Singer Manufacturing Co. v. Chalmers
2 Utah 542
Utah
1880
Check Treatment
BoeemaN, J.,

delivered the opinion of the court:

This is an action of ejectment, the verdict and judgment being for plaintiff, the defendants have appealed.

The appellants in their answer denied the title of the respondent, who elaimed through a sale under a deed of trust executed by one C. E. Pratt. The appellants objected to the introduction in evidence of an endorsement on the note for which the trust deed was given. The note was described in the deed; but there was no reference therein ‍​​​​​​‌​​‌​‌​‌​‌‌​​​‌​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​​​‌​‌​​‍tо the endorsement except the reference in the note itself. The note on its face said there should be “ interest at the rate of two per cent, per month, after breach of the condition endorsed on the baсk of this note.” This was a sufficient recognition of the existence of the endorsement to put third parties on their inquiry.

The introduction of the endorsement being рroper, the admission of notes embraced within the condition was proper, *546although they were not described in the deed. If the condition endorsed оn the note set out in the deed was valid (and there is no question raised here as to its validity), it was certainly the ‍​​​​​​‌​​‌​‌​‌​‌‌​​​‌​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​​​‌​‌​​‍privilege of the respondent to show that such сondition had been broken, and such was the purpose for which the notes (оther than the one described in the deed of trust) were introduced.

The respondent in seeking to maintain his case by proving the non-payment of the note described in the deed of trust, introduced the written statement or acknowledgment of C. E. Pratt, the maker of the note and deed of trust, that the note had not been рaid. There was no privity between Pratt and the appellants, to entitle his acknowledgments or statements to be admitted in evidence. He was not a рarty to the action, and his statement could be no more than hearsay, sо far as the parties to this action are concerned. The appellants had nothing to do with the deed of trust, or the note therein described, and nо acknowledgments or statements of parties with which they were not connected, could affect their rights.

The appellants further claim that Pratt, after giving the deed of trust, executed a mortgage, which is now owned by one of the аppellants, and ‍​​​​​​‌​​‌​‌​‌​‌‌​​​‌​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​​​‌​‌​​‍that said statement was objectionable also for bеing made after the execution of the mortgage. The mortgagee was a purchaser for value. New Orleans C. & B. Co. v. Montgomery, 95 U. S. (5 Otto,) p. 16; and no acknowledgments made by Pratt after the execution of the mortgage could be admitted to affect the rights оf the mortgagee or those claiming under him. Dodge v. Freedman's S. & T. Co., 93 U. S. (3 Otto,) p. 379. But whether such a mortgage was made or not, does not appear from the evidence brought up, yеt it is not necessary, in order to ‍​​​​​​‌​​‌​‌​‌​‌‌​​​‌​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​​​‌​‌​​‍render the acknowledgment or statement оf Pratt objectionable, that such mortgage should have been shown. The statеment was objectionable without it.

The deed of trust authorized the sale to be made by the *547United States Marshal. This was not done. One of bis dеputies made the sale as auctioneer. It is not claimed that be acted as deputy, but simply that a person who was a deputy acted as the auctioneer. Nоr do we think that the marshal could have acted by deputy, unless the deed of trust had shown express authority to that effect, which it did not do. The fact that no injury or fraud in the sale has been shown, does not affect the question. Nor is it affected by the fact, that the purchaser was an innocent party. The sale was mаde by one not ‍​​​​​​‌​​‌​‌​‌​‌‌​​​‌​‌‌​‌​​‌‌​​‌​‌‌‌‌​‌​​​‌​‌​​‍authorized to make it, and cannot be upheld. It is simply void, and no one gains any rights under it. A purchaser must know that the sale is made by the propеr person. The deed of trust Shows who could make the sale. A trustee can no doubt employ an auctioneer to act for him in crying off the property; but the trustee must be present and superintend the sale. The trustee in the present instance says that he does not think he was present at the sale.

The judgment of the court below is reversed, with costs.

Huntbk, O. J., and Emekson, J., concur.