The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-02-05

| banded down two opinions, both revers-
ing the judgments of the trial courts
In the case of the state of Utah VS.
Anna Marks, appellant, the opinion wa:
written by Justice Miner. and concurreC
in by Chief Justice Zane and Justice
Bartch, in that of the New J =. and
Loan and Trust company, appel ut, VS.
Solomon C. Stephens ct al, the Cpnior
was written by Justice Bartch and was
concurred in by Chief Justice Zane
and Justice Miner
In the Marks case, the defendant was
found guilty of an assault with a
deadly weapon, upon one Patrick Shea,
, in a dispute as to the right of posses
sion of certain property at Eureka, and
she was sentenced to pay q fine OF
500, or go to jail for $40 days.
At the trial, after the prosecution
rested, the defendant was called and
testified in her own behalf, but no Wit
nesses were called to sustain her repu-
tation for truth, honesty and integrity
in the first instance. The prosecution
then called two witnesses, who testified
that they had known the defendant for
several years. Thereupon the prosecu-
ton asked the witness: DO you Know
her reputation in that community Tor
truth, honesty and integrity? me
question was objected to and the obJec-
ton overruled, and the witnesses said
her reputation was bad.
The supreme court held that the form
of the question was improper, and that
in imDeaching the credibility of a wit
ness. the inquiry must be confined to
the general reputation of the party in
the locality referred to. The word gen.
eral should never be omitted; also when
the general reputation of person ac-
cused OF a crime is attacked, the date
of the inquiry should be limited to a
period not later than the date of the
arrest.
The opinion then sets out the form of
the question on the impeachment of a
witness, after the person under exami-
nation has been shown to have knowl-
edge of the general character OF the
person sought to be impeached, which
is:
DO you know what the general rep
utation of John Doe is for truth and
veracity in the neighborhood where he
resides?" If the question is answered
in the affirmative, the next question
will be: What is that reputation, good
or bad?" If the answer is bad, the fur
Their question may be put, From that
reputation, would you believe him on
oath. in a matter where he is person.
ally interested?'
When a defendant, says the court,
in q. criminal case testifies in his own
behalf he places his general character
for truth and veracity in issue, but not
his character for honesty and integ-
rity, and his character in these respects
cannot be inquired into, unless he vol
places them in issue.
The opinion also held that the trial
judge erred in instructing the jury that
they should draw no unfavorable infer |
h. fa
that she had offered no proof as TO her
general good character.
On those errors the judgment was re-
versed.
TRUST COMPANY VS.. STEPHENS.
In the case of the New England Loan /
e Trust company, appellant VS.. Solo /
mon c. Stephens ct al, the suit was /
brought to foreclose a trust deed, and |
The trial court found that the plaintiff
had received by way of payment, either .
n money, new mortgages or trust /
leeds, the amount of the original trust (
Iced with interest; that there was
nothing due the plaintiff, and that the [
portion of the property sought TO be
'oreclosed upon was freed from the
len of the trust deed, and decree was
entered in favor of the defendants and
he action dismissed.
The case came from Ogden, and the
'ecord shows that the defendants, Solo
non c.. Stephens ct al, executed to the
New England Loan & Trust company
our promissory notes aggregating $751;
100, securing the same by trust deed on
s separate parcels of real estate, re-
ease being provided for in each parcel.
Except parcels l and 6. Parcel No. II
vas later conveyed to L. r. Rogers,
ubject to an Indebtedness of $1,000,
ecured by the deed of trust. Later the Z.
riginal debtors effected a reOrSaniza-
ion of the indebtedness, the company
Igreeing to look to parcel No. u as Sc
urity for the $1,000. Suit was later
,rought to fOreclose the whole tract,
ne court below finding that there was
othing due the loan company on par
ell No. u, as it had been already freed
rom the original trust deed.
The loan company contended that
ract No. II was conveyed by the other
arties to Rogers with the understand
ng that there was 81 900 mortgage on
t. which would have to be satisfied.
Rogers, on the other hand, insisted
hat the company had received suffi-
lent payment to fully satisfy the obli-
alton under the original trust deed.
1t was also contended that if the lien
the trust deed was not discharged
i the reorganization of the loan, the
octrine of inverse order of alterations
pplleS, and that, therefore. that tract
annot. in the first instance, be sold
nder foreclosure to satisfy any por-
ion of the mortgage debt, and that {
ince the parcels subsequently sold
rere released from the mortgage lien,
o recovery can be had in this case
commenting on this point, the court
avs:
THE doctrine here invoked is to the
feet that when a mortgagor sells
premises in distinct parcels.
t different times, the parcel last sold ;
lust, upon suit brought to foreclose,
rst be applied in satisfaction of the
lortgage. and if that be not sufficient, !
len the one sold next in point of time,
nd so on, reversing in which the prop
'ty was conveyed. Neither the rule
or the grounds on which it rests, how
yer. have any application to case
Ike the one at bar. To enforce. under
lie circumstances of this case, the rule
pom which the respondent insists, {
ould be to unjustly impair the rights
the mortgage. I
The opinion says, in conclusions: I
We are of the opinion that, under the /
Icts and circumstances of this case.
lie court was not warranted in finding
Id decreeing that the appellant had y
zen paid the full amount of the debt r
cured by the trust deed: nor in r
lding that the lien, as to the tract of J
nd in controversy, was discharged; +
II in dismiSsing the action :
The judgment was, therefore, re- Z
srsed, and the case remanded. ?
SHERIFF LEWIS WINS. {