Crescent Mining Co. v. Wasatch Mining Co.
Crescent Mining Co. v. Wasatch Mining Co.
Opinion
after stating the case, delivered the opinion of the court.
Our examination of this record fails to disclose any error in the decree appealed from.
The' proceedings in the District Court of the Territory of Utah, to enforce the mortgage given by the Crescent *322 Mining Company to the "Wasatch'Mining Company, were certainly in pursuance of the terms of that instrument. The defence raised by demurrer, that the Crescent Company could not pay the purchase money into the court until an order of the court permitting such payment had been procured, and that the Crescent Company, not being a party of record, could not procure such order, was not sound, because that reason, namely, that the Crescent Company was not a party of record, equally prevented the Wasatch Company from procuring such order. It is true that the Wasatch Company was a party of record; but, of course, the court could not, on the application of that company, have granted an order on the Crescent Company, not a party and not represented in court, to pay money into court.
It is obvious that the contract, in that particular, required the. cooperation of the parties. Hence, when, by the terms of the mortgage, the time had arrived for the payment of the money, it was the duty of the Crescent Company to have signified its readiness to pay and to unite with the Wasatch Company in procuring the necessary order of the court. Not having so done, a right to enforce the mortgage at once arose.
Nor do we think that the defence set up in the answer, that the deed executed by the Wasatch Company and deposited, as provided for in the agreement, in the Deseret National Bank, did not contain all the parcels of land to which the Crescent Company was entitled, was sufficient, because the answer itself disclosed that the Crescent Company had availed itself of its remedy by direct proceedings against the Wasatch Company to reform the deed. Such proceedings would necessarily result in a decision that the deed in question was correct, or else in a reformation of it.
An election to pursue a remedy by an independent action would not seem to have left the Orescent Company free to resist an enforcement of its express contract in the mortgage by resorting to the same matter. However this inay be, it is satisfactory to know that this view of the subject worked jro injury to the Crescent Company when we learn from our *323 own records that the result of that independent proceeding-was a decree in favor of the company compelling a -reformation of the deed, so as to include all of the lands purchased. Wasatch Mining Co. v. Crescent Mining Co., 148 U. S. 293.
Further objection is urged to the decree of the court below in that it called for the payment of interest on the principal sum from the time fixed for payment until the same shall have been paid into court. It is said that the mortgage does not itself provide for interest, and that if the money had been paid into court it would have there remained without interest. Hut this is not necessarily so. The court would, doubtless, if so requested by the parties in interest, have ordered so large a sum invested. At all events, it is no hardship that the Crescent Company, which had both the use of the money and the receipt of the issues and profits of the mines, should be charged with interest for the period between the maturity of the mortgage and the payment into court.
Another complaint urged to the decree below is because it' directs that the money should be paid into the District Court of the Territory in the case between the two mining companies instead of in the case between the Wasatch Company aid Jennings. But the decree discloses that this disposition of the money is only temporary, to await the obtaining of an order in the latter case. Such an order, as the case now stands, is a matter of course, and doubtless can be obtained forthwith, so as to dispense with the intermediate payment.
The decree of the court below is
Affirmed.
Reference
- Full Case Name
- Crescent Mining Company v. Wasatch Mining Company
- Cited By
- 20 cases
- Status
- Published
- Syllabus
- A. commenced an action against B. in Utah, to recover possession of a tract of mining land. C., desiring to purchase the disputed tract, agreed with B. to purchase it, a part of the purchase money to be paid at the signing of the agreement (which was done), and the balance to be paid on delivery of tile deed, after determination of the action in favor of B., C. to go into possession at once, but not to remove any ores until delivery of the deed. A., on his part, then sold the disputed premises to C. By a subsequent agreement C. agreed to pay the consideration therefor to A. in a year, if the suit should be determined in favor of A. in that time, and if not then determined, to pay the purchase money into court in the action of A. against B. By the same agreement the property was mortgaged by C. to A. to secure its performance. The money not having been paid into court under the last agreement, A. brought a suit to foreclose the mortgage in which it was alleged that the action by A. against ,-B. was still pending and undetermined, and that C. had not paid the amount into court, and by which was prayed a decree for such payment and for foreclosure and sale. The defendant demurred, and, the demurrer being overruled, answered, setting up an alleged fraudulent conspiracy, whereby the most valuable parts'of the lands agreed to be conveyed by A. to C. had been omitted from the deeds. The answer, also set up that C. had commenced a suit against A. to compel a reformation of the deed, in which a decree for reformation had been made below, and that the suit was pending in this court on appeal. Issue being taken on this answer, it was decreed that A. was entitled to have the amount of the mortgage debt, with interest, paid into court in the suit between A. and B., and for a decree of foreclosure. This decree, on appeal to the Supreme Court of the Territory, was modified by allowing thirty days for ■the payment of the money before advertising the property for sale, and by providing that the money should be paid into court in the foreclosure suit, instead of in the .action of A. against B., until an order could be obtained in that case for the deposit of the money. Held, that in all this there was no error.