Bylund v. Crook

• Decision Date: 21 June 1922
• Docket Number: 3764
• Citation: 60 Utah 285,208 P. 504
• Court: Utah Supreme Court
• Parties: BYLUND v. CROOK et al

208 P. 504

60 Utah 285

BYLUND v. CROOK et al

No. 3764

Supreme Court of Utah

June 21, 1922

Appeal from District Court, Fourth District, Utah County; Elias Hansen, Judge.

Action by Erick O. Bylund against Charles E. Crook and wife, and the Payson Exchange Savings Bank. From an order denying a motion to set aside a default judgment for plaintiff, defendant Bank appeals.

AFFIRMED.

R. A Porter, of Payson, and Chas Hatch, of Provo, for appellant.

J. H McDonald, of Provo, for respondent.

CORFMAN C. J. WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CORFMAN, C. J.

This was an action brought by the plaintiff to foreclose a mortgage given to secure the purchase price of land sold by him to the defendant Charles E. Crook on April 2, 1919. The deed of conveyance made by the plaintiff to the defendant Charles E. Crook bears date of April 14, 1919, and the mortgage given by the defendants Charles E. Crook and Alvera L. Crook, his wife, to the plaintiff for the purchase price April 2, 1919, the date the sale was consummated. In truth and in fact, as the record here shows, both deed and mortgage were executed on the same day, the deed first and the mortgage immediately thereafter. The record shows that the dating of the deed April 14, 1919, was an error on the part of the scrivener who prepared the deed and mortgage; that it was intended by all the parties interested in the transaction that the deed should bear the same date as the mortgage, the true date of the transaction. Both instruments were duly recorded in the office of the county recorder for Utah county, the county wherein the lands are situated, on the same day, April 19, 1919. On December 20, 1920, the defendant Payson Exchange Savings Bank, a corporation, took a second mortgage from the defendant Charles E. Crook on the same premises as security for the payment of a debt owing to said bank. In March, 1921, the defendant Charles E. Crook having defaulted, under the terms and conditions of the said mortgage given to the plaintiff, a foreclosure suit was commenced in the district court of Utah county by the plaintiff in which all of the defendants were made parties, the defendant bank as the holder of a subsequent or inferior mortgage to that of the plaintiff. The defendant bank appeared in said action and filed a general demurrer to the plaintiff's complaint. On April 2, 1921, said demurrer was overruled by request of the defendant bank, and 10 days' time taken to answer, without notice. May 16, 1921, all the parties defendant, including the defendant bank, having failed to answer, plaintiff duly filed his praecipe for default against all the defendants, and on the same day, after presenting his proof to the court, was given judgment and a decree of foreclosure against all the parties defendant, including the bank. Pursuant to said judgment and decree the premises were sold at foreclosure sale June 9, 1921. June 10, 1921, the defendant bank filed its motion before the district court in said cause to vacate and set aside the default entered against it and the subsequent proceedings had thereunder by the plaintiff,...