Bylund v. Crook
208 P. 504
Utah
1922
Check Treatment
CORFMAN, C. J.

This was an action brought by the plaintiff to foreclose a mortgage given to secure the purchase' price of land sold by him to the defendant Charles .E. Crook on April 2, 1919. The deed of conveyance made by the plaintiff to the defendant Charles E. Crook bears date of April 14, 1919, and the mortgage given by the defendants Charles E. Crook and Alvera 'L. Crook, his wife, to the plaintiff for the purchase price, April 2, 1919, the date the sale was consummated. In truth and in fact, as the record here shows, both deed and mortgage were executed on the same day, the deed first and the mortgage immediately thereafter. The record shows that the dating of the deed April 14, 1919, was an error on the part of the scrivener who prepared the deed and mortgage; that it was intended by all the parties interested in the transaction that the deed -should bear the same date as the mortgage, the true date of the transaction. Both instruments were duly recorded in the office of the county recorder for Utah county, the county wherein the lands are situated, on the same day, April 19, 1919. On December 20, 1920, the defendant Payson Exchange Savings Bank, a corporation, took a second mortgage from the defendant Charles E. Crook *287on the same premises as security for the payment of a debt owing to said bank. In March, 1921, the defendant Charles E. Crook having defaulted, under the terms and conditions of the said mortgage given to the plaintiff, a foreclosure suit was commenced in the district court of Utah county by the plaintiff in which all of the defendants were made parties, the defendant bank as the holder of a subsequent or inferior mortgage to that of the plaintiff. The defendant bank appeared in said action and filed a general demurrer to the plaintiff’á complaint. On April 2, 1921, said demurrer was overruled by request of the defendant bank, and 10 days’ time taken to answer, without notice. May 16, 1921, all the parties defendant, including the defendant bank, having failed to answer, plaintiff duly filed his praecipe for default against all the defendants, and on the same day, after presenting his proof to the court, was given judgment and a-decree of foreclosure against all the parties defendant, including the bank. Pursuant to said judgment and decree the premises were sold at foreclosure sale June 9, 1921. June 10, 1921, the defendant bank filed its motion before the district court in said cause to vacate and set aside the default entered against it and the subsequent proceedings had thereunder by the plaintiff, upon the grounds .of fraud, mistake, and excusable neglect. Said motion was supported by affidavits and accompanied by an answer, among other things not material here, to the effect: First, that said judgment by default had been taken while an attempt was being made by the plaintiff to dispose of his first mortgage to defendant bank; second, that, by reason of the datings of the deed, and mortgage in the sale transaction between the plaintiff and the defendant Charles E. Crook, defendant bank’s mortgage became a first mortgage lien on the premises; third, that the plaintiff was not the owner of the note and mortgage sued upon by him nor while the said foreclosure proceedings were had. At the hearing of the said motion the court received evidence, oral and documentary, in support thereof, and thereafter denied the same. The defendant bank appeals.

There is absolutely no merit in the appeal. From the ree-*288ord it appeals that the defendant bank not only knew of, hut encouraged, the plaintiff in the foreclosure proceedings had before the court right up to and including the sale of the property. Moreover, the defendant hank had no meritorious defense, legal or equitable, under the facts disclosed by the record: The bank took a second mortgage, and, because of the mistake of the scrivener in wrongly dating the deed, contends that the plaintiff’s mortgage was invalid. Assuming that there was no mistake made, and that it was the actual intention of the parties to date the deed as it was dated, the legal effect would be that of giving a mortgage on after-acquired property. Then, as to the claim made by the defendant bank that the plaintiff was not the owner of the mortgage foreclosed by him, the evidence shows beyond dispute that plaintiff was the actual owner; that he had merely pledged the mortgage and the debt secured thereby to his banker as security for a loan; that he had a perfect right to do. If his banker permitted him to bring suit to foreclose, that was a matter between the plaintiff and the banker, and with which the defendant bank should not be concerned.

Our.'trial courts are usually very liberal in vacating and setting aside default judgments entered against a defaulting party by reason of mistake, inadvertence, or excusable neglect, or in case where there has been fraud or deceit practiced. Under our practice it is generally regarded as an abuse of discretion for a trial court not to vacate and set aside á default judgment when there is any reasonable ground for doing so, and timely application is made. But in this particular instance it is our judgment that no reasonable grounds existed, and that it would have been error for the court to have done so.

Judgment is affirmed, with costs.

WEBER, GIDEON, THURMAN, and FRICK, JJ., concur.