Miller v. Livingston

Bartch, C. J. It appears from-the record that on June 16, 1898, the defendants Elizabeth Livingston, Sr., Archibald Livingston, John Livingston and Elizabeth Livingston, Jr., executed and delivered to the plaintiff a promissory note in the sum of $700, payable on or before two years after date thereof, and secured the same by mortgage upon certain real property situate in Salt Lake City. On August 31, 1898, plaintiff, claiming the note and mortgage to be still due and unpaid, brought this action to foreclose the mortgage and recover the amount due on the note, a certain sum alleged to have been paid by him for taxes assessed against the property and a certain sum as attorney’s fee. Thereafter the defendants filed an answer denying the indebtedness, and set up a counterclaim for a balance of $1,333.30, claimed by them to be [177] due on the pnrcbase price of certain real estate conveyed to plaintiff by Elizabeth Livingston, Sr., and Jane L. Winsness, the consideration mentioned in the deed being $4,000. In his answer to the counter-claim, the plaintiff denied any balance unpaid, and alleged that the true consideration was but $3,000, and that it was paid at the time of the purchase. At the trial, the main controversy between the parties was as to whether the consideration for the real estate conveyed to the plaintiff, was in fact $4,000 or $3,000. The court found the issues in favor of the plaintiff and entered a decree of foreclosure. Thereupon the defendants appealed to this court. The appellants contend that the court erred in sustaining respondent’s objection to the question asked the witness Elizabeth Livingston, Sr., in rebuttal, as follows: “What was the agreement as to the consideration for this property ? ” And also to the one asked another witness, as follows: “What was said in relation to the consideration?” These questions, it appears, related to a verbal agreement respecting the consideration for the property purchased by the respondent, claimed to have been made between the vendors and a person, who, it is contended, represented the vendee, at a time anterior to the execution and delivery of the deed, in the absence of the vendee. It was shown, however, by a clear preponderance of the evidence, and the court so found, that, at‘the very time of the making, execution and delivery of the deed, at the final consummation of the transaction, it was understood between all the parties that the real consideration was $3,-000, and that the $4,000 consideration was inserted in the instrument of conveyance simply “to make it appear better.” It was also shown that, at the same time, the $3,000 [178] -were paid in full by the vendee. Under the facts and circumstances disclosed by the record, the evidence thus sought to be introduced could not avail the appellants, and it was therefore properly excluded. It is true the testimony concerning what occurred between the parties, as to the consideration, at the time of the execution of the deed, is not all harmonious, but the . trial court, having had an opportunity to observe the manner and bearing of the’ witnesses while testifying and having decided in favor of the respondent, this court will not, in the absence of any apparent oversight or mistake disturb its findings or decree. While the recital of the consideration in a'deed is prima facie evidence of the amount thereof, still a different consideration or amount may be shown by extraneous evidence. Such recital is not conclusive of the fact. 6 Am. & Eng. Ency. Law, (2d Ed.) 778-780. We do not deem it important to discuss any other question presented. There appears to be no reversible error in the record. The judgment is affirmed, with costs. MINER, J. and Baskin, J. concur.