159 P. 534 | Utah | 1916
On and prior to the 16th day of December, 1912, the plaintiff and the defendant, W. R. Dennis, were partners engaged in raising live stock in Wasatch County, Utah, and were doing business under the firm name of Wherritt & Dennis. In addition to the live stock and other personal property owned by the firm it also-owned a ranch consisting of something over 500 acres, wMch was used by the firm in connection with its business aforesaid and which is specifically described in the complaint. On the date aforesaid the partners entered into an agreement in writing whereby it was agreed that the partnership should be dissolved, and the defendant Dennis agreed to and did purchase Mr. Wherritt’s interest in the partnersMp property including the ranch aforesaid. As a part of the transaction the plaintiff agreed to assume and pay the firm’s debts to the extent of $2,501.85, and the defendant Dennis assumed and agreed to pay any other indebt
“That for and in consideration of the sum of $7,750, as evidenced by one certain promissory note of even date herewith and the further agreements, conditions, and stipulations hereinafter named and mentioned, the party of the first part hereby sells and so soon as the aforesaid sum of money is paid in full according to the conditions of said note and a mortgage to he given to secure the payment of said note and all stipulations and conditions herein set forth, said note, mortgage and this agreement to be read, construed, and taken together, have been fully kept, performed, and complied with, to convey unto the said party of the second part by quit-claim deed all right, title, and interest now owned or that may hereafter be acquired, in, of, and to that certain real property situated in Center precinct, Wasatch county, state of Utah, familiarly known as the Thomas and Richardson ranch consisting of approximately 500 acres of ground (more ■or less) all of which is now inclosed in one piece and now owned by the said parties hereto as copartners doing business as Wherritt & Dennis.
‘ ‘ This agreement, together with other agreements are made for the purpose of closing up the said partnership heretofore and now existing known and doing business as said Wheritt & Dennis and for the purpose of making a division of the property and claims now existing against said copartnership equitably between the respective parties thereto; therefore, to that end the following named conditions and agreements are hereby stipulated, to wit:
*313 ‘ ‘ That said party of the second part agrees to pay said note on or before the 16th day of December, A. D. 1917, with interest at eight per cent, per annum from date until paid, interest payable annually, and if default shall be made in the payment of either the principal or any interest thereon then the party of the first part may, at his option, at any time thereafter, proceed to enforce the payment of the whole amount then due by declaring the same then and there due and payable, by foreclosure and sale of the mortgaged premises according to the tenor of said note and mortgage. * * *
“The party of the second part to have immediate possession of the aforesaid lands and premises together with all improvements thereon and appurtenances thereto belonging, of every kind and nature, including all water right heretofore used upon the same; to have all rents, profits, and issues of every kind and nature arising therefrom so long as this agreement is in force and effect. The party of the second part to pay all taxes and assessments levied against or becoming in any manner a lien thereon against the same, both upon the lands and improvements, and also the water stock or rights belonging thereto, and no expense or charges of any kind connected therewith shall be chargeable to the said party of the first part hereto, and if said party of the first pa,rt shall at any time be compelled to pay any such charges or assessments in order to protect any interest he may have in said lands, premises, or water rights, or if the said party of the second part shall default in the payment of any interest due on said note, the party of the first part may at any time thereafter declare this agreement null and void, and may also declare the whole of said note .then owing, both principal and interest, immediately due and payable and may at once proceed to collect the same, and all moneys then or thereafter paid either under this agreement or on account of this note shall then and there be forfeited to the party of the first part as rents, profits, and interests on account of sale, and as liquidated damages.
“That immediately upon the execution of this agreement, said note and mortgage and the assignment of the aforesaid account in the said Bank of Heber City as herein pro-*314 Tided', steps shall be taken to dissolve the aforesaid partnership of Wherritt & Dennis according to law, and neither party to said partnership shall thereafter hold himself out to the public, either directly or indirectly, as-a member of such partnership nor shall he thereafter, in any manner, obligate the members thereof, or the partnership as such.”
The note and mortgage referred to in the foregoing agreement were duly executed by W. R. Dennis and the defendant Lysle Dennis, his wife, but the mortgage covered only “an undivided one-half interest” of the real estate owned by the partnership, which was specifically described, however, in the mortgage. The note for $7,750 was made payable in five years from date. It provided for the payment of eight per cent, interest, payable semi-annually. It was also provided therein that in ease default in the payment of interest should be made the holder might declare the whole sum due and payable forthwith and might proceed to collect the same. The note also contained a stipulation for the payment of an attorney’s fee equal to ten per cent, of the amount due thereon.- The mortgage practically contained the same conditions and also contained a further provision that the mortgagor should pay all taxes and assessments against the mortgaged property, etc.
The plaintiff retained the title to his undivided interest in the ranch, and the defendant W. R. Dennis having made default in the payment of interest and taxes, the plaintiff brought this action to collect the whole amount due on said note and to foreclose the mortgage aforesaid.
All of the foregoing facts are alleged in plaintiff’s complaint and are supplemented with other facts, to the effect that it was intended by the parties to include the whole of the real estate described in said mortgage instead of only one undivided one-half interest therein, and that said one undivided one-half interest was inserted in said mortgage “by mutual mistake of the parties and of the scrivener” in drawing the same, and that it was intended by the parties that the plaintiff’s note was to be secured by a mortgage upon the whole interest of said real estate. The plaintiff therefore asked that the said mortgage be reformed so as to cover the whole interest, and that it be foreclosed as reformed.
The plaintiff filed a reply to W. R. Dennis’ answer in which the facts constituting the alleged affirmative defenses were, in.effect, denied. The defendant Lysle Dennis, as the wife of W. R. Dennis, also filed an answer in which she claimed a dower interest in the undivided one-half interest of her husband, and also sets up the homestead claim the same as her husband. No reply was filed to her answer.
In view that counsel for defendants vigorously insists, that in failing to reply to the wife’s'answer the plaintiff thereby admitted the averments contained therein, and for that reason she was entitled to judgment as prayed for, we shall dispose of that matter before proceeding .to consider the questions arising between the partners.
“Reformation of an instrument will not be granted upon a probability or a mere preponderance of evidence; there being a presumption that the instrument correctly evidences the agreement of the parties.”
Other cases and authorities in support of the text are cited in the course of the opinion. We are clearly of the opinion that the district court erred in decreeing a reformation of the mortgage for the reasons just stated.
While there are a number of other questions discussed by Dennis’ counsel, yet they all relate to and are controlled by
It is further ordered that each party pay one-half of the costs on this appeal, including all of the costs in preparing the case for this eourtC