Miller v. Livingston
| Decision Date | 04 June 1900 |
| Citation | 61 P. 569,22 Utah 174 |
| Court | Utah Supreme Court |
| Parties | THOMAS MILLER, RESPONDENT, v. ELIZABETH LIVINGSTON, SR., ARCHIBALD LIVINGSTON, JOHN LIVINGSTON, ELIZABETH LIVINGSTON, JR., NELLIE BURT LIVINGSTON AND EDITH FROME LIVINGSTON, APPELLANTS |
Rehearing denied July 3, 1900.
Appeal from the Third District Court Salt Lake County. Hon. Ogden Hiles, Judge.
Action to foreclose a mortgage and recover an amount due on a note together with taxes and attorney's fees. From a judgment for plaintiff defendants appealed.
Affirmed.
S. W Darke, Esq. and Messrs. Rawlins, Thurman, Hurd & Wedgwood for appellants.
In an action for the recovery of the purchase price of real estate, the recital of the consideration in the deed is at least prima facie evidence of the amount of the purchase price. 6 American & Eng. Enc. of Law, 2d ed. 778, and cases cited.
A recital in a deed is evidence of the fact or incident recited as against the parties to the deed and all persons claiming under them. Abbott's Trial Evidence, p. 712; Gillett's Indirect & Collat. Ev., Sec. 19; Carver v. Jackson, 4th Peters 1, on p. 83; Crane v. Morris, 6th, id., 598, on p. 611.
The evidence offered was admissible, not only in corroboration of the case made on defendant's counter-claim, but as well in rebuttal of plaintiff's witnesses in opposition to defendant's counter-claim. Thompson on Trials, Secs. 386 and 543; 1 Jones on Evidence, Sections 136, 168, 170 3 Jones on Evidence, Sec. 809.
It is presumed that the consideration stated in the deed conveying the property described in defendant's counter-claim, was the true consideration. 2 Devlin on Deeds, Sec. 817.
The mortgage being given to secure the promissory note only, did not justify the court by its decree in making the attorney's fee a lien upon the mortgaged premises. Clemens v. Luce, 101 Cal. 432; Barnett v. Mulkins (Cal.), 40th Pac. 115; Cooper v. McCarthy (Cal.), 36th Pac., p. 2; San Diego Savings Bank v. Lowenstein, Id. 387.
Messrs. Zane & Rogers, for respondent.
The burden of proving the amount alleged in the counter-claim to be due from the plaintiff, rested on the defendants. It was therefore their duty to prove the consideration for the land described in the deed of Jane L. Winsness and Elizabeth Livingston to plaintiff, because that showed whether anything was due from plaintiff, and if any, how much. The defendants went into that proof but it seems they stopped with the deed; but that was not conclusive as to the consideration. If defendants had any other evidence upon which they relied to prove the amount, they should have offered it in the first instance.
"When the burden of proving any matter is thrown upon the party by the pleadings, he must generally introduce in the first instance all evidence upon which he relies, and he cannot, after going into a part of his case, reserve the residue of his evidence for a subsequent opportunity." The Law of Evidence, Jones, 3d Vol., Sec. 809.
It appears from the record that on June 16, 1898, the defendants Elizabeth Livingston, Sr., Archibald Livingston, John Livingston and Elizabeth Livingston, Jr., executed and delivered to the plaintiff a promissory note in the sum of $ 700, payable on or before two years after date thereof, and secured the same by mortgage upon certain real property situate in Salt Lake City. On August 31, 1898, plaintiff, claiming the note and mortgage to be still due and unpaid, brought this action to foreclose the mortgage and recover the amount due on the note, a certain sum alleged to have been paid by him for taxes assessed against the property and a certain sum as attorney's fee. Thereafter the defendants filed an answer denying the indebtedness, and set up a counter-claim for a balance of $ 1,333.30, claimed by them to be due on the purchase price of certain real estate conveyed to plaintiff by Elizabeth Livingston, Sr., and Jane L. Winsness, the consideration mentioned in the deed being $ 4,000. In his answer to the counter-claim, the plaintiff denied any balance unpaid, and alleged that the true consideration was but $ 3,000, and that it was paid at the time of the purchase.
At the trial, the main...
To continue reading
Request your trial