The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1891-05-17
WAS NOTHING IN IT
The Bic Sensation in Court
Knocked into Smithereens.
THE FACTS IN THE BRAIN CASE
They Fully Exonerate Mr.. Schettler, Who
Acted Honorably Throughout the Whole
Transaction-Council Cases Set.

In the Third district court yesterday
morning, Judge Zane announced his deci-
sion in the case of Annie Peters Brain and
Mary S. Brain, which was submitted on
Friday. The plaintiffs alleged that on May
go, 1890, Edward Brain died in this city
lntestate, that shortly before he was taken
Ill, he entered into negotiations with B. H
Schettler, of lions Savings bank, to
mortgage his brick yard property for &, 600
and at the time he was taken sick the nego-
lions had not been concluded; that on the
night of May %, the day preceding the
death of Mr. Brain, he sent for Mr.
Schettler to bring up the mortgage for
acknowledgment and execution; that Mr.
Schettler and notary did appear with a
paper, which both the deceased and Annie
Peters Brain, his wife, supposed to
be the mortgage referred to; that
without explanation of it's contents,
both signed the paper, and short time
afterwards Annie Peters Brain learned
that the instrument signed by the deceased
was not a mortgage, but deed conveying
the premises to Mary B. Brain, another
wife OF the deceased. The plaintiffs there
lore claimed that the defendant, with Mr.
Schettler and others, conspiring TO defraud
and cheat the plaintiffs, fraudulently and
falsely presented the deed instead of the
mortgage and fraudulently obtained the
signatures thereto. They therefore asked
that the deed be decreed to be fraudulent
and void and that it be set aside and annul-
led and the record thereof be cancelled.
The defense combatted all of these allega-
tions.
Judge Zane, after stating the issues in
volved, said that the evidence showed that
the deceased married the defendant thirty
SIX years ago, and some eight years ago he
married Annie Peters Brain. After that
Inst marriage he obtained a divorce from
the defendant and remarked Annie Peters
Brain, making her his legal wife. 1t
further appeared that the deceased and the
defendant lived together ON the property
IN controversy until Mr.. Brain married the
plaintiff. He had given the defendant
NE lease on the property, and Joseph E.
Taylor, one Of the witnesses, endeavored
to persuade the deceased to give her a deed
to the place, and some two weeks before
his death, MIR. Brain stated that he intended
to do So just before he was taken sick he
seemed to have changed his mind, as he
told Mr.. Maxwell, his foreman, that he
didn't think he would do so. Annie
Peters Brain testified that when the deed
was executed Mr.. Brain had a high fever
and Was somewhat fiighty. From ether
evidence it appeared that his mind was
clear shortly before the deed was signed
and Mr.. Schiller and others stated that
when the deceased signed the deed g was
rational. Annie Peters Brain stated that
she thought the paper was mortgage and
such was her husbands supposition. The
deed was mentioned at the time. The cues.
ton was whether there was sufficient
evidence to warrant the court in finding
that the deed was procured By fraud, and
whether the deceased was misled and de-
ceived and owing to his mental condition
did the evidence warrant the in Inference that
he did not know what he was doing. The
acknowledgment of an instrument was
evidence of its execution and it would take
clear proof to overthrow that pre-
sumption. The testimony was very con.
ficting and the court was inclined
to think that the presumption was not over
thrown. The validity of the instrument
was not questioned on the ground of want
OF consideration. The deceased had lived
with the defendant as his wife for over
thirty years and had raised family of chill
dren by her, and it would seem that the old
lady ought to have little something. Under
all the circumstances, the court was dis
posed to give Judgment for the defendant.
In the case of Thomas Thomas VS.. Will
lam Lloyd, involving the title to lot on
Sixth Vest street, Judgment was rendered
for the defendant.