The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1880-09-28
THE TOWNSEND CASE.
The Supreme Court AfIlrms the
Decision Of the Lower Court.

The Supreme G0urL AhlrnS III
Decision Of the Lower Court.
And Confirms tho Respondents il
Their Rights.
An Appeal to BE- Taken to tn
4 Supreme Court of the United
States.
The following decisi ln was deliv.
cred on Saturday by ]. 8 Foreman
associate justice. Appellants coun
sci gave notice Of an appeal to the
United States Supreme Court:
In the Suprems Court Of Utah Terri.
tory. June term. 1880.
Elizabeth NJ. Townsend, appe LIANT,
William b. Hooper, William Jennings,
ct al, respondents.
Appeal from the Third District.
One James Townsend owned certain
real estate-hotel property, and gave q
deed Of trust thereon to secure the pay
ment Of several of his promissory notes
to Respondent Hooper. The notes were
not paid and the trustees sold the trust
property st public sale, in accordance
with the deed, and WiIlism Jennings,
one Of the resp undents, became the pur-
chaser. The validity of these transac-
tions is not questioned herein by said
james Townsend; but FL zsbeth NJ.
Townsend has claimed half interest in
the property, aRd brought this suit to re-
cover that interest. Judgment of the
District Court was for the defendants,
and the motion for q new trial being
sverruled, the plaintiff has appealed to
| this court iiG
The appellant bases her claim to the
| half interest upon secret agreement be-
tween herself aud faid james Townsend,
whereby she was to be his equal partner
in the hotel business and to own one-half
Of the property. This was a private, Sc
cret compact, which the parties thereto
did not de.ire the public to know any
thing OF, and both said James Townsend
and the appellant testify they purposely
sought to conceal from the public the ex-
icbChOCOA Ai0Ni ZIG ChNQcllCt
in this case, they effectually succeeded;
and not only the public generally, but
| Respondents Hooper, Jennings and
Roberts, as we'll as the trustee, were in
toial Ignorance Of the existence of any
such agreement, or Of appellants claim
Of interest, until after the trustees sale
and the payment Of the purchase money.
Now, however, the appellant comes
forward and alleges that these respond
ents-Hooper and Jennings, as well as
Roberts-were bound in law to take no.
tice IF this secret partnership sgreement,
notwithstanding her and sai1 James
TOwnsend's efforts to conceal it, and that
they obtained their interests subject TO
her rights. There is no pretense that
said respondents had any actual notice of
the agreement but deny that her course
and conduct were sufficient TO notify
them Of IFS existence. The title to the
property was in James Townsend, the
claim for deed from the Mayor under the
tpWnsite act ard the deed from the
Mayor were in his name, the business OF
the hotel was carried on and advertised in
his name, the relations between said
James Townsend and said appellant, so far
as the public were concerned, we're no
different after the making Of the agree
ments from what they were before its
making, and there was 10 change in her
cInduct about the hotel, so far as the
public could know, after the making of
agreement from what it was before
It's making; and the agreement itself was
not Of record anywhere. not even reduced
to writing.
The appellant knew Of these debts for
some years but did not see proper to
notify the owners Of the claims, that she
had any interest or that she C aimed any
interest in the property, until after the
trustees sale, and the purchase by Jen-
nings. The fact that appellant was the
DO ygamous wife of said James Towns
end could give her no advantage nor be
the basis of any claim 10 the property,
If it servei any purpose e, it was 10 aid
her and James Townsend to more
efectually conceal the secret partnership
agreement, but she cannot claim any
benefit from her own wrong. The fact
that she was the housekeeper al the hotel,
would give no notice to the public that
she had any interes. beyond that Of q
hnusekeer. 1t would not lead the public
to believe that she owned or claimed any
interest in the property OF that she was
in possession of it. So far as the public |
was concerned she claimed no possession |
either as partner or other wise. The |
character of the business aud her relation
thereto continued after the agreement
just as before it.
With all these facts in view, the Res
pondenis Hooper and Jennings and
Roberts were not bound to take cogniZ-
anee of the existence of the partnership |
arrangement between the appellant aud
James Townsend. The rights Of the said !
re- pondents could not be affecte by the
agreement. They stood as purchasers
for value and acted in good faith, and the
fault was that of the appel mt in conceal
ing the agreement. The trustees we're
purchasers for value New Orleans Z.
& B Co. VS. Montgomery 50, U. s. p. l6.
It il alleged thst the Mayors deed tol
James Townsend is not valid because it
is Lot witnessed, ard the acts preceding
it are not shown. 1t would signify nothing
to the appellant, 1t would seem, whether
the deed was valid or not, AS she claims
through James Townsend-by contract
with him. But the deed lie nStI
invalid. No witnesses were necessary.
The statute points out how such deeds
shall be made and Acknowledged. Comp.
Laws, Il66, sec /. And it was pTimG
fdcie evidence that the Probate Judge had
done all that was necessary to its execu-
ton. Cofe.d VS.. McLelland, Is Wallace
335.
Ifit were alleged and true that the in
teres,s of Jennings, Hooper ct al, res
pondents, arose out of q fraud, or were
Ia effect a fraud upon the appellant, she
has rested too long upon her rights,
and they are now barred by the statute
| Of limis atiopE Comm Laws. u. 1866
Q1l0.) Besides, there was no objection,
at the time, to the introdueiion Of she
| deed In evidence.
We, Therefore, see no error in the judg-
ment Of the court below, or in the order
overruling the motion for q new trial.
The Judgment and order overriding the
motion for new trial are affirmed, with
costs.