The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-27
James Thompson VS.. Franklin G
Avery.

James Thompson vs. Franklin c. Ave
ry. appellant from the Third district
court, Hon. S. A. Merritt, judge.
Attorneys Ritchie & Ritchie appeared
for the appellants and Loofbourow &
Kahn and ]. E. Dormer for the respond
ents.
fronting on Franklin avenue in this city,
conveying the same by deed of warranty.
For part of THE purchase price defend
ant executed TO him q prom!SSory note
for $4,000, on which this suit was based.
The note contained a provision, how
ever to the effect that it should not be
payable in any event until present IN
cunlbrances and defects in the title are
removed, and title made good and mar
ketalble." The property had been formerly
owned by one John Bergen, during whose
possession Gn April, 1856, Judgment had
been rendered and entered against him
lin the Third district court on four counts
for unlawful cohabitation in the sum OF
81, 200 in all, and cosUs:'- This Judgment re-
manned unpaid.
Bergen held a mortgage on the prop
erty for part of the purchase money for
which he had sold it, and Thomson as
suned payment, Of the g99rtgag!e when
tee. Plaintiff was withholding payment
of the mortgage TO protect himself
against the Judgment Of the government
until such time as the judgment was paid
or ceased to become a lien upon the
property.
On April Is, 1884, plaintiff. Bergen, and
the latters attorney, met and entered
into an arrangement whereby. 49, 61 was
paid to plaintiff, leaving SlS00 Of the
money still i'm the bank. The parties had
been advised that under the holding of
Snow case only one of the four iudg-
ments against Bergen was valid. OF this
81, 800 1T took $Sll to pay the mortgage,
the remaining 1929 to go to plaintiff. Ac-
he held and plaintiff Cancelled of record
the mortgage defendant had given him.
This left the title to the property clear,
with the exception of the lien of the
governments Judgment. The judgment
would be five years old on April &c, 1891
and If no execution was iss%ed by that
date, as the parties understood, the lien
would then be gone and the property
clear. Plaintiff drew a check to Bergen
for SS71, payable on the 27th if the judg-
ment lien should have then expired, and
as plaintiff lived IN Provo, and did not
expect to be in Salt Lake on that day, he
wrote a cancellation on the face of the
note and left dt with the bank here. TO
be delivered TO defendant when the bal
ranging to make a draft on the 27rh for
mis- part of the money. No execution was
issued and The Bergen check was paid
Avery lived in Fort Collins. Colorado.
The bank had, in the meantime, in dis
regard of plaintiff instructions. sent the
note to defendant, who, upon its receipt.
directed the bank not to pay the 1929
to plaintiff, and the bank, acting thereon,
refused to make such. payment.
Plaintiff brought suit on the note, al
leging that the 1929 and interest was still
due upon it. He sued out a writ of at
tachment and summoned the bank Com
mercial NatioDaD as a, garniShee.
On the trial below plaintiff obtained
Judgment on a verdict of the jury for
the balance due With interest, amounting
in the whole to 1,34S.39, Motion for a
new trial was oYerruled and the case
| comes here on appeal therefrom.
The two nain points now involved are
whether the judgment of the UNITED
| States against Bergen was a lien on the
vas t5 t,e NOT Ie f9rt Mas and au