The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-08-17


Osborn, the Geyser Mining company
and Emeline Dressler, in which the
judgment of the lower court is revers-
ed and judgment ordered entered fol
the plaintiffs.
The action was brought by Daniel s
MoSby, an insane person, By his guar
dian ad Item, 5. w Mosby, a2alESt
the defendants. to annul a decree OF
the Third district court of the late ter
ritory of tCah, entered on Sept. l. 1888,
in an action wherein the defendant,
Osborn, was plaintiff. and the defend
ant, Emeline DRESSER, was defendant,
and to cancel a deed executed by her to
the defendant, Osborn. which she pur-
ported 10 execute as the guardian of
Daniel S. Mosby and his estate The
decree and the deed were aSSailed on
two grounds viz: First, that the court
in which the decree was rendered did
not acquire Jurisdiction over the person
of Daniel S. Mosby. Second, that the
decree was procured by fraud on the
part of Osborn.
On Nov. s, 1880, Osborn was the own
er OF the Geyser mining claim at Mer-
Cur and sold a half interest in it TO
Daniel S. Mosby for the consideration
that Mosby advance s., 900 to develop
it and, if required, another sum of
$1,000. Mosby paid the $4,000 and be-
came a half owner in the claim and re-
ceived a warranty deed to it. About
1883 MoSby became insane and ever
since has been in the asylum in New
Mexico. Osborn and Mosby's mother,
Mrs. Dressler, {. lady of "A years of age,
We're on very friendly terms and, ac-
cording TO the finding of the court,
Osborn exercised undue influence over
her on account of their friendship and
persuaded her to be appointed the guar
dian of her insane son. Osborn, the
court also found, persuaded Mrs. Dress
Ter that the money paid by her son for
q half interest in the GeySer claim was
simply a loan, secured by mortgage
on the property. Mrs DRESSER in her
capacity of guardian was then made
defendant in a. suit brought by Osborn
to have such declared TO be the fact,
and when such was accomplished and
the amount of the mortgage paid. Gis-
born received a, clear deed to the prop
ertv.
FOUND THERE WAS FRAUD.
The trial court found that the trans
actions on the part of Osborn We're
fraudulent, but decided that according
TO the law, he had no option, but TO
give judgment for the defendant, dis
missing the plaintiffs case, and such
was entered, from which the plaintiffs
appealed.
MOSBY'S TITLE WAS ABSOLUTE.
The supreme court. after an elabo-
rate statement of the case and dis
cussior of the law and the facts, says:
"Undoub tedly Daniel s. Mosby held
an absolute title to an undivided one
half interest in the Geyser mining prop
erty when Osborn commenced his suit
against Emeline Dressler as the guar
dian of Mosby and that he had held
such title for nearly three years be-
fore. And it appears from the evidence
-, nfGlaf 90 RnIN y
scheme before he suit was brought OF
having Mosby's interest decreed to be
in effect q mortgage to secure the pay
ment of the $1,000 he had paid for it
To accomplish this end he represented
to Mosby's mother that it had been so
agreed between MOSby and himself ID
the summer of 1882, because her So1
had not advanced an additional sum
of 81, 900 he mad agreed to; that he prom
ised her So, 600 if she would consent to
be appointed her sons guardian. who
was then insane. and that she consent
ed and was appointed and was
then made defendant to Gis-
interest so declared. 1t is also true
that Osborn. in his complaint, falsely
represented that Mosby held the deco
to one-half OF the claim simply to Sc
cure the $1,000, and that he controlled
the defendants side of the case as well
as his own; that he prevented Mrs
Dressler from setting up her sons
title; that no defense WAS interposed,
and upon his false testimony the in
sane mans deed was decreed 10 be in
effect a mortgage to secure the s., coo,
and that the court was imposed upon
and nIisled by Gisborn's false testi-
mOny. There can be no doubt that
TIE court would not have granted the
decree complained of if the truth had
haaF1 cfat.zI nv CziChOrIl lvhO was ba
only witness. Osborn not only made
false. statements. but also concealed
facts and prevented an answer or ap- !
pearance in the case There was no
adversary trial This insane mans (
case was not presented to the court /
Il was decreed away by means of de- /
ceit. false statements and perjury.
Equity abhors all such nefarious I
and detestable means 10 misiead and
deceive courts of justice. and deprive I
persons of their rights, especially when /
the victim is insane.
If the fraud now relied on to set (
the decree aside had been in issue in 4
that case and fairly tried, it could not 4
be retired; but such was not the case.
There was no contest before the court /
On the trial in that case. The fraudu- ]
lent devices employed by the plaintiff /
in that case prevented the formation I
of any issue for trial, and they were
eHecluaI IN SuppreSSinS the truth ThlS
insane mans case was not exhibited /
to the court. The decree or the deed
of the alleged guardian made in pur-
suance of it cannot be permitted to
stand. 1.-TWO Freeman on Judgments. |
secs 491 and 1913. L. S. VS.. Throckmor-
ton. 9S u. S. 61.)
The decree of the court below dis
missing plaintiffs suit is reversed. and
the case is remanded with directions
TO that court TO set aside its eonclu-
sions of law. and to state others in ac-
with this opinion. and to
grant a decree annulling and setting
aside the decree of Sept. 1, 1893, in the
case of Osborn VS. tmeline DreSsler.
of the person and estate of
Daniel s. Mosby. and vacating her deed
n pursuance thereof to Osborn. and
adjudging the title to one-half of the
Seyser- Marion claim. the property de-
;criked in the complaint, o be in Dan
Ell S. Mosby. with costs of this appeal
@ plaintiff"
The opinion was written by Chief
Justice Zane and concurred in by Jus
ice Miner Justice Bartch is out of
own and the opinion will be presented
o him for his action thereon when he
'etEr2s.
The plaintiffs say they viii now COM
Gence a.. action against Osborn and
he Generalization company for an ac-
for the value of half of ali
he ore taken from the Geyser claim.
A CHINAMAN ARRESTED.