17 Utah 312 | Utah | 1898
This case results from a failure of the appellant, who purchased certain property at a foreclosure sale under a deed of trust, to comply, as is claimed, with the terms of the decree of foreclosure respecting a certain sum directed to be paid as an attorney’s fee. It appears from the record that the plaintiff, M. J. Gray, bad previously purchased the same property at a sale made under a second trust deed, and afterwards brought an action in ejectment for the property against the Denhalters, and, still later on, a suit in equity for the appointment of a receiver to take charge of the property. In the equity suit, the Jarvis-Conklin Mortgage Trust Company was made a defendant. J. H. Bacon was the trustee in both trust deeds, and the agent of the defendant trust company. Respondent J. W. Judd was its attorney, and filed a cross complaint for it in the equity suit, joining in the prayer for a
There is some conflict in tbe evidence as to whether tbe respondent was employed as tbe attorney of Bacon or of tbe trust company, but tbe court found that be represented tbe trust company, and this, we think, is supported by tbe proof. Bacon was appointed in tbe decree of foreclosure special commissioner to sell tbe property, and out of tbe proceeds was to retain bis fees; then pay to J. W. Judd, attorney for cross complainant, $1,000 as attorney’s fees; and, after having paid tbe costs, turn tbe balance over to tbe cross complainant or its attorney, in payment of the sum of $23,793, found due on tbe trust deed, and interest. At tbe sale tbe property was bid off by tbe appellant, Crebbin, tbe then owner of tbe debt and judgment, for $25,300. Tbe commissioner executed a certificate of sale, but payment of attorney's fee was refused; nor does it Appear that any part of tbe purchase price was paid to tbe commissioner. Thereupon tbe respondent Judd moved tbe court for a resale of tbe property. Tbe court granted tbe motion, and ordered that appellant, Crebbin, pay to J. W. Judd, $1,000, within 30 days from a certain date, and, upon failure thereof, that “tbe premises be sold to pay tbe several amounts provided for in tbe decree, including tbe attorney’s fee” and costs. This action of tbe court is made tbe basis of complaint by tbe appellant on this appeal.
Tbe decisive question appears to be whether tbe respondent bad such an interest in tbe decree, and in lien upon the property, as would authorize the court upon motion
The statute referred to provides (section 1): “In alT cases oir foreclosure, when an attorney or counsel fee is claimed by the plaintiff, no other or greater amount shall be allowed or decreed than the sum which shall appear by the evidence to be actually charged by and to be paid to the attorney for the plaintiff; and if it shall appear that
The California cases, cited by counsel for the appellant, to the effect that an attorney has no lien for his fees, are not in point, under the statute of this state.
In view of the principles above stated, it now becomes important to ascertain what rights the respondent has under the decree in this case. So far as material here, the decree provides that J. H. Bacon, the special commissioner therein, appointed to sell the property, shall “out of the proceeds of said sale retáin his fees, disbursements, and commissions on said sale, and pay to the attorney for the cross complainant, John W. Judd, out of said proceeds, the sum of $1,000 by .way of attorney’s fees in this cause, together with the costs of this suit, taxed at the sum of -dollars, and the said Bacon shall also pay to the cross complaint, or its attorney, the further sum of $23,-793, the amount so found due as aforesaid, together with interest thereon at the rate of eight (8) per cent, per an-num from the date of this decree, or so much thereof as said proceeds of sale shall pay of the same after first making the payments hereinbefore mentioned.” It will be observed that the respondent is here decreed to be paid by the commissioner out of the proceeds of the sale the sum of $1,000, as attorney for the cross complainant. That sum is thus, by an express decree, fixed as the amount of his compensation for his services in recovering the judg