11 Utah 214 | Utah | 1895
The complaint in this case, which was filed March 7,. 1892, declares on a promissory note for $4,000, dated February 27, 1890, due one year after date, with 8 per cent.
The case was tried April 17, 1894, before a jury. The ■plaintiff offered in evidence a certificate of the Salt Lake Abstract, Title Guarantee & Trust Company. The defendant admitted its exexcution by said company, and that $200 was a reasonable attorney's fee. Plaintiff then rested, • and defendant moved for a nonsuit, which motion was ■denied. Testimony was then offered by the defendant, .and in rebuttal the plaintiff testified at length. While there is some dispute in the testimony offered by the .respective parties, it tends to establish the following facts:
That at the time said note was executed plaintiff was the owner of the premises mentioned, which were situate in Salt Lake City, and conveyed them to the defendant by • deed of warranty, taking in part payment the note above referred to, together with a mortgage from the defendant •upon the same premises to secure its payment. This property had formerly been owned by one John Bergen, -and, while he so owned it, a judgment had been rendered .against him, on the 26th day of April, 1886, in the Third District Court of Utah, based on four counts in one indictment charging him with the crime of unlawful cohabitation. The judgment was for $300 on each count and costs,
On the 16th of April, plaintiff, Bergen, and Blazer, who--represented defendant, met at the Commercial National Bank, and made an arrangement by which $2,561 was paid to the plaintiff, leaving $1,800 of the money still remaining in the bank. The parties had been advised that, under the decision of the supreme court in the Snow Case, 120* U. S. 274, 7 Sup. Ct. 556, only one of the four separate judgments against Bergen was valid. Eight hundred and seventy-one dollars of the amount remaining in the bank was required to meet the Bergen mortgage, and the balance would be due the plaintiff. It was considered by the plaintiff and Bergen that the amount left in the bank was-sufficient security, and they canceled their mortgages..
Appellant claims that the court erred in overruling his motion for nonsuit. After submitting the motion for non-•suit, defendant introduced evidence in support of his defense, and plaintiff followed with rebutting evidence. The motion was waived, and at the conclusion of the case the proof was of such character as to not only warrant, but demand, its submission to the jury. If the court erred in overruling defendant's motion, the error was waived.
It is contended: First, that the evidence is insufficient to justify the verdict, for the reason that the transaction ■of April 16, 1891, amounted to a discharge and cancellation of the note upon which this action is founded; second, 'that the verdict is contrary to law, because the plaintiff, ■upon the county record, on that day satisfied and dis•charged the mortgage, and declared the indebtedness ■thereby secured fully paid. These two assignments, being •so closely connected, will be considered together. It is .argued by appellant's counsel that in consideration of receiving $2,5G1 on the 16th of April, before it was due, -a new agreement was made by plaintiff, aud that he ■canceled and surrendered the note, and that whatever relief he is entitled to must grow out of such agreement. It was also argued that, even if plaintiff did prescribe that •certain conditions must exist before the notes should be •surrendered, his instructions constituted the bank his agent, and, if the note were delivered wrongfully, the liability must rest upon the agent. We are unable to
Plaintiff’s testimony was to the effect that an arrangement had been made between Bergen, the bank, and Blazer, as defendant’s agents, and himself, by which the mortgages were to be canceled, and the note left with the bank until the 27th of April, at which time, if the government had not taken execution against Bergen, the note-was to be delivered to defendant, and the $1,800 paid to-Bergen and plaintiff; and both plaintiff and Blazer testified, that it was expressly agreed that, if the government sought, to collect the Bergen judgment, plaintiff’s draft should be¡ paid, and Bergen’s check held until the matter was settled.. No new contractual relation was entered into. The relations of the parties were not changed. The defendant voluntarily paid a part of the note before maturity, and withheld such an amount as was deemed fully adequate-for his protection against any defects which might be found, to exist in the title. It is sufficient answer to appellant’s-contention that the bank became the plaintiff’s agent, and.
Appellant complains because the court refused to permit him to introduce evidence of the judgment against Bergen. Objection to this testimony was made for the reason that the note provided that' the abstract company was to approve the title, and that, having done so, it was immaterial. Respondent contends that the effect of the certificate above set out was conclusive between the parties on the question of title; that the company having approved the title, and pronounced it good and marketable, the condition upon which payment had been predicated had been fulfilled, and plaintiff was entitled to the full amount of the note. Appellant insists that unless the title was good and free from all incumbrances, and marketable, in fact, the certificate would prove unavailing; and that he had a right, notwithstanding the certificate, to show, if he could, any defects in the title. In New York the point involved in this question came before the court, where the plaintiff brought suit to collect a final payment for work done under a building contract which provided that payments were to be made in installments as the work progressed, upon certificates of the architects, and the last installment was to be paid “when all work is completely finished and ■certified to that effect by the architects.” On the trial before the referee, defendant offered to show that the plaintiff had not erected and completed the building according to contract, but the referee held that the cer
In U. S. v. Robeson, 9 Pet. 319, the defendant undertook to recover on a counterclaim for certain services without producing the certificate of the officer named in the contract, by proving by other evidence that he had in fact performed the contract; but the court held this “ other •evidence ” of performance incompetent, and that the only competent evidence of performance would be the certificate •of the party agreed upon. Mr. Justice McLean, speaking for the court, says: “ Where the parties in their contract fix a certain mode by which the amount to be paid shall ■be ascertained, as in the present case, the party that seeks •an enforcement of the agreement must show that he has •done everything on his part which can be done to carry it into effect. He cannot compel the payment of the ■amount claimed, unless he shall procure the kind of evidence required by the contract, or show that by time or accident he is unable to do so; and, as this was not done ■by the defendant in the district court, no evidence to prove service, other than the certificates, should have been ■admitted by the court below.” The parties to this suit, .at the outset, deliberately agreed to refer the question of title to the abstract company. They selected it as an arbiter between them, and its determination of the ques
But, even if it be considered that the certificate was not conclusive upon the question of title, we are still of the opinion that it was not error in refusing to admit the evidence of the judgments against Bergen; and that brings-us to the question, was the judgment of the United States against Bergen a lien on the land in question when this action was brought? Defendant’s position is that this-judgment, rendered in 1886, was such an incumbrance as to amount to a cloud upon, if not a serious defect in, the plaintiff’s title. This question was argued very ably by counsel, and, because of its importance, we deem it proper to pass upon it, while it is fully before us, although our view of the proposition last discussed is decisive of this -case. As a foundation for appellant’s claim respecting-
During the early settlement of this country the writ of elegit was adopted in a few of the states. Prior to the Kevolution no general statute existed in this country or England extending its operation, but by judicial construction a broader scope was given it than the statute expressly provided. The practice, was not harmonious in the-states, some courts construing the lien to attach after the sheriff delivered possession of the land to the creditor, while still others construed the lien to attach upon levy by the sheriff, or upon issue and delivery of the execution to the sheriff. Massingill v. Downs, 7 How. 765. In Virginia, at an early date, the statute of Westminster II. was substantially adopted, the courts holding “ that a lien was acquired by judgment which extended to all of defendants lands within the state, and which was superior to the claims of subsequent purchasers, though for a. valuable consideration and without notice. The lien thus acquired was a legal lien, and remained so long as the capacity to sue out an elegit continued, whether the writ was sued out or not.” Hutcheson v. Qrubhs, supra. Some of the states adopted 5 Geo. II, c. 7, and by long usage so extended and employed it that it became a lien on all the lands of the judgment debtor from the time that judgment was rendered. Tayloe v. Thompson’s Lessee, 5 Pet. 367. But the writ of elegit is unknown to American jurisprudence, except in a few states, and in these was obsolete many years before the organization of this territory. The act of George II was not an extension of the writ of elegit, but an abolition of it. Most of the states, both before and after its enactment, had passed express statutes providing' that lands should be subject to
Speaking of this legislation, in the case of Bank v. Halstead, 10 Wheat. 60, it is said: “The general policy of .all laws on this subject is very apparent. It was intended to approach and conform to state process and proceedings .as a general rule, but under such guards and checks as might be necessary to insure the due exercise of the powers •of the courts of the United States. They have authority, therefore, from time to time, to alter the process in such manner as they may deem expedient, and likewise to make additions thereto, which necessarily implies the power to enlarge the effect of the operation of the process.” But this discretionary power in the courts of the United States was restricted by the act of May 19, 1826, c. 68, which provided “that thereafter writs of execution and other final process issued on judgments rendered in any of the courts of the United States and_ proceedings thereon should be the same, except their style, in each state respectively .as were then used in the courts of such state, provided, .however, that it should be in the power of the courts if
Pursuant to these enactments of Congress, it has been unanimously held that whatever lien resulted from a judgment in a court of the United States came from the statute of the state in which the judgment was rendered. As is said in Baker v. Morton, 12 Wall. 158: “Judgments were not liens at common law, but Congress, in adopting the modes of process prevailing in the states at the time the judicial system of the United States was organized, made judgments recovered in the federal courts liens in all cases where they were so by the laws of the states; and a later act of Congress has provided that judgments shall cease to have that operation in the same
This legislation upon the part of Congress conclusively shows that Congress has purposed to place the federal courts, in respect to the question of judgment liens, upon the same footing as the state courts. While the power •of Congress must be conceded to provide for judgment liens in all the federal courts, the wise view has been adopted to conform as far as possible the practice and procedure of the federal courts to the practice and procedure of the state courts, so that the judgment creditor in the federal court in any state obtains the same right to subject the property of the debtor to the satisfaction of his debt as one whose judgment is obtained in a state court. The question then arises, does a different rule apply in territories from that which obtains in the states? The supreme court of the United States has held “ That the practice and proceedings and forms and modes of proceeding of the territorial courts, as well as their respective jurisdictions, subject to a few express or implied conditions in the organic act itself, were intended to be left to the legislative action of the territorial assembly, .and the regulations which might be adopted by the courts
Appellant’s counsel insist that the maxim, the sovereign is not bound by the act unless named by special and particular words, is to be applied to this case, and it is argued that the territorial statute above quoted cannot be invoked against the government. The principle embodied in this statement has no application to the case at bar. It is true this statute is territorial, and was enacted, no-doubt, for the benefit of domestic judgment creditors; and it must be admitted that the government was not con
The case of Fink v. O’Neil, supra, fairly meets the numerous objections urged by appellant to the application •of the local law to the government. The question there was whether the provision in the practice act of AVisconsin, exempting certain property from execution, applied to .judgments in favor of the United States. The court say: '“This conclusion, that the provision of the practice act •applies to judgments in favor of the United States, cannot be avoided by the consideration which is above urged upon us, that the process acts do not limit the sovereign rights •of the United States, upon the principle that the sovereign is not bound by such law, unless it is expressly named. These laws are the expression of the sovereign will on the subject, and are conclusive upon judicial and •executive officers to whom they are addressed, and as they forbid the issuance of an execution in any case, except ■subject to the limitations which they mention, and as "there is no authority to issue an execution in any case whatever, except as conferred by them, the sovereign right invoked is left without a means of vindication. The United States cannot enforce the collection of a debt from an unwilling debtor, except by judicial process. They must bring suit and obtain judgment. To reap the fruits •of that judgment, they must have execution issue. The •courts have no inherent authority to take any one of these ■steps, except as it may have been conferred by the legis.lative department, for they can exercise no jurisdiction •except as law confers and limits it.” See, also U. S. v. Railroad Co., 105 U. S. 263. Counsel also contended, as a “stronger reason than any heretofore suggested,” that the United States has a judgment lien because judgment was obtained in the exercise of sovereign power, and is a-
But, admitting counsel’s position to be true, this prerogative of the sovereign is not sufficiently comprehensive to-affect the case at bar. Fine's in criminal cases never were protected by liens on lands at common law. They were-neither included in the term “debt,” used in Magna Charta, nor in the term “ obligation made to the king,”' used in the statute of Henry VIII, above mentioned. 2 Bl. Comm. 464, 465, 379. Section 1041 of the Bevised Statutes of the United States provides that fines or penalties in criminal cases may be enforced in a like manner as judgments in civil cases. It is clear that in criminal cases judgments and fines in favor of the United States-are to be enforced in the manner provided by the local or domestic statute; and it is provided in section 3414 of the Compiled Laws of Utah that a judgment that the-defendant pay a fine constitutes a lien in a like manner as-judgment for money rendered in a civil action. The conclusion seems irresistible, that, unless section 3414 of the-Compiled Laws above mentioned is applicable to the-United States, it has no lien whatever in this territory by
It appears that counsel in this cause did not call the Court’s attention to an act approved March 8,1894, Sess. Laws 1894, Gh. 39, Sec. 2, which provides that the offering of evidence after an overruling of a motion for anon-suit, •will not be deemed a waiver. This cause was tried April 17,1894. — Rep.]