Hanks v. Matthews

• Decision Date: 06 June 1892
• Citation: 8 Utah 181,30 P. 504
• Court: Utah Supreme Court
• Parties: MARY E. HANKS, RESPONDENT, v. THOMAS MATTHEWS, APPELLANT

30 P. 504

8 Utah 181

MARY E. HANKS, RESPONDENT, v. THOMAS MATTHEWS, APPELLANT

Supreme Court of Utah

June 6, 1892

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr Arthur Brown, for the appellant.

Messrs Stephens and Schroeder, for the respondent.

ANDERSON J. MINER, J. and BLACKBURN, J., concurred.

OPINION

ANDERSON, J.:

This is an action to have a deed executed by plaintiff to the defendant for certain real estate in Salt Lake City, declared to be a mortgage to secure advances to be made by the defendant for the plaintiff in the payment of debts owing by plaintiff, and in paying expenses of conducting certain business for the plaintiff. The complaint avers that the deed, although regular on its face, was in fact, and was understood by the parties to be, a mortgage to secure such sums as the defendant might advance as payment for the plaintiff; and prayed for an accounting between the parties and that the defendant be required to reconvey the premises to the plaintiff upon the repayment to him by plaintiff of any sums paid out by him for the use and benefit of plaintiff. The answer of the defendant denies specifically the allegations of the complaint, and avers the deed was intended as an absolute conveyance, and alleges the action is brought for the purpose of defrauding the defendant out of any profits there may be on the rise of said property in the market, in consequence of the advanced values of real property in Salt Lake City. The defendant also pleaded the statute of limitations. The cause was referred to a referee, and a trial was had. The referee reported his findings of fact and conclusions of law April 16, 1890, upon which a decree was ordered May 14, 1890, adjudging the deed to be a mortgage, and that there was due from the plaintiff to the defendant, on the 16th day of April, 1890, the sum of $ 1,991.85; also adjudging that the plaintiff pay said sum to the clerk of the court for the defendant's use and benefit within 60 days from said 16th day of April, together with the statutory rate of interest thereon until paid; and that the defendant convey said premises to the plaintiff, and in default thereof that the clerk of the court execute and deliver such conveyance. Exceptions to the findings of fact and conclusions of law reported by the referee were filed by the defendant. The defendant...