Show James Thompson vs Franltlin O Avery James Thompson vs Franklin C Avery Ave-ry appellant town the Third district ut Hon S A Merritt judge Attorneys Ritchie Ritchie appeared for the appellants and IooCBourow for the respond Kahn and J E Dormer 1be i ents On February 27 1S90 tho plaintiff Thompson sold to Avery certain premises fronting on Franklin avenue in this city conveying the same by deed of warranty inS defend For part of he purchase price ant executed to him a promissory note for 4000 on which lihis suit was based The note contained a provision however how-ever to the effect e that it should not be payable in any event until present in cumbrances and defects in tttie title are reimtoved and title TOlade good and mar ketaDle The property had been formerly owned by one John Bergen during whoso possession in April 1886 judgment had Been rendered and entered against him j tin the Third district court on four counts for unlawful cohabitation in the sum of 1200 in all and cost This judgment remained mained unpdid ne unpid Bergen held a mortgage on the property prop-erty for part of the purchase money for wlhlch he a sold it and Thomson assumed sumed payment of the mortgage when 5ie bought the place from Bergens grantee gran-tee Plaintiff wlas withholding payment of the mortgage to protect himself against the judgment of the government until such time as the judgment was paid property or ceased to become a lien upon the On April 15 1891 plaintiff Bergen ante an-te latters attorney met and entered Into an arranseirient whereby 2561 was paid to plaintiff leaving 1800 of the money still dn the bank The parties ha been advised that under the holding of the United States Supreme count in the Snow case only one of the four judgments judg-ments against Bergen was valid Of this S1SOO i took SS71 to pay tine mortgage the remaining 020 to go to plaintiff Accordingly Ac-cordingly Bergen canceled the mortgage he held and plaintiff canceled of record the mortgage defendant had given him This left the title to the property clear i with the exception of the lien of the I governments judgment The judgment would > be five years old on April 2 1891 and if no execution iwas issued by that W date sn the parties understoOT the lien would then be gone and the property clear Plaintiff drew 3 check to Bergen O 871 payable on the 27th i the judgment I judg-ment lien should have then expired and a plaintiff lived in Provo and did not expect to be in Salt lake on that day > he wrote a cancellation on the face of the note and left it with the bank here to be delivered to defendant when the balance ance of the money was paid over arranging ar-ranging to make a draft on the 27Ch for nis part of the money No execution was issued and he < Bergen check wa paid I Avery lived in Fort Collins Colorado The bank had in the meantime in disregard dis-regard of plaintiffs instructions sent the note to defendant who upon t receipt directed the banK not to pay the 929 to plaintiff and the bank acting thereon refused to make such payment Plaintiff brought suit on the note alleging al-leging tihat the 929 and interest was still due upon dt He sued out a tit of at todhment and summoned the bank Commercial Com-mercial National as a garnshee On the trial below plaintiff obtained judgment on o verdict of the jury forte for-te balance due with interest amounting in the whole t l34g39 Motion for anew a-new trial was overruled and the case comes here on appeal therefrom The two man points noW involved are whether the judgment of the United States against Bergen was a lien on the land when the action en tction WW brought and was the note discharged and canceled |