The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-07-27

The supreme court yesterday handed
down an opinion in the csse of J. f.
Hamilton and John S. Rohrer, appellants,
against John Z. Dooly, in which the
cause is remanded to the court below to
set aside the judgment of dismissal and
resolve the issues for the plaintiffs.
The opinion was written by Justice
Bartch and concurred in by Justice Miner
and. District Judge Hiles.
The suit was brought in equity TO es-
tabhsh a trust in favor of the plaintiffs
and 10 compel an accounting by the de-
PENDANT, as trustee. for certain proceeds
of the sale of the Charles Dickens min
ing claim and mill site and other claims
in the Yankee Fork and other mining
districts in Idaho.
Judge Merritt, in the district court,
found that the plaintiffs were guilty OF
laches in the prosecution of the suit and
in failing ana neglecting from Aug z,
1891, to May 20, 1885, TO make the neceS-
sary parties 10 this action and negIecting
TO comply with the order OF the court
that they should bring in such parties,
and on that ground Judge Merritt found
that the complaint shoulu De u 1f.ilS ca
and that the defendant Is enIltied 10
judgment against the plaintiffs Tor MS
costs.
June 20 1854 William A Norton was IN
debted 10 the plaintiffs and others. and
at the time Norton was owner of large
amount OF property, including the DICK
ems and other mines. and on June ~, 1881,
Norton conveyed the property absolutely
10 Dolly. without consideration, but with
the trust as understood by the parties
that DOOly should take charge OF the
property, convert it into money and out
of the proceeds pay the debts of Norton
and return tie balance 10 him.
Dolly, ii Is alleged, sold Norton prop
erty and realized more than sufficient 10
pay Nortons debts, including the
amounts owing. these plaintiffs. but he
failed to pay plaintiffs, and it is alleged
that DoOly kept the proceeds and applied
them to his own use.
The defendant, in his answer, admit
ted the conveyance and the trust. but de-
nieG that plaintiffs were creditors of
Norton and denied that he received more
than sufficient 10 pay Norton 5 debts and
denied that he has any trust money IN
his hands II was further set up in the
answer that DoOly had a mortgage OF
so 900 on a two-thirds interest in the
Charles Dickens mine, and that w. s.
Mccormick had lien on the other third
OF the mine.
Norton afterwards died. and Dooly be-
came the executor of his estate. The
mine, which IS valued at $3.50, 600, was
sold under foreclosure, and Dooly became
the purchaser.
The supreme court held that the plain
tifs had not been guilty of any such
laches as would preclude them from pros
ecuting the suit. Dooly, within ten days
after the time of redemption. sold the
mine to an English syndicate for $3.50. COO
and The supreme court held that Dooly
being a trustee, under the law of equity
was 9recluded from purchasing the prop
erty on his own account and that there
fore he must be required to account for
the profits of the subsequent sale to the
syndicate, and the court below is in
structed TO set aside the judgment of dis
misssu and proceed in accordance with
The directions OF this court. -..
In regard to The alieg9 lions of fraud
by Dooiy, made in TIE Complaint. the
court says:
Fraud may exist and yet not be- sus-
ceptible of proof. To guard against this
hazard, and violation OF duty, and to re-
move the trustee from temptation, equity
imposes on him the disqualification of be-
coming d purchaser of the trust prop
erty fer himself, without the consent of
his ceStlus QUO trust, and thus the rule
destroys the very root OF the evil"