McKay v. Farr

• Citation: 15 Utah 261,49 P. 649
• Decision Date: 07 June 1897
• Docket Number: 784
• Court: Utah Supreme Court
• Parties: ISAAC McKAY, RESPONDENT, v. NEWTON FARR ET AL., APPELLANTS

49 P. 649

15 Utah 261

ISAAC McKAY, RESPONDENT, v. NEWTON FARR ET AL., APPELLANTS

No. 784

Supreme Court of Utah

June 7, 1897

Appeal from the Second district court, Weber county. Hon. H. H Rolapp, Judge.

Action by Isaac McKay against Newton Farr and others. Judgment for plaintiff. Defendant Lorin Farr appeals.

Affirmed.

Elijah Farr and E. T. Hulaniski, for appellants.

Evans &amp Rogers, for respondent.

BARTCH J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

It appears from the complaint in this case that on the 14th of January, 1893, the defendants Newton and Ezra Farr executed and delivered to the plaintiff a promissory note in the sum of $ 900, and at the same time Newton Farr and his wife, Martha D. Farr, executed and acknowledged a mortgage on certain real property as security for the note. When this action was brought by the plaintiff to foreclose the mortgage, the defendant Lorin Farr set up in his answer, as matter of defense, that on the 16th day of February, 1893, Newton Farr executed and delivered to him a note for $ 3,000, and secured it by mortgage on the same property as that described in the complaint, and that the mortgage was recorded on the following day. He also averred that the plaintiff's mortgage was not recorded, and that he had neither actual nor constructive notice of a prior mortgage. At the trial a decree of foreclosure was made, and judgment entered in favor of the plaintiff, and this action of the court is now challenged on appeal.

The decisive question in this case, it being conceded that respondent's mortgage was not recorded, is whether the appellant, at or before the time of taking his mortgage, had actual notice of the existence of the prior unrecorded mortgage. Counsel for the appellant contend that the fifth finding of fact, wherein the court found that the appellant had such notice of the prior mortgage, and of the fact of its being a lien on the property therein described, is not supported by the evidence. This being an action in equity the supreme court is empowered (under section 9, art. 8, of the constitution, which provides, "In equity cases the appeal may be on questions of both law and fact") to examine the evidence, and determine whether it is sufficient to sustain the finding. From the record it appears that only two witnesses, the defendants Lorin and Newton Farr,--father and son,--testified as to this question. The father testified that when he took the note and mortgage he had no notice of the respondent's mortgage, or of any lien on the premises in question. He also testified in substance that he was about 74 years of age, and that his memory was "not so very good as to conversations"; that his recollection and memory of everything except facts were not as good as prior to the time when he received an injury on his head, which was about nine years ago, and was so severe that he knew nothing and was unconscious for over a month; that in discussing this matter his son at first insisted that he had told him about the prior mortgage, but afterwards he thought perhaps he had not told him; that he generally was very dutiful and respectful; and that his son would oppose his judgment as much as any of his children, but he would naturally expect him to give in if they were disputing about facts. Newton Farr testified in substance that, to the best of his recollection, he told his father about the prior mortgage, and that he was giving him a second mortgage. Further reference to the evidence in detail would answer no useful purpose, because a substantial conflict therein is apparent. The father testifies positively, it is true, while the son testifies to the best of his recollection, but under all the circumstances of the case the son's testimony appears quite convincing to the mind. The father himself says that, owing to the severe injury which he received about his head, his memory is impaired as to conversations, and it is quite likely that at this distance of time he has no recollection of what his son said to him about the second mortgage. There is...