Norton v. Fuller

• Decision Date: 13 September 1926
• Docket Number: 4343
• Court: Utah Supreme Court
• Parties: NORTON v. FULLER et al

251 P. 29

68 Utah 524

NORTON v. FULLER et al

No. 4343

Supreme Court of Utah

September 13, 1926

Rehearing Denied November 27, 1926.

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

Action by C. E. Norton against L. V. Fuller and others. From a judgment against plaintiff in part, he appeals.

AFFIRMED.

C. E Norton, of Salt Lake City, for appellant.

Booth &amp Brockbank, of Provo, for respondents.

CHERRY, J. GIDEON, C. J., and THURMAN, FRICK and STRAUP, JJ., concur.

OPINION

CHERRY, J.

This action was brought by the plaintiff against L. V. Fuller and Mary Fuller, his wife, and Sarah C. Holley, as administratrix of the estate of Moroni Fuller, deceased, to foreclose a mortgage alleged to have been executed by W. V. Fuller to secure the payment of $ 150 upon "house and lot situated on the north half of lots 2 and 3, section 4, township 8 south, range 3 east, Salt Lake meridian, and all of their right, title, and interest in the estate of Moroni Fuller, deceased, and Eliza Fuller, deceased, their father and mother, late of Springville, Utah, which is now being probated in Utah county district court." It was alleged that Sarah C. Holley, as administratrix, etc., claimed an interest in the mortgaged property, but that such interest was subsequent and subject to the plaintiff's mortgage. L. V. Fuller and Mary Fuller made no appearance or answer, and a default was entered against them. Sarah C. Holley filed an answer, denying the execution of the mortgage sued upon and alleging that, without any notice or knowledge of the plaintiff's purported mortgage, she had, as administratrix of the estate of Moroni Fuller, deceased, under a proper order of the district court, sold and conveyed a particularly described tract of land embraced within the north half of lots 2 and 3, section 4, township 8 south, range 3 east, Salt Lake meridian, to one Fred Manning, who was now the owner and in possession thereof. She further denied that W. V. Fuller was an heir of Moroni Fuller, deceased, and set forth that L. V. Fuller who was an heir, had, at a date subsequent to the date of plaintiff's mortgage, and on August 14, 1924, sold and conveyed to her for $ 125 all of his right, title, and interest in the estate of Moroni Fuller, deceased. She further alleged that the plaintiff's purported mortgage was void for uncertainty of description of real property, and that the acknowledgment thereof was void and illegal because made before and certified to by the mortgagee himself, who was a notary public, and that the same was therefore not entitled to be recorded, and that any purported record thereof constituted no notice thereof whatsoever.

The plaintiff filed a reply in which he averred that L. V. Fuller, the defendant, and W. V. Fuller, the mortgagor, was and is the same person; that L. V. Fuller was an heir of Moroni Fuller, deceased, and entitled to a one-seventh interest in his estate, which interest was mortgaged to plaintiff. He prayed that the conveyance of the said interest in said estate by L. V. Fuller to Sarah C. Holley be set aside, and that the said interest be subjected to the plaintiff's mortgage debt.

A trial was had before the court. There was no substantial dispute as to the facts. The defendant L. V. Fuller testified that he executed the plaintiff's mortgage by signing the name W. V. Fuller to it, and that he acknowledged the execution thereof before the plaintiff. He gave no satisfactory reason why he did not sign his own name to the mortgage. It also appeared that the mortgage, so executed and acknowledged, had been recorded in the office of the county recorder of Utah county on June 19, 1924.

The sale of the real property referred to by the administratrix was not questioned and no lien upon any particular real property was asserted by the plaintiff. The controversy related to the validity of the sale and conveyance by L. V. Fuller of his interest in the estate of Moroni Fuller, deceased, to the defendant Sarah C. Holley. Although not pleaded, the plaintiff contended that such transfer was procured by Sarah C. Holley by misrepresentation and fraud, and that the same should be set aside and the interest of L. V. Fuller in the estate mentioned be subjected to the plaintiff's mortgage debt. The court permitted the details of the transaction to be proved, and made findings thereon to the effect that the sale and conveyance had been fairly and legally made without any notice or knowledge on the part of Sarah C. Holley of the plaintiff's claim. A judgment was rendered in favor of the plaintiff against L. V. Fuller for the mortgage debt, but the plaintiff's claim to a lien upon the interest of L. V. Fuller in the estate of Moroni Fuller, deceased, was denied, and the same adjudged to belong to defendant Sarah C. Holley.

The plaintiff has...