Beesley v. Hatch

863 P.2d 1319, 226 Utah Adv. Rep. 19, 1993 Utah LEXIS 144, 1993 WL 477622
CourtUtah Supreme Court
DecidedNovember 19, 1993
DocketNo. 910298
StatusPublished
Cited by2 cases

This text of 863 P.2d 1319 (Beesley v. Hatch) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beesley v. Hatch, 863 P.2d 1319, 226 Utah Adv. Rep. 19, 1993 Utah LEXIS 144, 1993 WL 477622 (Utah 1993).

Opinion

HOWE, Associate Chief Justice:

The trustor under a trust deed which was foreclosed as a mortgage and other defendants who claim under the trustor appeal from a trial court order denying the trustor’s motion to set aside the sheriff’s sale of real property pledged as security in the trust deed.

In 1980, Dell F. Hatch, as trustee of the Jodel Ventures Trust, purchased approximately twenty acres of real property in Hurricane, Utah, for $74,000 from defendant Winferd Spendlove. Hatch executed a promissory note to Spendlove for that amount and secured it by a trust deed on the property which named Spendlove as the beneficiary. The property was described in the trust deed by metes and bounds as one tract. Hatch and Spendlove subsequently amended the note several times to facilitate Hatch’s sale of subparcels to third-party buyers by providing for the release of two acres from the lien of the trust deed for each $12,000 payment on the principal. The trust deed was not amended. Hatch [1320]*1320then sold subparcels to several third-party buyers, some of whom are defendants with Hatch in this action.

Plaintiffs Clay T. Beesley and LaJuana Beesley, who had purchased a parcel from Hatch, brought this action against Hatch, Spendlove, and the other defendants, claiming that Hatch and Spendlove failed to disclose unstable soil conditions. Spend-love cross-claimed against Hatch and the other defendants to foreclose the trust deed as a mortgage inasmuch as payments on the promissory note were then in default. This appeal presents only an issue arising out of the foreclosure.

Eventually, Spendlove, Hatch, and the other defendants stipulated to a judgment against Hatch for $117,730.44, an amount which included unpaid principal, interest, attorney fees, costs, and delinquent property taxes. The trial court entered a judgment for that amount and ordered that the real property described in the trust deed be sold at a sheriffs sale.

Hatch appeared at the sheriffs sale, representing himself and some of the third-party buyers. He demanded that the sheriff sell the property by parcels. Spendlove objected, and the sheriff sold the property in one block to Spendlove for $75,000. Hatch asserts that at least one third-party buyer was ready to submit a bid on the parcel he was purchasing, but he declined when the sheriff refused to sell the property in separate parcels. Following the sale, defendants moved to set aside the sheriffs sale, and Spendlove moved for a deficiency judgment. At the hearing on the two motions, the trial court concluded that the judgment and order of sale directed the sheriff to sell the property en masse rather than in separate parcels and that the sheriff complied with the court’s order. The court also relied on the fact that prior to the sheriffs sale, defendants did not request the court to direct that the property be sold in parcels. Finally, the court concluded that defendants had failed to produce evidence that the sale was unfair or prejudiced their rights. Therefore, the court denied the motion to set aside the sheriffs sale and entered a deficiency judgment in favor of Spendlove.

Defendants’ sole contention on appeal is that the twenty-acre tract described in the trust deed had been broken down by the parties into “known” parcels and that they were entitled to have the sheriff sell the parcels separately. They assert that a sale by separate parcels would have allowed any third-party buyer (1) to bid on the parcel he or she was purchasing without being required to bid on the entire twenty-acre tract, or (2) to redeem a single parcel instead of the whole tract. Defendants rely on section 78-37-1 of the Utah Code and rule 69(e)(3) of the Utah Rules of Civil Procedure.

Section 78-37-1 provides:

There can be one action for the recovery of any debt or the enforcement of any right secured solely by mortgage upon real estate which action must be in accordance with the provisions of this chapter. Judgment shall be given adjudging the amount due, with costs and disbursements, and the sale of mortgaged property, or some part thereof, to satisfy said amount and accruing costs, and directing the sheriff to proceed and sell the same according to the provisions of law relating to sales on execution, and a special execution or order of sale shall be issued for that purpose.

(Emphasis added.) The “provisions of law relating to sales on execution” are embodied in rule 69(e)(3), which states so far as is pertinent here:

When the sale is of real property, consisting of several known lots or parcels, they must be sold separately.... The judgment debtor, if present at the sale, may also direct the order in which the property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the officer must follow such directions.

(Emphasis added.)

On the other hand, Spendlove contends that the controlling statute is section 78-[1321]*132137-6, which is contained in the chapter of our code on foreclosure of mortgages. That section provides in part, “[I]n all sales of real estate under foreclosure the court may determine the parcels and the order in which such parcels of property shall be sold.” (Emphasis added.) Relying on this statute, Spendlove argues that the court issuing the order of sale determines whether the property shall be sold en masse or in parcels and, if it is to be sold in parcels, determines the boundaries of the parcels and the order in which the separate parcels shall be sold.

Defendants argue that although the property was described as one tract in the trust deed, the parties had recognized and created subparcels or lots by amendments to the trust deed note. They refer to the provision releasing two-acre parcels from the trust deed for each $12,000 paid on principal. Defendants also refer to a plat made by the Washington County Recorder which shows several lots created within the twenty acres. This plat was apparently made to facilitate the separate ad valorem taxation of lots purchased by third-party buyers under contract from Hatch. It was not, however, an official subdivision plat which had been prepared, accepted, and filed pursuant to sections 57-5-1 through - 4 of the Utah Code.

We conclude that in order for lots or parcels to qualify as “known lots or parcels” within the meaning of rule 69(e)(3), which requires them to be sold separately, the lots or parcels must be readily identifiable to the sheriff conducting the sale. One example is when the lots or parcels are separately described in the order of sale given to the sheriff as in Cole v. Canton Mining Co., 59 Utah 140, 202 P. 830 (1921). There, the property that was foreclosed on and sold consisted of thirty-five separate mining claims, each having a different name or number. We there held that the sheriff had properly sold the claims separately in obedience to the statute (now embodied in rule 69(e)(3)) and to the demand of the mortgagor made to the sheriff at the time of sale. Id. at 147, 202 P. at 832-33.

In the instant case, the decree of foreclosure and the order of sale given to the sheriff described the property by metes and bounds as one twenty-acre tract. Nothing was furnished the sheriff which would have assisted him in identifying any lots or parcels within the tract.

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Cite This Page — Counsel Stack

Bluebook (online)
863 P.2d 1319, 226 Utah Adv. Rep. 19, 1993 Utah LEXIS 144, 1993 WL 477622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beesley-v-hatch-utah-1993.