Openshaw v. Halfin

BASEIN, J.- Tbis is an action to enforce tbe cancellation by defendant of a mortgage which he held upon certain real estate 'of the plaintiff. The complaint alleges that the plaintiff at various times before the institution of the action tendered to the defendant the amount due on the note which the mortgage was given to secure, and requested the defendant to release said mortgage, and that the defendant refused, and still continues to refuse, to accept said tender and cancel the mortgage. The answer denied the tender alleged in the complaint, and alleged that “said plaintiff ought not to recover any attorney’s fees, because that part of section 2006 of the Eevised Statutes of 1898 providing for an attorney’s fee is unconstitutional and void, because it denies to the defendant the equal protection of the law, in that it gives the plaintiff an attorney’s fee if he obtains judgment, but it does not make the same provision for the defendant if he secures judgment against the plaintiff, and that the defendant has always been ready and willing to accept the amount due on said note and mortgage, and release said mortgage, and offered to do so before filing his answer. Wherefore he prays that plaintiff take nothing.” The trial court found that the alleged tender and requests for the release were made, and that the defendant refused to cancel or discharge the mortgage. It further appears from the findings of the trial court that after the institution of the suit the defendant accepted the amount tendered by the plaintiff, and on the day of the trial cancelled the mortgage; that the amount tendered was paid and received with the express and distinct understanding that the action should be continued for the purpose of determining the amount of costs and the damages and attor [430] ney’s fees claimed by tbe plaintiff. On the trial the court held that the plaintiff was not entitled to anything on account of attorney’s fees, and in the decree entered did not embrace any such fees. The appellant assigns as error the action of the court in refusing a recovery for a reasonable attorney’s fee. The parties stipulated that, if it should be held that the plaintiff was entitled to recover attorney’s fees, $75 would be a reasonable sum for that purpose. No other question is raised in the case. Section 2006, Eevised Statutes 1898,.reads as follows: “If the mortgagee fail to discharge or release any mortgage after the same has been fully satisfied, he shall be liable to the mortgagor for double the damages resulting from such failure. Or the mortgagor may bring an action against the mortgagee to compel the discharge or release of the mortgage, after the same has been satisfied. And the judgment of the court must be, that the mortgagee discharge or release the mortgage and pay the mortgagor the costs of suit, including a reasonable attorney’s fee, and all damages resulting from such failure.” The question here involved is the same as that decided by us in the case of Brubaker v. Bennett, 19 Utah 401, 57 Pac. 170, and that case is decisive of this. The principle involved is fully supported in Railway Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666; Wilder v. Eailway Co., 70 Mich. 382, 38 N. W. 289; Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. 1006; Coal Co. v. Rosser, 53 Ohio St. 12, 23, 41 N. E. 263, 29 L. R. A. 386. In the latter case the principle is aptly stated as follows: “Upon what principle' can a rule of law rest which permits one party or class of people to invoke the action of our tribunals of justice at will, while the other party or another class of citizens does so at the peril of being mulct in an attorney’s fee if an honest, but unsuccessful, defense should be imposed? A statute that imposes this restriction upon one citizen or class of citizens, only, denies to him or [431] them the equal protection of the law. It is true that no provision of the Constitution of 1851 declares in express and direct terms that this may not be done, but nevertheless it violates the fundamental principles upon which our government rests, as they are enunciated and declared by that instrument in the bill of rights. The first section of the Constitution declares that the right to acquire, possess, and protect property is inalienable; and the next section declares, among other things, that ‘government is instituted for the equal protection and benefit’ of every person.” In the declaration of rights in our Constitution (article 1, sec. 2) it is declared that “All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit.” Article 6, section 26, subdivision. 18, provides that “in all cases where a general law can be applicable, no special law shall be enacted.” The decree is affirmed, with costs. MINER, O. J., and BARTOH, J., concur.