Mallory v. Kessler
Utah Supreme Court
Appeal from the Third district court, Salt Lake county, Hon. A. N. Cherry, Judge. Action at law by D. D. Mallory against E. A. Kessler and E. D. Hoge to recover $2,274.67 as a deficiency after sale under a trust deed. From a judgment for plaintiff, defendants appeal. The opinion státes the facts. The language of 3460 Compiled Laws of Utah is imperative and unmistakable.
Read the full summary
Appeal from the Third district court, Salt Lake county, Hon. A. N. Cherry, Judge. Action at law by D. D. Mallory against E. A. Kessler and E. D. Hoge to recover $2,274.67 as a deficiency after sale under a trust deed. From a judgment for plaintiff, defendants appeal. The opinion státes the facts. The language of 3460 Compiled Laws of Utah is imperative and unmistakable. But one action is permitted for the recovery of any debt secured by mortgage, and such action must be in accordance with the provisions of chapter 1. At common law a mortgage, after the condition day, was an absolute…
1Opinion of the CourtBartch, J.
In this case it appears that the defendants borrowed of the plaintiff the sum of $6,000, and evidenced the same by their, note secured hy a trust deed. Upon failure of payment, the property given as security was sold, under the power in the deed, and the proceeds applied in payment of the note. This left a balance of $2274.67, asa deficiency, to recover which the plaintiff instituted this suit.
Two questions are presented on this appeal: First, after sale, under a power in a trust deed, can an action at law be maintained for a deficiency ? Second, was the notice of sale sufficient under the…
2Cases cited2 opinions
- Shepherd v. MaySupreme Court of the United States · 1885
- Blumberg v. BirchCalifornia Supreme Court · 1893
3Cited by3 opinions
- Sacramento Bank v. CopseyCalifornia Supreme Court · 1901
- Salt Lake Valley Loan & Trust Co. v. MillspaughUtah Supreme Court · 1898
- Zion's Savings Bank & Trust Co. v. RouseUtah Supreme Court · 1935