67 P. 118 | Utah | 1901
after stating the facts, delivered the opinion of the court.
The appellant claims that the court erred in its findings that Mr. Beck, for a valuable consideration, sold and assigned all his interest in the 51,000 shares of the Bullion-Beck stock to Mr. Cunningham, and that the sale was not made to defraud or delay Beck’s creditors, nor upon any secret trust or agreement; that the stock should be held by Cunningham as security for the sum paid by him; and for the reason that the evidence is insufficient to justify the findings, etc.
1. An examination of Mr. Beck’s testimony shows that he had no actual promise from Mr. Cunningham that the latter would make him a loan on the stock, and accept it as a security for the $24,500 advanced upon it, allowing Beck the privilege of redeeming it. Whatever understanding Mr. Beck may have had to the effect is not clearly derived from any statement
2.. Counsel for the respective parties discuss at length the rule obtaining here as to the effect of conflicting or evenly-balanced testimony. There is some conflict in the testimony in this case, but even if the evidence were more evenly balanced the case would still come under the rule, frequently announced, that, in cases where the trial court saw the
3. The purpose of this action is to set .aside and annul a written instrument signed by Mr. Beck. To do this, the entire burden is thrown upon the appellant to overcome, by clear, unequivocal, convincing testimony, the strong presumption
In conclusion, we find no evidence of fraud or of a secret trust, as charged in the complaint. Many other questions are raised in the record, on which we find no reversible error.
The decree and findings of the district court are affirmed, with costs.