Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-03-10


bitches, if necessary. so that with
their money we can complete the
lower end of these bitches. etc"
Under date of July 22. 1908. (de-
PENDANT Smiths Exhibit 49, as fol-
lows:
IF we use 1000 as agreed to
extend idtches to our boys and
friends lands, think we can get
them all to pay part on their
water-help your men out"
Under date of July %, 1908, (de-
PENDANT Smiths Exhibit 2O) as fol-
lows:
Il told you and Mr.. Yerkes
the 1000 for bitches to our boys
places we would advance and
take it out of water rights"
Under date of August 4, 1908, (de-
PENDANT Smiths Exhibit 21) as fol-
lows:
Il want the money l advanced.
and If you will furnish water
as agreed to my boys-the
Kimberlys will apply on the
mortgage, but they want it now,
the land is ready. l am surely
entitled to either water for the
boys which you trusted them
for. They are willing and able
to pay, and what they fall
short on, / will help them. They
were not to pay. however, until
you produce on their land two
acre feet for the whole 800
acres"
This series of letters show that
Mr.. Hewitt was constantly urging
Garrett to furnish water upon these
lands, and did so in repeated letters
and as early as December 8, 1907,
Exhibit y supra, and reminds Gar
rett that there can be no credit upon
the mortgage until the lands are pat
ented and the letters of March rs
and April "a, 1908, are of the same
tenor, and these letters were written
at a time long prior to any claim
on the part of Mr. Garrett that the
water rights were issued as fully
paid and were to be credited upon
the mortage, as far as any testimony
in this case shows. In fact, all of
said letters above mentioned, were
written before the record in this case
shows that Mr.. Garrett claimed the
mortgage was cancelled, or that Mr..
Hewitt knew he so claimed, by rea-
son Oh lutSt Wdltl Qtfu0t NAl'i
claim on the part of Garrett is first
presented in this case by an affidavit
made the 4th day of August, 1908,
and presented to this Court in the
application for receiver. In fact, the
testimony of Mr.. Garrett lends but
little comfort or assistance to the
Court in this search for what is most
likely the truth.
August 4. 1908, he says the mort
gage is fully paid by reason Of the
issuance of the water rights, while
twenty days later. or on the oath
of August, 1908, with his attorney,
he appears in court and says that
there are no legal offsets or counter
claims to this mortgage, and that it
is due and unpaid. While again in
his deposition. taken October ,, 1909,
he reverts in his statement to his
former position that the water deeds
were issued as against the mortgage
and were to be applied as payment
on or for the mortgage. While again
in his Correspondence to Mr. Hewitt,
during the year 1908, and hereinbs-
fore quoted he lends his assertion
and states that the mortgage is
valid. unpaid and a just obligation.
But counsel for defendants and
cross-complainants may say that in
arriving at this conclusion. have
not sufficiently weighed and have
been unmindful of the fact that
many or most perhaps, all of these
person who secured the water deeds
in question, appeared before the L.
S. Commissioner and swOre that
these water rights were fully paid.
and also that ! have overlooked an
estimation of the fact that the evil
dence shows that Mr. hewitt con-
trolled the possession of al lof them
which latter fact woul dindicate that
they were considered as his property
AS to the point first mentiond,
find the record absolutely silent that
Mr.. Hewitt authorized any of said
entrymen to testify that these were
paid-up water rights. His testimony
is that he did not do so, and ! can
find no proof here of any character
or kind that Mr. Hewitt attempted
to justify the entrymen in so swear
ing; to protect them in so doing OF
to authorize or direct them to sc
swear and on the contrary, prior tC
the times of making such proof by
his letters, frequently reminds Gar
rett that under their agreement, the
purchase price of the water rights
was not to be credited upon the
mortgage Indebtedness until the title
to the land was sound, valid ant
water was delivered.
If 1 could find anything in tho
testimony. oral or documentary
wherein it appeared that Mr.. Hewitt
had connived at or advised these
entrymen to so swear. to my mint
it would then lend great weight tC
f this defense made by defendants ant
/ noncompliance The fact o.
these entrymen so testifying befor,
I the u. s. Commissioner in the man
ner as proven, must first be brough
home to the plaintiff by his directing
it or his acquiescing in IT, before h'
should be bound or before he coul,
be bound in law. as / must not b.
unmindful. as ! said i'm the beginning
that the burden of the proof in thi
feature of the case is upon the dc
T PENDANTS and Observation-Disclosures an,