Wasatch Mining Co. v. Crescent Mining Co.

7 Utah 8 | Utah | 1890

BlackbüRH, J.

This suit is brought to foreclose a mortgage made by appellant to respondent. Respondent and Jennings were in litigation about certain mining claims, in reference to the ownership thereof, and appellant wished to buy the property in controversy of the respondent; and a bargain was made with it for the sale-of the property for a large sum of money, and appellant gave a mortgage to secure the payment of the money and went into possession. It was stipulated in the. mortgage deed that the money was to be paid within one year from the date thereof, but, if the litigation for the ownership of the property was not ended within that time the-mortgagor was to pay the money into court on a recognized order thereof, where the litigation was pending, to be paid at the end of said litigation to the respondent,, if it should be successful, but if not it was to be returned to appellant. At the end of the year the litigation was-still undetermined, and no order was made by the court, for the payment of the money into court, nor any steps-taken by either the respondent or appellant to have such order made; nor did the appellant offer to- pay the money,, or notify the respondent that it was ready and willing to-pay said money into court if such order was made. After the expiration of the year the respondent brought this-suit to foreclose the mortgage. The' appellant answered', the complaint, and set up as a defense that it was not in default, because the respondent had not procured the-order to be made to pay into court the money, and. further, that the respondent had fraudulently left out of the deed made to appellant, of the property sold, a part,, and the most valuable part, of the same, so that the • appellant did not get in the deed the property bargained for, and therefore it ought not to pay the mortgage-until the full property was conveyed. Also, the record shows, that appellant commenced a suit against respondent to compel it to reform said deed, and convey to the-appellant the territory left out of it.

' The court below decreed in favor of appellant, and that the title to the property left out of the deed be .absolutely vested in appellant. The respondent appealed to this court, and the decree was affirmed. 5 Utah 624, 19 Pac. Rep. 198.' Thereupon the respondent appealed to the supreme court of the United States, which appeal is still pending, but gave no supersedeas bond. In the • case now before the court, the district court decreed the foreclosure of the mortgage for the amount thereof, and the interest accruing thereon since the same became due, and an attorney’s fee of $1,000, and that the mortgaged property be sold as in such decree provided, and that out ■ of the proceeds thereon the mortgage debt, with the interest, be paid into court in the case still pending between the respondent and Jennings, and the attorney’s fee and cost be paid to the respondents; and from this decree this appeal is taken.

The appellant contends this decree is wrong, and ought 'to be reversed, because (1) it was not in default in not paying the money into court as the mortgage stipulated; for it was not a party to the suit, and could not volunteer, and procure an order to be made. But it could .have gone, as was its duty, to the respondent, and offered to pay the money into court, and the respondent could, • and no doubt would, have procured the order; and, if it ■did not, then the failure of appellant to pay the money into court would not have put it in default. We do not think the decree should be reversed on this account.

(2) The appellant contends that the respondent, either by mistake or fraud, failed to convey in the deed made for the mining claims purchased, for the purchase money for which the mortgage was given, the most valuable part of the ground bargained for, and therefore the consideration for the mortgage has failed in part, and that the respondent is not entitled to' have its mortgage foreclosed until the title to that ground is conveyed to the appellant and that this is fully proved by the decree in the case of the appellant against the respondent. This decree is the only evidence in the record of the fraud or mistake claimed in the deed, and is competent evidence only on the theory that it is res adjudicaba between the parties. The decree vests this ground in the appellant as against the respondent; and, if it is res adjudicata as against the respondent, although appealed from, it is also against the appellant, and it has gotten all it contends for, and cannot complain. Again, if this decree is confirmed, it has the property; and, if the appellant finally fails, in that case it is an adjudication that it got in the deed all it bargained for, and it must pay off the mortgage. It also went into the possession of the ground left out of the deed, and has profitably worked it ever since. So we cannot see that it has ground of Complaint on this account.

(3) Another contention of the appellant is that the decree allowed interest on the mortgage, because — First, the mortgage does not provide for interest, and the money, if it had been deposited in court as provided for in the mortgage, would not have drawn interest, and the contingency had not yet happened that entitled the respondent to have the money; and, second, the appellant was not in default in not depositing the money, because the respondent did not procure the order required for the deposit of the money. This third reason we have already, in this opinion, considered. At common law, no interest was allowed on debts overdue, unless there was an express or implied contract to pay interest. Madison Co. v. Bartlett, 1 Scam. 70. It was the duty of the appellant to pay the money into court according to the provisions of the mortgage, and it was not its concern whether the money would draw interest or not; and, again, it had the use of the money wrongfully and ought not to object to paying interest on it. This mortgage does not provide for the payment of interest, but it fixes the time-when the money is to be paid. This rule of the common, law does not obtain in America, and interest is allowed-on debts overdue' even if there is no statute providing for interest. Woods v. Robbins, 11 Mass. 504. And the question has been settled in this territory in favor of the allowance of interest on debts overdue. Godbe v. Young, 1 Utah, 55; 15 Wall. 562.

We think, therefore, interest was properly allowed oír the indebtedness from the time it was the duty of the appellant to deposit the money' in court. But we think the decree, under the circumstances of this case, should have allowed the appellant á reasonable time in which to pay the money, say 30 days, before the property was-ordered to be advertised for sale. Also, the decree ought to have provided that the money be paid into court in, this case, instead of the case of the respondent against Jennings, until an order should be obtained in that case for the deposit of the money. The- decree of the court-below should be modified in accordance with these views,, and the respondent should pay the costs of this court.

HendeRSON, J., concurred. Zane, C. J., took no part in this case, having been of counsel.