Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1898-02-10
IHE SILVER KING WINS
Supreme Cour, Decision in The Case Of S. C..
Ewing VS. David Keith.
THE ELDoRADo PROPERTY INVOLVED.


The Supreme Court delivered an opin-
ion today in the case OF SAM c.
Ewing and Leonora Ewing. appetite s.
against David Keith ana the silver
King mining company, affirming the
decree OF the lower court.
A statement OF the case shows that
in July. 1893, Samuel c. Ewirg assigned
TO George Cullins. In trust for all his
creditors. all of his property. among
which was the Eldorado mining claim,
Park city. In May, 1894. Ewing hay
ing In the meantime settled with all Of
his unpreferrei creditors. obtained the
consent OF Culiins and the preferred
cercditors to execute a quit claim to
the Eldorado claim to David Keith. the
consideration being $1,000. Keith, at
the time of the assignment was one Of
the preferred creditors and held Ew-
ing's note for $1,000. Upon the assign.
ment of the Eldorado TO Keith. he in
dorsed the note as fully paid and turned
1t over to Cullins & Ewing. At that
time Ewing and his wife Joined in =
decd. as grantors conveying to Keith
all the right and interest in the I5ldor
ado claim. the consideration named
being $1,000.
In December, 1895. Keith aud his wife
conveyed the Eldorado claim to the
Silver King Mining company. Keith in
the meantime, however. obtained .itla
10 the remaining 2-15ths OF the proper
~. Keith at this time was president
and director of the Silver King com
pany.
In October. 1896, action was com
nj hty Ntptr, IL IA lie xpifa Dol
the deed set aside and declared to be "A
mortgage only for the $1,000 note.
Keith claimed 1t was deed absolute
and Culllns said he also thought
II to be such.
The case wes tried before Judg.
Hiles last July who adjudged and de-
creed the Silver King Mining company
the owner and lawful possessor OF the
whole OF the Eldorado lode mining
claim. when an appeal was taken.
The question left for the Supreme
court to determine was whether the
deed to Keith was given and intended
as security for the $1,000 or an abso-
lutte conveyance.
The court finds that the entire bur-
den Of proof was thrown upon Ewing
TO establish his claim. and when the
testimony of Keith and Cullins are
taken into consideration. II finds itself
,irrosistably led to the conclusion that
the evidence introduced by Ewing fell
far short Of establishing the conviction
that the deed was only intended as n
mortgage. The law" says Justice
Miner who delivered the opinion.
never implies trust, and the court
never presumes trust except in cases
OF necessity" Continuing, the court
says:
"As q general rule when 1t IL pro-
posed to set aside, nnnul or correct n
written instrument for fraud or mis-
take in its execution, the burden rests
upon the moving party To ovecome the
strong presumption arising from the
terms of the written instrument. by
clear. unequivocal, convincing testi-
mony. and Il there Is n failure to over
come this presumption by testimony
clear, plain and convincing, beyond any
reasonable controversy. the written In
strument will be held to express the
intention of the parties
"The deed in question speaks as an
absolute conveyance. When II was de-
llvered the note was surrendered to the
assignee. and marked paid over the
signature of Mr.. Keith endorsed there
on
The case OF Chambers VS. Emery IL
Utah. 374 Is quoted, which. among
other things, says: 'If 1t were once
established that the effect of the terms
of Il written instrument could be avoid
ed by n bare preponderanoe Of parol
evidence. the gates to perjury would
soon he wide open and no person
could longer rest in security OF his IT,
tie to property. however solemn might
be the instrumen. on which 1t Is
founded"
At the trial II was offered to prove