Paxton v. Paxton, Walker

• Decision Date: 16 November 1932
• Docket Number: 5038
• Citation: 15 P.2d 1051,80 Utah 540
• Court: Utah Supreme Court
• Parties: PAXTON v. PAXTON et al., WALKER et ux. v. SAME

15 P.2d 1051

80 Utah 540

PAXTON v. PAXTON et al., WALKER et ux. v. SAME

No. 5038

Supreme Court of Utah

November 16, 1932

Appeal from District Court, Fifth District, Millard County; Le Roy H. Cox, Judge.

Two suits, one by Frank Paxton to foreclose a mortgage against Anthony Paxton and others, and the other by W. R. Walker and wife against Anthony Paxton, Jr., and others, to have such mortgage adjudged fraudulent as against judgments held by the Walkers against named defendant and his wife, and for certain other relief. From the decree granting the Walkers insufficient relief, they appeal.

REVERSED in part, and REMANDED, with directions, and AFFIRMED in part.

Willard Hanson, of Salt Lake City, B. L. Liberman, of St. Louis, Mo and D. L. Stine, of Ogden, for appellants.

Grover A. Giles, of Fillmore, and J. D. Skeen, of Salt Lake City for respondents.

ELIAS HANSEN, J. STRAUP, FOLLAND, and EPHRAIM HANSON, JJ., concur. CHERRY, C. J., being absent on account of illness did not participate.

OPINION

ELIAS HANSEN, J.

This is an appeal from a decree made and entered in two suits involving the same issues. The suits were consolidated at the trial. The decree appealed from disposes of both suits. In one suit W. R. Walker and Josephine B. Walker, his wife sought the following relief: That a mortgage for the sum of $ 15,000 which Anthony Paxton, Jr., and his wife, Ida Paxton, executed and delivered to Frank Paxton be declared and adjudged fraudulent and void as against the two judgments, one for the sum of $ 194.63, and the other for $ 12,281.86, held by the Walkers against Anthony Paxton, Jr., and Ida Paxton; that a deed whereby Anthony Paxton, Jr., and Ida Paxton, his wife, conveyed certain land in Millard county, Utah, to James C. Paxton be likewise declared and adjudged fraudulent and void as against the judgments held by the Walkers against the Paxtons; that the judgment liens held by the Walkers be declared and adjudged superior to the claim of Charles George to certain described lands in Millard county, Utah; and that the lands covered by the mortgage to Frank Paxton, the deed to James C. Paxton, and the land claimed by Charles George be sold to satisfy the two judgments held by the Walkers against Anthony Paxton, Jr., and Ida Paxton, his wife. The Walkers, by the allegations of their complaint, attack the mortgage to Frank Paxton, the deed to James C. Paxton, and the claimed right of Charles George to a conveyance, upon the ground of a failure of consideration to support the mortgage, the deed, and the agreement to convey, and upon the further ground that the transactions by which Frank Paxton, James C. Paxton, and Charles George claim an interest in the lands, or some of the lands in controversy, were entered into for the purpose of hindering, delaying, and defrauding the creditors of Anthony Paxton, Jr., and his wife, Ida Paxton, and particularly for the purpose of preventing the Walkers from collecting upon an obligation owing to them by Anthony Paxton, Jr., and his wife, Ida Paxton. As a defense to the suit brought by the Walkers, Frank Paxton set up the mortgage held by him, James C. Paxton set up his deed, and Charles George alleged that prior to the time that the Walkers secured judgments he purchased, paid for, and went into possession of the lands claimed by him. Frank Paxton, James C. Paxton, and Charles George each denied that the transaction by which he held an interest in the lands in controversy was without consideration or tainted with fraud. The other suit was brought by Frank Paxton to foreclose a mortgage in which he was mortgagee and Anthony Paxton, Jr., and Ida Paxton were mortgagors. The mortgage covered the land which Anthony Paxton, Jr., and Ida Paxton, his wife, had conveyed to James C. Paxton and also covered land claimed by Charles George. As a defense to the suit brought by Frank Paxton, the Walkers alleged that the mortgage sought to be foreclosed was executed and delivered without consideration and for the purpose of preventing them from collecting an indebtedness owing to them by Anthony Paxton, Jr., and Ida Paxton. As a defense to the foreclosure suit, James C. Paxton alleged that, at the time he was negotiating for the purchase of the land which was later conveyed to him, Frank Paxton stated that he would release his mortgage as to such land. A similar defense was interposed by Charles George to the foreclosure suit. Upon the issues joined in the two suits, a trial was had before the court sitting without a jury. The decree from which this appeal is prosecuted directs: That the title to the lands conveyed to James C. Paxton be quieted in him free and clear of the mortgage held by Frank Paxton but subject to the judgment lien in favor of the Walkers in the sum of $ 194.63; that Anthony Paxton, Jr., and Ida Paxton, his wife, execute and deliver to Charles George a conveyance of the land claimed by him, which land when so conveyed is, by the decree, adjudged to be free and clear of the mortgage held by Frank Paxton and also free and clear of any and all judgment liens in favor of the Walkers; that Frank Paxton have judgment against Anthony Paxton, Jr., and Ida Paxton in the sum of $ 24,562.81; and that to satisfy such judgment the mortgage held by Frank Paxton be foreclosed and the land covered by the mortgage (other than the land claimed by James C. Paxton and Charles George), be sold and that the judgments held by the Walkers against Anthony Paxton, Jr., and Ida Paxton do not constitute any lien or incumbrance upon the real estate which is subject to the mortgage held by Frank Paxton.

The McKellar Real Estate & Investment Company, Alvin M. Jensen and his wife, Emily S. Jensen, James Gardner, and Ed Van Winkle, were originally made parties to the one or the other of the two consolidated suits, but any interest that these parties may have had in the subject-matter of this controversy was satisfactorily disposed of in the court below and they are no longer interested in this litigation. No error has been assigned as to that part of the decree which quieted title in James C. Paxton to the property conveyed to him, and therefore that part of the decree is not before us for review.

On this appeal the Walkers have eleven assignments of error, all of which are bottomed upon their claim that the findings of fact made by the trial court are not supported by, but are against the clear preponderance of, the evidence.

The respondents, in their brief, attack the sufficiency of the assignments of error to invoke the jurisdiction of this court to review the evidence to ascertain whether or not the findings complained of are, as urged by the appellants, against the clear preponderance of the evidence. It is contended by respondents that the assignments do not comply with that part of rule 26 of this court which reads as follows:

"When the alleged error is upon the ground of the insufficiency of the evidence to sustain or justify the verdict or decision the particulars wherein the evidence is so insufficient shall be specified."

One of appellants' assignments, which is typical of the others, reads as follows:

"That the trial court erroneously found (Findings of Fact 1) that on the 15th day of December, 1920, for a full and adequate consideration the defendants, Anthony Paxton, Jr., and Ida Paxton, his wife, made, executed and delivered to plaintiff, Frank Paxton, their promissory note for the sum of $ 15,000 described in said findings; that there is no evidence, however, to support the finding that said note was executed for adequate consideration, or for any consideration whatsoever, and that said finding is clearly against the preponderance of the evidence."

Respondents contend that the assignment just quoted and the other assignments which are in substantially the same form and of like character must be held insufficient under the law announced by this court in the following cases: Egelund v. Fayter, 51 Utah 579, 172 P. 313; Holt v. Great Eastern Casualty Co., 53 Utah 543, 173 P. 1168; Hansen v. Oregon Short Line R. Co., 55 Utah 577, 188 P. 852; Ferguson v. Robertson, 58 Utah 46, 197 P. 225; Wilson & Co. v. Guyon, 61 Utah 565, 216 P. 1078; Eagle Lumber Co. v. Burton Lumber Co., 62 Utah 491, 220 P. 1069; Wright v. First National Bank of Beaver City, 63 Utah 451, 226 P. 671; Thomas v. Perry Irrigation Co., 63 Utah 490, 227 P. 268; Ogden Savings & Trust Co. v. Blakely, 66 Utah 229, 241 P. 221; Bouwhuis v. Johnson, 68 Utah 544, 251 P. 359; In re Application 7600 to Appropriate Water, 73 Utah 50, 272 P. 225; Jordan v. Madsen, 74 Utah 280, 279 P. 499. The assignments in this case are readily distinguishable from the assignments involved in the cases cited and relied upon by the respondents. It will be noted that appellants' assignments in this case specify the particulars wherein they claim the findings are against the preponderance of the evidence. Where a party seeks the review of a specific finding of a particular fact under a claim that the finding of such fact is against the preponderance of the evidence, it is not necessary under rule 26 of this court to set out in the assignment the evidence which supports and which controverts the finding so attacked. Appellants' assignments of error are sufficient to entitle them to a review of the evidence and to the judgment of this court as to whether or not the preponderance of the evidence requires findings that the mortgage to Frank Paxton and the alleged agreement to convey to Charles George are void as against the judgments of the appellants.

The record discloses without controversy the following facts Charles George is a brother-in-law, and Frank Paxton and James C. Paxton are brothers of Anthony Paxton, Jr. On April 27, 1920, ...