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decided: January 22, 1894.



Author: Shiras

[ 151 U.S. Page 321]

 MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Our examination of this record fails to disclose any error in the decree appealed from.

The proceedings in the District Court of the Territory of Utah, to enforce the mortgage given by the Crescent

[ 151 U.S. Page 322]

     Mining Company to the Wasatch Mining Company, were certainly in pursuance of the terms of that instrument. The defence raised by demurrer, that the Crescent Company could not pay the purchase money into the court until an order of the court permitting such payment had been procured, and that the Crescent Company, not being a party of record, could not procure such order, was not sound, because that reason, namely, that the Crescent Company was not a party of record, equally prevented the Wasatch Company from procuring such order. It is true that the Wasatch Company was a party of record; but, of course, the court could not, on the application of that company, have granted an order on the Crescent Company, not a party and not represented in court, to pay money into court.

It is obvious that the contract, in that particular, required the cooperation of the parties. Hence, when, by the terms of the mortgage, the time had arrived for the payment of the money, it was the duty of the Crescent Company to have signified its readiness to pay and to unite with the Wasatch Company in procuring the necessary order of the court. Not having so done, a right to enforce the mortgage at once arose.

Nor do we think that the defence set up in the answer, that the deed executed by the Wasatch Company and deposited, as provided for in the agreement, in the Deseret National Bank, did not contain all the parcels of land to which the Crescent Company was entitled, was sufficient, because the answer itself disclosed that the Crescent Company had availed itself of its remedy by direct proceedings against the Wasatch Company to reform the deed. Such proceedings would necessarily result in a decision that the deed in question was correct, or else in a reformation of it.

An election to pursue a remedy by an independent action would not seem to have left the Crescent Company free to resist an enforcement of its express contract in the mortgage by resorting to the same matter. However this may be, it is satisfactory to know that this view of the subject worked no injury to the Crescent Company when we learn from our

[ 151 U.S. Page 323]

     own records that the result of that independent proceeding was a decree in favor of the company compelling a reformation of the deed, so as to include all of the lands purchased. Wasatch Mining Co. v. Crescent Mining Co., 148 U.S. 293.

Further objection is urged to the decree of the court below in that it called for the payment of interest on the principal sum from the time fixed for payment until the same shall have been paid into court. It is said that the mortgage does not itself provide for interest, and that if the money had been paid into court it would have there remained without interest. But this is not necessarily so. The court would, doubtless, if so requested by the parties in interest, have ordered so large a sum invested. At all events, it is no hardship that the Crescent Company, which had both the use of the money and the receipt of the issues and profits of the mines, should be charged with interest for the period between the maturity of the mortgage and the payment into court.

Another complaint urged to the decree below is because it directs that the money should be paid into the District Court of the Territory in the case between the two mining companies instead of in the case between the Wasatch Company and Jennings. But the decree discloses that this disposition of the money is only temporary, to await the obtaining of an order in the latter case. Such an order, as the case now stands, is a matter of course, and doubtless can be obtained forthwith, so as to dispense with the intermediate payment.

The decree of the court below is



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