole property. Bige. on Fraud, 223; Holmes v. Wood, 32 Ind. 201; Arthur v. Griswold, 55 N.Y. 400; Perry v. Hale, 143 Mass. 540; S. C. 10 N.E. 174.

The court nowhere finds that the defendant is guilty of actual fraud, and a failure so to find is equivalent to a finding against the plaintiff. Elliot App. Proc. § 757; Young v. Berger, 32 N.E. 318. Even where the price paid is inadequate, in order to avoid the sale, it must be shown that the purchaser is in some measure responsible for it. White v. Wilson, 14 Ves. Jr. 151; Graffam v. Burgess, 117 U.S. 180; Russel v. Pew, 31 P. 77; Hudgens v. Morrow, 47 Ark. 515. The plaintiff, the judgment debtor, knew of the execution sales and could have directed the officer, and having failed to do so cannot now complain of his own negligence. 2 Comp. Laws, § 3436; Jones v. Townsend (Tenn.), 5 Cen. Law J. 202. Where there is time for redemption allowed by law, the judgment debtor must redeem or make a motion to have the sale set aside before the time of redemption expires. Powers v. Larabee, 57 N.W. 791, and cases; Jones v. Townsend (Tenn.), 5 Cent. Law J. 202; Coolbaugh v. Roemer, 32 Minn. 445; Jenkins v. Merriweather, 109 Ill. 647; Stewart v. Marshal, 4 G. Green (Ia.), 75; State Bank v. Noland, 13 Ark. 299; Love v. Cherry, 24 Ia. 210; Chambers v. Stone, 9 Ala. 260; Abercrombie v. Conner, 10 Ala. 292; 2 Freeman on Exec. § 306, p. 1039; Fletcher v. McGill, 110 Ind. 406; Rigney v. Small, 60 Ill. 416; Johnson v. Murray, 112 Ind. 154; Richey v. Merritt, 108 Ind. 347, 9 N.E. 368; Levan v. Milholland, 114 Pa. St. 49.

In order to create an estoppel in pais, the representation must relate to a present or a past state of things. Langton v. Doud, 10 Allen, 433; Jackson v. Allen, 120 Mass. 79; White v. Ashton, 51 N.Y. 280. An estoppel from the representation of a party can seldom arise, except where the representations relate to a fact, to a present or past state of things. Union Life Ins. Co. v. Mowry, 96 U.S. 549, 24 L.Ed. 676. The party estopped must have intended that his misrepresentations should be acted upon by the party who asserts the estoppel. Zuchtman v. Roberts, 109 Mass. 53. An attorney may purchase at an execution sale subject to the right of his client to claim the benefit thereof. Smith v. Black, 115 U.S. 308, 29 L.Ed. 398; Allen v. Gillett, 127 U.S. 589, 32 L.Ed. 271; Mining Co. v. Mason, 145 U.S. 340, 36 L.Ed. 736. A levy upon part of a tract held as tenant in common is good as against judgment debtor. The only persons who can complain are his cotenants. Gregory v. Tozier, 24 Me. 308; Goodwin v. Gregg, 28 Me. 188; Varnum v. Abbott, 7 Am. Dec. 87. In case the officer, after offering the property separately, sells en masse, such a sale is good. Hill v. F. M. N. B., 97 U.S. 450; Van Valkenberg v. Trustees, 66 Ill. 103; Mugge v. Ginger, 59 Ind. 195.

Mr. W. H. Dickson and Messrs. Williams, Van Cott & Sutherland, for respondents.

MERRITT, C. J. MINER and SMITH, JJ., concur.

OPINION

MERRITT, C. J.:

This action was brought to obtain a decree of the court adjudging certain deeds (mentioned in the complaint, and executed by the United States marshal of Utah territory pursuant to certain execution sales made under a judgment obtained in the third district court by Clark, Eldredge & Co., a corporation, against John M. Young, the plaintiff, and others) to be fraudulent, and that the plaintiff be permitted to redeem from such sales, notwithstanding the statutory time for redemption had expired, and that defendants be required to convey to him the property mentioned and described in said deeds and complaint. This relief was sought on the ground of gross inadequacy of the price obtained at such sales, coupled with a great number of irregularities attending the sales, which led to the sacrifice of plaintiff's property. The alleged irregularities are specifically set forth in the complaint, and also in the findings of the court below. Upon the filing of the complaint the defendants Frank B. Stephens and wife made a satisfactory settlement with the plaintiff, and in pursuance thereof conveyed to him all their interests in the property in controversy, and the suit as to these defendants was thereupon dismissed. After that the defendants Schroeder and wife filed their answer, and a trial was had, which resulted in a judgment and decree in favor of plaintiff substantially as prayed for in the complaint, from which decree, and the order denying a new trial, this appeal is prosecuted.

The findings of fact made by the court below are very full. We have carefully examined the record, and are satisfied that they are fully sustained by the evidence. From these findings it appears that on the 9th of February, 1891, Clark, Eldredge & Co., a corporation, commenced an action against John M Young (the plaintiff herein), Henry Goddard, and George Goddard to recover $ 1,640.61, with interest from January 3, 1891. That afterwards a judgment by default was entered against the plaintiff (John M. Young) on March 6, 1891, for $ 1,673.36, and costs amounting to $ 30.50, said judgment bearing interest at 1 per cent. per month. That Frank B. Stephens and A. T. Schroeder, partners, were the attorneys for Clark, Eldredge & Co. in said action; that the plaintiff, John M. Young, and his sister, Lydia Y. Merrill, were the owners in fee, as tenants in common, of all of that part of lot 2, block 70, Plat A, Salt Lake City survey, commencing 64 1/2 feet west from the northeast corner of said lot 2, thence west 61 1/2 feet, thence south 20 rods, thence east 94 1/2 feet, thence north 90 3/4 feet, thence east 31 1/2 feet, thence north 41 1/4 feet, thence west 16 1/2 feet, thence north 148 1/2 feet, thence west 48 feet, thence north 49 1/2 feet, to the place of beginning; and also lot 12 in block 8, Five-Acre Plat A, Big Field survey, in Salt Lake county, Utah. That the title of the plaintiff and Lydia Y. Merrill in each of said properties was derived from the last will and testament of John Young, deceased, father of said John M. Young and Lydia Y. Merrill, and was subject to a right in Sarah Milton Young and Ann Olive Young to receive each one-fourth of the income arising from said properties during their respective lives. That the plaintiff's...