134 P. 573 | Utah | 1913
Appellant brought this action in equity to cancel a certain release of a real estate mortgage and to vacate the record thereof; to cancel a certain power of attorney; to reinstate-the mortgage released by said pretended release; and to recover $377 and accrued interest, including an attorney’s fee, from the respondents. A trial in the lower court resulted in finding and judgment in favor of the respondent Martin V. Kohwer and a dismissal of the action as against George E. Burrell, from which judgment appellant prosecutes this appeal.
In view of the conclusions reached, we need not set forth! in detail the facts, which are somewhat complicated. The undisputed facts-, so far as material to this decision, are in substance as follows:
In luly, 1902, the appellant and her husband sold to the respondent Martin V. Kohwer a certain farm in Box Elder county, Utah, together with some live stock and other personal property, for the sum of $2320. Of that amount $1600 was evidenced by a promissory note, which was secured by a first mortgage on the real estate sold, and the remainder of the purchase price was evidenced by two $200 notes and one $320- note, all of which were otherwise secured. The note for $1600 did not mature until lanuary 1, 1913, and bore interest as the rate of seven per cent, per annum, payable annually. Certain payments were made from time to time on the smaller promissory notes aforesaid between the time they were given and October 5, 1905, at which time a
“Mil Martin Y. Bohwer — Dear Sir: Would you- like to take up that note and mortgage that my sister holds against you ? If so, write me at once. We will give you a discount large enough to make it worth your while. [Signed] Orson Burrell.”
Mr. Burrell immediately returned to bis home at Plano, Idaho, and there informed bis sister, tbe appellant, that be bad discounted tbe $1600 note for $800. She says in her testimony that her brother did so inform her, and that if she bad obtained tbe money from him she would have been satisfied, although tbe amount received was only one-half of tbe face of tbe note. After her brother bad informed her as aforesaid, she demanded tbe money from him, but be said that in view that she did not need it then be would like to keep and use it and would pay it to her whenever she needed or wanted it. After this she made repeated demands on her brother for tbe money but received none from him. Time thus ran along until a year bad elapsed, when appellant left her brother’s home in Idaho and came to Brigham City, Utah, where she became reconciled with her husband, from whom she then learned for tbe first time that tbe statements and representations that her brother bad made to her and on reliance of which she bad executed tbe power of attorney and release of tbe mortgage for tbe purpose of obtaining tbe money, from Mr. Bobwer were false. Tbe appellant then sued her brother in Idaho to recover from him tbe money be bad fraudulently obtained as aforesaid. While that action was pending, appellant went to see Mr. Bobwer to induce him to go to Idaho to testify in her behalf in said action with respect to the facts and circumstances under which he paid tbe money to her brother and the amount that was paid by him. Mr. Bohwer said he would do so, but before he went he said that, in view that there might be some question with respect to tbe sufficiency of tbe power of attorney or the release of mortgage, be would like to obtain a general release from
We have carefully read (and to some extent re-read) the whole of the evidence as the same is preserved in the bill of exceptions, and from a consideration thereof we are forced to the following conclusion, namely: That appellant was induced to execute and deliver the power of attorney and release of the mortgage by reason of the false and fraudulent representations of her brother George E. Burrell that her husband would attempt to get the money for the note and mortgage and then would deprive her thereof; that, she accordingly became very anxious to secure the money from Mr. Hohwer, and in order to have him pay it then, about 6% years before the note matured, she was willing to make a large discount; that Mr. Hohwer was also willing to get the note and release of the mortgage if he could get them at a; large discount; that, while Mr. Hohwer was aware that appellant and her husband were separated, yet he knew nothing of' and had neither part nor share in the acts, statements, or representations made by the Burrells or either of them to their sister in obtaining the power of attorney and release of mortgage from her, and he paid
The only claim, therefore, that Mr. Bohwer can malee, and which he does make, is that he was discharged from the $377 obligation by the general release which appellant executed and delivered to him as before stated. That release was, however, made and delivered at a time when there were no matters of difference pending between the appellant and Mr. Bohwer and was then a mere voluntary transaction evidencing nothing in particular. According to Mr. Boh-wer’s own statements to appellant, he was not seeking a release from her to cover the $377 claim, but what he had in mind was that there might be some defect or weakness in the release of the mortgage or the power of attorney appellant had given to the respondent George E. Burrell. There was no defect in the release of mortgage, but one may well doubt whether the power of attorney as it was drawn constituted any authority whatever to discount the $1600
The judgment is therefore reversed, and the findings of fact and conclusions of law, so far as they are in conflict with the views expressed herein, are vacated and set aside, and the district court of Box Elder County is hereby directed to make findings against the respondent Biohwer and in favor of appellant for said sum of $377 and legal interest as stated in the foregoing opinion, and also for the sum of fifty dollars as an attorney’s fee, and to enter judgment against said Rohwer for said several sums of money, and to affirm the judgment in his favor with regard to the acts of -fraud alleged against him; further, to enter judgment by default against the respondent George E. Burrell in accordance with the prayer of the complaint without making special findings as against him. Appellant to recover costs of this appeal and costs in the lower court.