The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1907-03-09

until I turned II over TO the bank
The gentlemen that were there instructed
me to hold the deed until payment was
made Cora did not instruct me 10 hold
the decd or deliver it or To have it made.
| did II on my own responsibility
She further testified that II was, about
a month thereafter delivered TO the bank.
Cora knowing nothing about H. nor did
she know anything about the money and
that the money was never received by
Cora. but that the witness used $50 OF
1t for Coras benefit without her knowl-
edge or consent While IL Is true that
formal physical act on the part Of the
erantor may not he necessary to con-
stitute delivery. still the mind must as
sent 10 the ceremony constituting dellv-
cry in order to constitute valid deltv-
cry and 30 make the deed a binding con-
travt. This assent is wholly wanting in
this case, In view of all the surrounding
circumstances. and therefore for this rea-
son there never was a binding and en-
forceable contract.
Innocence Mo Factor.
But it is urged that the, defendants
or say In the transaction. and were not
connected Herewith by any authorized
agent or agents. Let this be conceded
and still they cannot prevail II 1T WASH I
the act OF Cora Birdsall, then nothing
was done. and mere innocence alone can
not make that a contract which, as
matter of law. never was SUCH in case
like the one al bar at least IT appears
however, that the principal defendant and
the sole beneficiary of the deed was not
wholly innocent. In his testimony, in
speaking Of the church proceedings which
LED To the making OF the deed he says:
when l instituted proceedings in the
bishops court ] believed that If | got
the decision Cora would either have TO
abide the decision or he disfellowsbipped
knew if the decision went against her
she either had to deed me the property
didn't take the-cas 10 the District court
because | would try her fellowship FIRST.
He wanted the deed for the land and evil
IDENTIFY was willing that the very methods
that induced Cora Btrdsal 10 make IT
should be employed While courts always
encourage amicable settlements out OF
court and I'm all proper cases will en-
force them. they never encourage coer-
cion OF any kind and are jealous 10 guard
the property rights OF the individual
against every species Of eDcroachment
While courts do not interfere In dis
putes between churches and their mem
bers in respect 70 church or spiritual af
fairs, the property rights OF the members
will be protected as readily from church
Interference as any other IT, therefore,
the defendant had or has any equities
against Miss Blrdsall. the courts always
were and now are open TO him.
Bishops Court STACKED.
II he wants 10 arhitrate any differ
ences that may exist in respect TO prop
erty rights, he must al least give ~
adversary the right 70 have voice IN
the selection of the arbitrator. This. il
seems, he was unwilling TO do. ana tnerc-
fore. whether viewed from the standpoint
Of equity. law or morals, he is in no posi-
tion to insist on the enforcement OF the
deed In question.
We have cited no authorities. We shall
cite none. since IL would be a work OF
supererogation 10 do so I'm a case where
the decision is manifestly against the
fundamental principles OF both law and
equity. Fairness, however, TO hotn court
and counsel requires the statement that
both relied too much upon the thought
that since there was no misreprescnta-
tion, no actual fraud restraint or active
coercion. therefore there was no legal
reason 10 set the deed aside Both court
and counsel have overlooked the fact that
If there had been such, relief would
have been granted 10 the strongest mind.
In the mentsl> condition OF Cora Bird
sail. however, that which might not
have been sufficient in stronger mind
Is ample 10 give her the relief sought
The Judgment Of the court below is
reversed, the court is directed to vacatc
and set aside It's findings and conclusions
OF law: to substitute others I'm conform
ity with the views expressed in this
opinion, and 20 enter decree declaring
said deed void and cancel the same and
reinstatc the plaintiff I'm all her rights In
respect 10 the property described In the
deed and grant her the relief prayed for
in the complaint. The plnintin to re
cover costs. II Is so ordered.