McCormick v. Greenhow

BoremaN, J., delivered the opinion of the court: A judgment was recovered in the name of the Omaha Smelting and Eefining Company against the Flagstaff Silver Mining Company of Utah, limited. Andrew G-. Hunter con [367] tracted for the purchase of the judgment, and paid a part thereof. At his request execution was issued and levied upon the Flagstaff mine, of which he was in possession as lessee of the said Flagstaff Company. The property was sold under the execution, and appellant, who owned'a half interest in the debt upon which such judgment had been obtained, became the purchaser, but said Hunter paid all expenses of sale, and appellant paid no money down at the sale, yet received the certificate of sale, by reason of some understanding dispensing with such payment, we presume. On the day of sale said Hunter and appellant entered into a contract for the purchase and assignment of the certificate of sale. Hunter paid some of the installments under this contract, and then assigned all of his rights and interests under the contract to Frederic W. Billing, who became the lessee of the Flagstaff Company and in possession of its property. The appellant was madé aware of this assignment, and of the contract between Hunter and Billing. That contract required said Billing to pay the remaining installments on said contract, and by consent of said Flagstaff Company said payments by Hunter on the contract for the purchase of the judgment, and the payments of both Hunter and Billing on the contract for the purchase of the certificate of sale, were to be charged to the Flagstaff Company, and the mine to be held by Billing for said Flagstaff Company and to ■ be disencumbered of all liens. Billing paid all of the remaining installments except the last, which was some $4,900, that being all that was due and unpaid out of the original debt of nearly $44,000. The six months for redemption having expired, and the said balance of $4,900 being still unpaid, the appellant obtained his deed for the property from the United States marshal, William Nelson, who had made the sale. A few days prior to the execution of this deed, however, the respondent, William G. Greenhow, recovered judgment against the said Flagstaff Company for $8,000? had execution issued [368] thereon to William Nelson, United States Marshal, and the marshal gave notice of sale. The appellant applied to the court' below to enjoin the sale, and the court having denied the injunction, the appellant brings the cause to this court on an appeal from the order refusing the injunction. The appellant claims the legal title, and urges that that deprives the Flagstaif Company of any interest that can be sold under execution. The respondents claim that the Flagstaff Company has an equitable interest, the right to redeem, that can be thus sold. The Flagstaff Company is in possession of the property by its lessee Billing, and the appellant never has been in possession. The appellant was made acquainted with the agreement between Hunter and Billing, whereby all of the payments that had been or might be made by these parties were to enure to the benefit of the Flagstaff Company, and that all liens were to be removed from the property. He knew that the possession of the Flagstaff mine had not changed from the Flagstaff Company to him. Knowing these things,- he received from Billing other installments on the contract for purchase of the certificate of sale; really, in effect, installments paid by the Flagstaff Company. Billing was evidently acting for the company, and no other rational construction can, as it appears to us, be placed upon these transactions. It was really an arrangement for the redemption of the property. All of the transactions on the part of the appellant would indicate that he was simply seeking to get back his money, and thus held the mine for such purpose. The acts of Hunter, the then lessee of the Flagstaff Company and in possession of its property, in entering into the contract for the purchase of the judgment, pointed the same direction; that he was trying to save the property for the company. His contract with the Omaha Company provided that all payments to be made by him were to be payments by the Flagstaff Company if the payments were not completed. They were not completed. [369] The appellant knew of this, and of the contract, which was recognized in the contract between him and Hunter. In reaching the conclusion that the appellant holds his deed merely as a lien to secure his debt, what harm is done to the appellant? Certainly it would not be just for him to hold both the property and the money already received, and the facts satisfy us that such was not the intention. The Flagstaff Company, under these transactions so fully assented to by appellant, have the right to redeem. Having received part payment for his judgment, knowing that such was in the interest of the Flagstaff Company, he waived his rights to hold the property absolutely as against the Flagstaff Company, but that company had the right to complete the payments, and was then entitled to a reconveyance cf the property. Southard v. Pope, 9 B. Mon. 261; Hughart v. Lumberg, 45 Ind. 498; Ott v. Rape, 24 Wis. 336; Kaufman v. Smallwood, 36 Ill. 504. This equity of redemption which the Flagstaff Company had was subject to sale under execution. The action of the court below was, therefore, proper in denying the injunction. The order of the court below denying the injunction is affirmed, with costs. Schaeffer, C. J., and Emeesok, J., concurred.