| Show EXAMINERS REPORT the following is the full text of the report of examiner harkness buthe on the investigation of the charges against receiver dyer and his attorneys tor P L williams and george S peters made in the petition of certain trustees represented by zane zane who made application to be permitted to become parties dar in the suit for confiscation of church property THE REPORT to the supreme burt bourt of the terr territory ory of utah by the order of this court dated january 23 1889 it was referred to me to take and report the testimony as to whether or not there had been fraud corruption misconduct fraudulent and unconscionable claims or professional misconduct in the transactions set forth in a certain petition theretofore filed and by a further order dated january 31 1889 1 was directed to proceed with the bearing hearing and report rt t the he testimony and conclusions and atto attorneys meys were a appointed anted to coon conduct duct th the e examination in behalf of the court under these orders there has been a very full hearing and I 1 return herewith and as part of this report all the testimony and proceedings in which as heretofore the parties are called petitioners petition ers and respondents the large volume of the testimony induces me to att attempt emet to generalize it into statements of facts brov proved besides reporting general conclusions I 1 therefore respectfully reports repart the receiver brought four actions in the third district court of this territory to recover to his possession certain parcels of land on the alleged ground that the land was held in trust for and really belonged to said late corporation which is herein called the for brevity to wit one against zions savings bank and trust company et etal al to so recover forty five feet west front on main street in salt lake city by north front on south temple street situate in the n w corner comer of lot 5 block 75 plat A the record of this suit is file no in said court one against armstrong et etal al to so 30 recover sixty feet west front by feet deep and thirty nine feet north front by feet deep in the same lot the record or this suit is file no in said court the lands in these two suits and also other portions of the same lot are called in the testimony the wells corner or wells lot in the same lot and lying east of the parcels involved in these two suits there is a parcel feet north front by feet deop deep which was included in the compromise herein i after mentioned another suit vs horace eldredge et al to so recover lot 8 block 76 plat A in salt lake city being 10 rods north front by 20 rods east front the record of this action is file no in said court and this lot is referred to in the testimony as the constitution lot or constitution building lot another suit vs cannon to so recover a part of lots 2 and 7 in block 88 of the same plat beginning at the southwest corner comer of lot 2 and running north 25 rods eastla rods south 12 rods west 4 rods south 12 rods and west 5 rods to the place of beginning the record of this suit is file no in said court and the land is referred to in the testimony as the church stables or church stable lot I 1 annex a sketch of these several parcels located with reference to well known at streets and places to aid verbal descriptions evidence was given of the value of these parcels of land on the ad day of march 1887 and on the ath or ath day of july 1888 the date of the compromise of the actions the average of the testimony shows the values as follows IN LOT 5 B 76 75 WELLS im 1888 july 8 feet n w cor 1888 jul july 8 feet n e cor exclusive of building IS IN LOT 8 B 76 constitution LOT 1888 july 8 whole lot ex 6 5 rods square in inn n e cor rk HT LOTS 2 7 B 88 CHURCH STABLES 1888 july 8 and interior lot total july 8 IM it is difficult to reach a satisfactory result of the testimony as to the value in 1887 for some of the witnesses gave the enhanced value in 1888 as percentage on the value in 1887 and in some cases the attention of a witness was not called to that year in respect to all the parcels and there was a wide diversity of opinion on the subject of increase of values both as a whole and as applied to separate parcels taking the gross aggregate te f for or 1888 and I 1 find it would be an increase of for forty per cent on the gross value in 1887 the increase on the stable lova lot was not so 80 much and it was something more on some of the more marketable portions value of all these parcels on march 3 1887 TI the ie values given are for a good unencumbered cambered cumbered cumb ered title about three fifths of the Z C M 1 I shoe factory stands on the easterly end of the feet in depth on the wells lot and the value of this part of the building is fixed by stipulation at and this sum la Is not included in the values above given the construction of the factory was begun in the fall of 1887 suspended for a time under notice that the title would be contested by the receiver but work was resumed and the building nearly earl ft completed before july ath 1888 18 it is understood it was built and is occupied by the zions co opera tive mercantile institution and the building bull at the south end arches the alley ey and adjoins the mercantile house of that corporation otherwise the witnesses made but little account of the improvements improve mente on the lands except one building called the savage building on the constitution lot which was considered of some value a the titles at the time of the commencement of these suits stood as follows wells comer lot 6 5 B 76 75 daniel H wells owned the whole lot prior to 1883 and he was probably the patentee under the townsite act the recorded deeds 80 far as they relate to the parts parti in question are as follows daniel H wells to joseph F smith warranty deed dated may 6 5 1883 recorded june 22 1888 consideration describes De commencing bommen I 1 at northwest corner comer of the lot and aff running south feet east feet north feet feek and west to beginning this deed seems to to include the whole lot except the alley on the south and 6 feet on the east and which is probably half of that alley and the trust for the church is alleged to have commenced here joseph fsmith to george acan non warranty deed dated march 11 II 1887 recorded april 18 1887 consideration describes deschi Des cli commencing at northwest corner thence east feet thence south 1061 13 1 3 feet west feet north 1 feet to beginning george Q cannon and wife to francis armstrong warranty warrant deed dated april 8 1887 recorded record august 18 1887 consideration conveys comme commencing acing 46 45 feet ibi south from northwest corner corder running south 9 feet east feet north 19 1 9 feet west 89 feet south 46 45 feet west feet to beginning george Q cannon and wife to w zions zion Is savings bank trust com rny pany warranty deed dated april 8 1887 recorded may 11 1887 consideration conveys commencing at northwest corner thence east 65 feet south 45 feet west feet and north 45 feet to the beginning francis armstrong and wife to abraham H cannon warranty wax deed dated april ath 1887 recorded august 1887 consideration 10 describes commencing 19 1 9 feet south from northwest corner thence east feet north 18 19 1 8 9 feet west 39 feet south 75 feet west feet south 30 19 1 9 feet to the beginning no trust is declared or mentioned in any of the deeds lot lot 8 block 76 this lot seems to have been held by y trustees for the church until 1878 when john taylor trustee conveyed ebed it to horace eldredge by cou d deed in in w which no trust is expressed jiW five rods square in the northeast corner comer is excluded from consideration both as to title and value beb cause not included in the compromise of the suit prom from 1883 to 1886 eldredge conveyed in five parcels to five different parties feet front commencing at southa southeast corner ana and running north by feet west to an alley and his deeds establish an alley for occupants of the lot 15 feet wide brunni runni running dg north and south through the lot at a distance of feet from the front leaving leavin a piece west of the alley 41 feet wide wide and 20 rods long of this piece west of the alley eldredge conveyed 62 feet off the south end in two parcels to the owners of frontage front aeby oy deeds dated march 2 1887 the he north front east and west of the alley and all the land west of the alley not deeded as aforesaid wae was leased by eldredge to H B clawson november 22 1883 for ten years from froin october 1 1883 at a monthly rental of of the feet front on main street by feet deep not included in the aforesaid deeds nearly elearly if not all of it had been leased by eldredge to various parties for twenty years from october 1 1888 1883 at a monthly rental averaging averaging 1 18 8 per year per front foot for the arst rot ten years and 24 per year per front foot for the last ten years of the time the lessees lessels and their assigns 4 had occupied under these leases and their existence exi dence depreciated the he value of the lessors lessons interest about per front foot by deeds dated march 2 1887 alid redge dredge conveyed to the lessees lessels or their assigns by seven different deeds osda all his remaining interest in the we lot the deeds for 89 15 1 5 feet of the he front on main street were recorded march 3 1887 and the deeds for 82 feet front also the deeds for the we north front and land west of the ayi were recorded later in the same anie month the considerations named in the teeda aads are not shown weft stable dwle m lots las 2 and 7 block 88 the testimony shows this lot was part of the estate of brigham deceased and in the distribution quion carde came to his son alfares young oung who about the year 1882 deeded it to angus M cannon by deed in which no trust was declared 6 b the proba probabilities probability biliti es of success in several suits relating to these parcels of land can only be stated in I 1 n a general way in a collateral inquiry and when no decisive facts are known in the two suits brought to recover the in the wells corner marshall royle boyle were employed as special counsel for the receiver brought the suits and may be considered the leading counsel in them though there were consultations of all the receivers attorneys in regard to what was done the legal title had never been in the church and no conveyance mentioned any trust so far as known there had been no such use of the premises as would afford evidence of a trust counsel considered the evidence to establish the supposed trust would have to be acquired from witnesses unfriendly to the disclosure the main grounds upon which they proceeded was a belief arising from the position in te he church of the grantees granlees gran tees under wells their pecuniary circumstances and a knowledge of the general manner in which much church property was held or supposed to be held the suits were brought after consultations and some hesitation before the compromise romise was reached the attorneys cleved believed they could probably recover these parcels that they had a fair and something more than what would be called a fighting chance in regard ragaa d to the feet north front by feet deep on the northeast part of the lot the receivers attorneys did not think they could recover it they had not brought baroug lit any suit but intended to bring one and take whatever chances there were in the case they found no recorded deed from joseph smith but the Z C M I 1 claimed to have bought and paid for it before march 1887 and to have taken possession and commenced their improvements in good faith the receivers attorneys thought this claim of the Z C M I 1 could be proven one of the receivers attorneys understood the Z C M 1 I was holding under an unrecorded deed the other thought it was a parol contract but that a specific performance could be en forced and both thought the improvements prove ments could not in any event be recovered in regard to the constitution lot in block 76 the receivers attorneys had reached the conclusion that the feet east front by feet deep off the south end east of the alley had been pu purchased and was hold held in good faith under the deeds referred to the last deed having been made in 1886 and they were intending to dismiss the action against the grantees granlees gran tees of such parts of the lot this is the most valuable part of the lot and the value of the feet in 1886 was not less than the prospects of recovering the re remain mainier ier were considered no better than on the wells corner and probably should be considered about the same the full value of the portion for which there was a chance of recovery was not over and tf if the escheat should be subject sub eject to the prior leases they would further reduce the value about the receivers receiver Is attorneys believed they could recover the church stable lot in lots 2 and 7 block 88 and th thought ht they had direct evidence that th the purchase price was paid by the church to alfares young and that it had ever since been used as a stable in connection with the property and business of the church prior to the ath day of july 1888 a compromise of these sul suits and of some other claims made by the receiver was agreed to by the parties and on that day a petition was aft presented ire to the court to obtain a ratification of the agreement the petition is in the record and the only matter necessary to be recited here is that the receiver through his counsel had agreed to include the by feet in the northeast part of the wells lot by amendment in one of the pending suits so that the title of the defendants in the suit to these parcels of laud land should be quieted and it was agreed that in place of all these parcels of land or of the claim thereto specifically there i be paid to the receiver the sum of being in respect to I 1 feet of the wells lot in respect to the constitution ution building lot and in respect to the church stable lot this was about ninety per cent of the value of all the land they hoped to recover in the wells lot about 41 per cent of the value of the stable lot and 50 or 60 per er cent accordingly as the leasehold hold interests are included or excluded of the value of what they hoped to recover I 1 in n the CC constitution lot the compromise was accepted as a whole the attorneys understanding der standing that the percentages of full values were unequal but the gross sum accepted was 63 or 69 per cent depending on the lease question on the whole values the amount accepted was the sum ithac that was represented to have been paid for the lands on the last conveyances vey ances and approximated the full fall value value of all the pieces expected to be recovered march 2 1887 the proceedings before the court were very brief the attorneys for all the parties except the government were present and the district attorney for utah who was one of the attorneys for the receiver represented the government in the main suit so far as to see nothing prejudicial to the government should be done in the absence of its special counsel in making the compromise and presenting it to the court and in the proceeding in court ze the receiver and his attorneys acted in entire good faith and without any intent to mislead the court or to conceal or misrepresent any of the facts the receiver acted mainly on the advice of his counsel and they believed and still believe the compromise was fair and advantageous to the receiver and the government and the means and methods of carrying it out by proceedings in court were ere devised and conducted solely by the counsel of the parties the compromise was ratified by the court the government was soon after notified through is law officers of the compromise and has made no objection but through its said officers has expressed approval of it I 1 refer to the records of the court so far as named in connection herewith I 1 am unable |
