Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-07-26
REVERSAL ORDERED
SupTs ne COlF Decision In tho Case
oil Hamilton VS. D0Ol0y.
DID NOT ACQUIRE 4 PROPER TITLE
Opinion by nl!icb--Sues for Divorce
Allegations OF Gross Cruelty
Court Notes.


Tho Supreme Court handed down
m opiulon today in the caso Of ]. f.
Hamilton snC john 5. Rohrsr VS. John
d. Djoly, 'remauding the cause to the
court below and with directions to set
aside the judgment of dismissal and
pIocloI to re.tfy the case. The
apinion was delivered by Justice
Bsrsch and 10 concurred In by Justice
Minor aud Distrlc, Judge Ogden
HiieE.
Tho plaintiffs IN this case brought
vi. to establish trust in their favor
aud asked tia, D)oly, NJ trustee OF the
estate Of Wm. A. Norton, bn required
to give an accounting for the proceeds
n the sale 4 mine und other prop
erty which had come Into his hands.
The complaint alleged that in June,
1854. Norton was ildebtei to Hamil-
ton emf R1hrtr and that when Dolly
was appointed trustee and executor OF
the Norton estate, no was to convert
the same iuto money, with which to
pay Oh all debts. Dooly, the com.
pluiut alleges, sold cOnsI cradle prop
erty, which Included the Charles
Dickeus mine, appropriating most OF
the amount realized TO satisfy a judg.
ment rendered III his favor.
DJOy in his si swer claimed that he
anu w. $. McCOrnick mad mortgages
on the Dl k ins property for amounts
aggrega!lng S4l ,3BS,T7, ana that ne
sold the properly 10 satisfy judgments
rendered in the urts OF Custer c1uu.
~, Idaho. Two birds OF the property
was bought In by Dolly for SIS, 900 and
the other third by w. S. Mccormick
for S24 600, Both purchases were
made IArou b II. g, Chambers, WIN
later, acting as trustee for Dolly IL
Mccormick, cold The property to an
Eng syndicate for 500 900. The
amount receivej, according TO the
c1utl's decisiOu-gIven OF the fOreclo.
sure pfoceedlngs--was freed from any
trust. AT the trial final Judgment was
entered In favor OF the defendant
DoOly. Plaintiffs maze a motion
Tor new trial winch was overruleu,
when an appeGl from the final juug-
ment was takeu.
The curt holds that as Dolly wac
oulslGe OF bis relation OF mottgagee-a
uus.ee OF the property, he dil not
Properly at the sale, anu that lie there
lore must be required to account for
the profits he received when hs sod
the mine to the Elgllsn syndicate.
Counsel for plaiot ifs alleged that
DooIy was guilty OF acGual fraud. The
court commenting on this sDys thai,
however innocent aud fair me pur.
chase, II was vicious In its conse-
quenCes and that 1t was not necessary
10 ulle2e or prove that the defendant
was guilty OF lrauu, or that he made
q sale advantageous to himself. Con.
tinuing the court esyt:
"Fraud may exist and yet not be
suceptiule OF proof. 70 guard against
this hazard, ana to violation or duty,
and 10 remove the trustee from
temptation, equity imposes on him
tie capitalization OF becoming
a Jurchsser Of toe trust property
for himself, withou the consent Of his
ceslius quo trust, aud thus the ruls
destroys the very roOt of the evil"
The cOurt then orders that the judg.
ment OF the lower court be set aside,
GAYS HE ILLTREAIED HER.
Nellie Nj. Foster flied "a suit ios 81.
vorce sgains; William n. Foster today,
alleging gross cruelty ON the part OF
her hnsbanu and asking that the
bonds OF mstrimony existing between
herself ana Foster be dissolved, that
che be awarded the custody OF a minor
child and that he be required to pay
her the sum OF 81 800 aiimony at the
rate OF SIS per week until the whole
shall have been paid.
The parties were IN arried In this city
on the 10 usy of August, 1895. Four
IN onths later, plant, q alleges, Fuster
struck her 10 the Il or anu choked
her, while residing at Eureka, necre-
sitntinE her leaving him anu living
with her mother. Foster Is also
accused OF drunken HABITS anu Of re-
sorting to houses OF III fame.
John ID. Murphy Is plaintiffs
attorney.