The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-06-06

as against the claim of an existing gen.
eral creditor of the corporati ton
AS TO the defendants and cross-com-
plainants. l. d. Schoenberg. Samuel W.
Peck, and Harriet l.. Green, the evidence
shows that they gave their money for
these notes of the CORPORA tion in good
before stated that the trust deed was nn-
recorded. and l think under the evidence
their claims should have priority over
those Of all other claim o. Fen holders,
without. however. any priority as among
themselves. except. however. as to the
1870 of the Box Elder county mines here
matter mentioned.
Il finu also from the evidence that the
intervenor. Charles B. KimbaIl obtained
a judgment in this court on the 9th day
of Ma-ch. 1s.5. against the Copper COM
pany for s. 34S.33 no part of which has
been paid, and that the judgment is a
valid and subsisting lien on the property
of the corporation. subject, only TO the
Hen Of the first mortgage and OF the
lien on parts of the copper mines herein
after mentioned.
Il find also from the evidence that the
time of the making of the second trust
deed, the Copper company was indebted
to otto Stalinan to the amount OF 81 200
for money paid for the company and he
is now entitled TO judgment against the
company for that amount. with interest
and cost. But he is not entitled to a lien
therefor under the second trust deed.
hold that even though the second trust
deed was valid. his lien. would be subject
TO the lien of the first mortgage. because
l find from the evidence that he had
notice of the existence of the first trust
deed when the deed of September a. 1894
was made.
The evidence shows that on September
"a, 1894. at the time the second trust deed
SO called. was made. w S. Mccormick at
the request of some of the directors and
officers of the Copper company, loaned
and advanced for its use S25. GOO that of
this sum SlS 900 was used by the company
TO complete the purchase or as the bal
10 20, of 1x.-h; n1,
the Copper company had agreed to pay
for the Copper Mountain mine in the
Lucia Mining district, Box Elder county
1T appears from the evidence that this
money was Used to perfect the title of the
Copper company to these Box Elder
mines, and therefore | think it equitable
that Mccormick or his assignee, Mr. Har-
rison, should have a lien on an undivided
1879 of these mines. and the findings and
decree N this case should declare such
lien to be equal in time and right to the
lien of Schoenberg, Peck and, Green in the
hrst trust deed so called.
The evidence shows further that S12 900
OF the $4,000 loaned and advanced by Mr.
Mccormick as aforesaid, was used by the
Copper company to pay a balance due
by II on the purchase price of the Cop
psiopolis mine in Juab county, and as to
that sum. Mr.. Mccormick or his assignee
Mr.. Harrison, should have lien on the
s4lc00 notes or stock or property or
fund. which may be the avails of the sale
evidence shows. were sold TO the Ajax
Mining company. and the findings and
decree in this case should declare such
lien IS TO this matter.
The evidence shows that when Mr.
Mccormick rarted with the sos 900 II was
in the contemplation of the parties to the
transaction that it should be paid to com
plete ard perfect the title to those
mines. That the contracts for the pur-
chase thereof might have been forfeited
put for this advance of morey by Mr..
Mccormick. 1t appears. therefore. that
the use of the money was for the benefit
OF the corporation and all its creditors
The riEht created by this payment ana
use of the s25, 900 is in the nature of a
resulting trust. or of a right arising from
a contract in rem.
The general principle which iustifies
this holding is stated by Mr.. Porneroy i'm
ms Equity Jurisprudence. Pom. Eo.
Secs. eSf-6S5
have given to this somewhat compli
Gated case as much attention as | could
amidst multitude of Other labors and
duties. and it IS probable that the con-
clusions here reached. may require modi
hcation before the findings are finally
settled. but with such reservation. find
lngs and DEGREES should be entered for
the plaintiffs and the other lien holders
IN accordance with0this decision.
OGDEN HIIsES. District Judge.
Dated Salt Lake June ), 1897