Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1897-06-14
NO FRAUD INTENDED.
Suprtma Court Decides Case Of Nc
Clufs Et Al VS.. Little 81 Al.
ATTORNEYS FEES STRICKEN OUT
With his Exception The Judgment OF
the Low Court Is
an med.

an opinion today In the case OF VIII.
liam II. Mcclure OF 81, PLAINTIFF AMI
appellants Va. James T. Little
ami Elias A. smi h defendants
ami We. the Dsseret Savings
bank, intsrvenor, respondent 10.
sructlng the lower court to modify
the findings and decree and to strike
out the $1,000 attorney's fec. With
this exception the judgment and de.
oree OF the lower court 10 affirmed,
with costs.
rhe opinion is written By Justice
Miner and concurrsd IN by Chiet
Justice Zane. Justice Bsrtch sat In
the case simply to cons itute q full
bench. but took no active part in the
herring.
Elias A. Smith and othsrs ~ own.
ers OF Central park In Salt Lake sold 1t
to one William b. Andrews. receiv-
ing part payment down ami taking
two notes for $40. 900 each, an q mort.
gage on the property to secure lite pay
ment.
william H. Mcclure later bought
the property subject TO the mortgage.
rnrougn negotiat ons that afterwards
took place between Smith and Mcclure
the latter agreed to give smith hit
notes, secured by trust deed on the
property and thus take up
the prior encum brance. This
was agreed to and three noies,
one for Sl6, $50, suolher for Sic, 25U aud
another for S2,93l. 40. was gwen, each
| bearing date OF o. obsr l. 1891. anu
made payable In lS92.3.4.
The notes anu trust deed were
drawn up and handel to Moo lure,
VINO took them to Colorado for his
wife's signature. They were som
Time Afterwards signed and returned
to Smith by mail. The trust notes
were Of the usuai form and were
drawn upon printed blanks. Fol-
lowing the words "interest payable"
| the word "sem annually" was left
out. Thu mistake was discovered by
IL, b. Young, cnsnier OF the Deserst
Nation nal bank, who called Mr.. smith,
attention to the error, when the latter,
re arding It as q mere clerical mistake,
wrote on each Of the notes the wofd
''s.m .annuslly."
The notes and trust deed were made
| payable TO Saith with James +. Little
| as trustee.
On the Andrews note Smith was the
endorser and the new otes were en-.
| dofseu by both hs and Mcclure.
In July, 1893, foreclosure proceed.
lugs We're commenced bee use Of the
semtannuai Interest not being psiu
when due. Injunction proceedings
were taken by Mcclure and his vile
/ Ina - - a..
ths sale OF the property and asked to
have the mortgages cancelled ON &C.
count Of the alieged fraudulent altera.
ton Of the notes.
Smith aud Little In their aDswer adj.
miited altering the notes, bat 9 Id 1t
was uone with MoClurs's CONSENT.
They denied making any alteration In
the deeu, but the plaintiff alleged th at
the word "semi.an nuaiIy" Was also IL.
serted there.
The Dsseret National bank came In
as intervenor. alleging ownership Of
tho notet, and claiming 81, 900 lees. Ii
also asked for . foreclosure Of the trust
deed and that the woru "semi-an nual.
ly" be inserted in the notes.
The court in Its opinion holds that
the alteration was mate innocently
and says that the testimony with res-
pect to the trust was Conflicting. The
court Wishes 1t understood, however,
that 1t does not approve OF the methou
OF tampcring with written Instruments
Tor any purpose amt should not have
been made by Mr.. Smith.
The court ueiow nAvlug dec;eet the
right Tor the intervenor 10 reform, ami
granted q decree Of foreclosure, the
urt holds. this was correct anu
proper.
Inc note mot providing any attor.
ney's tees and the intervenor asking
that 1t be allowed 81, 900 to cover such
expense, and the court below haviag
on the evidence OF one witness
made the order allowing same,
the opinion says that no fees
sh quld be allowed, holding that It
would be in cohfiict with the statute
on counsel ard at,orn, y's lees 40 found
In the session laws Of 1894.
"Attorney's fees" In. court says,
"whsn allowed, go TO the mortgage VI
trustee, anu bsoo ne part Ut the
Judgment. The bank 10 responsi DIE
to the attorney fer his Ice and will
doubtless pay q tum equal 10 The
amount 1t has ssse nted was . reason
I