The herald., 1894-07-26
| BOOM TRANSACTION.
! PURCHASE OF LAND THAT
NEVER WAS COMPLETED.
Money Was Paid After which the Pur-
Chasers Are still Lon xingIy Look
ing-Ths Law Stands in
Nhe Way.

In the case Of George F. Dietz ct al,
vs.. R. F. Lotspeich ct al. Judge Van
Dyke yesterday sustained 4 demurrer to
the complaint.
The case arose over one OF the old
boom" transactions in which the par.
ties became involved in q curious legal
complication which has been straight.
ened as to some of them by Judge Van
Dykes decision.
The circumstances OF the transaction
were that January IL. 1877, M. L. Wicks
conveyed to X. +. Lotspeich AZ trustee
certain real estate Tor the purpose Of
more expeditioualy and economically
managing and aolling the property and
applying the proceeds to the payment OF
two mortgages. He WAS to hold the
lands for the benefit OF third parties in
proportion to their interests.
September 9th of the same year Mr..
Wicks, BY further deed, conveyed to
Lotspeich as trustee for third parties
$40 acres conveyed to him by Mary and
Patrick Connolly in the preceding Jan.
uary.
On the 25th OF January, 1899, Lots.
peich in execution OF the trust aud for
the purpose oil carrying out prior agree.
ment with the plaintiffs executed to
them grant, bargain and sale for 10
screB Of land, it being Q portion of the
800 acres referred to.
The plaintiffs in the complaint in this
suit aver that they relied upon the rep
resentations of Lotspeich that the title
in him as trustee was perfect and paid
him Sl4l6, part OF the purchase money.
and gave him their note for 1896, the
balance, and also a mortgage upon the
property to secure the note.
The plaintiffs also state that Lotspeich
before the execution of the doed and
mortgage falsely represented that the 10
acres were free of all incum ORANGES and
had been released from a $20, 1000 mort.
gage on the 800 acres. in which WAS q
clause providing for a release OF any AZ
acres upon payment of $4,000 by tho
mortgagor. Upon his assurance that tho
releaee had been carried out, they &C.
cepted the deed and gave the mortgage
for the balance.
But the release had not been made,
and February II, 1898, Mary Connolly
obtained decree of foreclosure. The
property was sold under the decree, and
was bought in by Mary Connolly.
On June 5, 1904, the PLAINTIFF ten.
dered Lotspeich as trustee q quitclaim
deed to the 10 acres, and demanded OF
him release of the mortgage they gave
him and repayment of tho $14l5 they
paid him. He refused to carly out the
request.
Such is the queer complication in
which the boom project involved all the
parties to this suit. and the PLAINTIFF
n n lnv1n
sight of the money they cast to the
windward.
One OF the third parties Gemurred to
the complaint on the ground that It did
not STATE facts sufficient to constitute q
cause OF action against them. and Judge
Van Dyke, in ruling upon the demurrer,
says that there is nothing to show that
the benefciaries in the trust deed knew
anything about the representation
charged to have been made By Lstspeich
authorized him make them.
He also says that there 10 nothing to
show that they ever received q cent OF
the money that the PLAINTIFF paid Lot.
speich on their purchase. or that they
knew anything about the transaction.
The powers and drties of Mr.. Lotspeich
were expressed in the deed Of trust and
anything he may have said or done OUT
side OF the scope of these would not
bind the third parties.
The mortgage was Of record and tho
court says that there was no reason
given or shown why the PLAINTIFF did
not examine the record to see whether
it was satisfied or discharged. By the
terms of the mortgage the mortgages
were not required to satisfy any quantity
less than 40 acres upon the payment Of
$4,000. and the plaintiffs purchase was
only 10 acres for $4,000.
Judge Van Dyke therefore holds that
as to the defendants, who are the bene-
iciaries mentioned in the trust deed to
Lotspeich. the complaint does fail to
state cause OF action.