202 P. 834 | Utah | 1921
Plaintiff commenced mandamus proceedings in the District Court of Salt Lake county to compel the defendant John S. Corless, as sheriff of said county, to execute and deliver to him a deed for certain mining claims and properties sold by the sheriff under an order of sale issued out of said court in the case of H. B. Cole et al., Appellants, v. Canton Mining Company, a corporation, et al., Respondents, 59 Utah, 140, 202 Pac. 830, a companion case just decided on appeal to this court. In the case just mentioned, we affirmed the judgment of the district court in which it was held that the mining claims and properties which were the subject of the controversy between the parties had been lawfully sold in separate parcels under a foreclosure sale to H. B. Cole, a defendant in the present case, and stated our reasons therefor.
The- plaintiff here occupies the' position of a judgment creditor and as such is entitled to redeem the property so sold after full compliance witji our statutes,
The district court has found that the plaintiff, as a redemp-tioner, has met every statutory requirement and by its judgment commanded the defendant John S. Corless, as sheriff of Salt Lake county, to forthwith execute and deliver to the plaintiff a deed in strict accordance with the copy which is attached to his affidavit therein and marked “Exhibit A.”
They contend that this is a case in which mandamus will not lie because the legal duty sought to be enforced is not free and clear from doubt. There is no merit in this contention. Under the facts stated in the plaintiff’s petition for the writ of mandamus, the legal duty of the defendant sheriff to respond w'as clear. The only doubt raised as to the legal duty sought to be enforced was by reason of the matters contained in the defendants’ answer to the plaintiff’s
There is one question, however, raised by the defendants on this appeal, which was not expressly considered and passed upon by this court in the opinion to which the reader is above referred. They contend that the plaintiff is seeking to l’edeem personal property sold under foreclosure or execution sale as well as real property, and that the deed sub
“ * * * All of the machinery, tools, implements and appliances, and all materials of every kind now on or near said tunnel site that have been provided for the purpose of being used in work thereon, or on the mining claims hereby conveyed, including an air compressor, an electric dynamo, an electric motor, an electric transformer, electric wiring, drills, air pipes, water pipes, lumber, etc.
“Also the track, rails and mine cars that have been used or provided for use in said tunnel.
“Also the buildings now standing near the mouth of said tunnel, including what is known as the compressor house, the boarding house and the tunnel shed.”
We think it necessarily follows that, in the absence of some showing to the contrary in the record before us, the plaintiff had the right to regard the property as
It is therefore ordered that the judgment of the district court be affirmed, with costs.