Schroeder v. Young

This was a complaint in the nature of a bill in equity, originally filed in the Third judicial district court of the territory of Utah, by John M. Young against Frank B. Stephens and wife and Albert T. Schroeder and wife, as defendants, to set aside and cancel certain execution sales of real property in Salt Lake City as fraudulent and void, and for permission to redeem from such sales, notwithstanding the expiration of the statutory time for redemption, and for a decree compelling the defendants to convey to the plaintiff the property mentioned, upon just and equitable terms.

The material facts in the case were that on March 6, 1891, Clark, Eldredge & Co., a corporation, obtained judgment by default in said court against the appellee John M. Young, Henry Goddard, and George Goddard in the sum of $1,673.36, with $30.50 costs. Frank B. Stephens and Albert T. Schroeder, partners and the principal defendants, were the attorneys for Clark, Eldredge & Co. in such action. The plaintiff, John M. Young, was the owner of the undivided one-half of two parcels of land in Salt Lake City, and plaintiff's sister, Lydia Y. Merrill, was the owner of the other undivided one-half of the said parcels. Their title was derived from the will of their father, and, as to the greater part of such property, was subject to a right in Sarah Milton Young and Ann Olive Young to receive each one-fourth of the money arising from said property during their respective lives.

On April 29, 1881, an execution was issued in said action of Clark, Eldredge & Co. against John M. Young, directing the marshal of the United States, if sufficient personal property could not be found to satisfy the judgment, to levy upon the real estate belonging to Young and his codefendants in such action; and on May 7, 1891, the marshal gave notice that he attached and levied on all the right, title, claim, and interest of the said John M. Young and his codefendants in and to that parcel of land described as beginning 101 feet north and 39 1/2 feet east of the southwest corner of lot 2, block 70, plat A, Salt Lake City survey, and running thence east 15 1/2 feet, thence north 28 feet, thence west 15 1/2 feet, thence south 28 feet, to the place of beginning; and also on that part of the same lot described as beginning 32 1/2 feet west from the southeast corner of the said lot, running thence west 38 feet, thence north 98 1/3 feet, thence east 38 feet, thence south 98 1/3 feet, to the place of beginning; and also on a part of lot 12, block 8, five acre plat A, Big Field survey.

Afterwards, on July 25, 1891, the marshal certified that he had sold the property described in the notice to John Clark, and, deducting his commissions and expenses of sale, paid the balance realized upon said sale, viz. $962.36, to the attorneys of Clark, Eldredge & Co., and further returned that there was still due and unpaid on said judgment the sum of $886.90. The John Clark mentioned in the return was a director and the principal stockholder of Clark, Eldredge & Co. Afterwards, on July 28th, an alias execution issued from the said court in such action for the full sum of $1,673.36, and $30.50 costs, by virtue of which the marshal levied upon a certain other parcel of the same lot described as beginning 64 1/2 feet west of the northeast corner of said lot 2, running thence west 45 1/2 feet, thence south 20 rods, thence east 78 1/2 feet, thence north 90 3/4 feet, thence east 31 1/4 feet, thence north 41 1/4 feet, thence west 16 1/2 feet, thence north 148 1/2 feet, thence west 48 feet, thence north 49 1/2 feet, to the place of beginning; and on August 25th the marshal returned that he had sold these premises to the defendants Stephens & Schroeder for the sum of $828.70, and further certified that the judgment obtained by said corporation was still unsatisfied to the extent of $100.

On September 30th, said marshal made a further return to the last-mentioned writ, in which he certified that he sold all of lot 12, block 8, five acre plat A, Big Field survey, situate in Salt Lake county, and also a certain parcel of land desecribed as beginning 39 feet east and 81 feet north of the southwest corner of said lot 2, running thence north 209 feet, thence east 16 1/2 feet, thence south 209 feet, thence west 16 1/2 feet, to the place of beginning, to Stephens & Schroeder, for the sum of $136, and, deducting the costs and expenses of said last levy, amounting to $30, paid the balance, $106, to the attorneys of Clark, Eldredge & Co., and returned said writ fully satisfied.

The court found that all that part of lot 2 as described in this statement, a plat of which appeared in the record, constituted a single parcel of land, and should have been regarded and treated as such, and not as being divided into separate lots or parcels, and that the first parcel sold, being 15 1/2 by 28 feet, had no ingress or egress, and that the same as sold would necessarily be sacrificed on such sale on account of its location, but that, at the time of the sale of this parcel, neither Stephens nor Schroeder had actual knowledge of any other realty owned by plaintiff.

The other material facts are stated in the opinion of the court.

Before the case was called for argument, the suit was settled so far as the defendants Stephens and his wife were concerned, leaving Schroeder and his wife sole defendants. The case coming on to be heard upon pleadings and proofs, the district court made a decree permitting the plaintiff, Young, to redeem the property upon paying to the defendants the sum of $723.25, less certain costs, but subject to one-half of a mortgage executed by the defendants, who were ordered to execute and deliver to plaintiff a deed of the property. From this decree an appeal was taken to the supreme court of the territory, which affirmed the decree of the district court (37 Pac. 252), whereupon appellants prayed and were allowed an appeal to this court.

A. T. Schroeder, for appellants.

Parley L. Williams, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.