66 P. 602 | Utah | 1901
The respondent, Joanna W. Hicks, who resided in the State of Ohio with her daughter, the co-respondent, Eloy R. Hicks, through her agent and attorney in
1. Tbe court found, among other things, that tbe plaintiffs bad by their laches and delay waived their right to have said sale vacated and set aside, and also waived any lien in their favor on the property described in the complaint. This finding was excepted to. It is clear that said finding was not based upon any defense set up in the answer. If the respondent wished to aváil herself of this defense, she should- have pleaded it in her answer, so as to inform the appellants of the nature of her defense and give them an opportunity to meet it. The finding made was merely a legal conclusion,
2. It is true, as held in McClure v. Little, 15 Utah 379, 49 Pac. 298, 62 Am. St. Rep. 938, that attorney’s fees, when allowed, go to the mortgagee and become a part of the judgment; but this is not true in the sense that the mortgagee or purchaser of a decree of foreclosure, allowing attorney’s fees, may hold such fees for his own and cheat the attorney to whom they should be paid. While the fees form part of
The findings and decree of the district court are set aside and annulled, with directions to enter findings and decree in favor of the appellants, in accordance with this opinion, and directing that they have a lien amounting to $125 and interest thereon, upon the said real estate, prior to any lien or claim of the respondents or either of them, and that execution issue for the sale of said property to satisfy such lien, with costs. Appellants are entitled to costs.