Mountain Home maverick. [volume] (Mountain Home, Idaho) 1906-1911, 1910-03-10
HEWITT MORTGAGE
HELD VALID
DECISION FROM THE DISTRICT
COURT GIVEN OUT DURING
THE PAST WEEK.
Case Considerably Affecting the Great
Western Beet Sugar Company Sys-
TEN and This Vicinity Passes
Through First Court.

One of the most important cases
having to do with our present condi-
tion as regards the irrigation system
has been passed upon by Judge
Walters of the District Court,
and his conclusions given to parties
concerned and the public generally.
Judge Walters is exhaustive in his
consideration of the facts as pre-
sented to him, and it seems that his
conclusions are clear and decidedly
logical
The decision by the Court in full
is as follows:
/ herewith submit to counsel con-
cerned my conclusions in writing
in the above entitled case, and have
attempted to determine the various
questions for decision in the order
they we're presented at the trial:
THE HEWITT MORTGAGE.
Plaitniff alleges that he holds a
mortgage against the Great Western
Beet Sugar Company system upon
which there is due, of principal and
interest, the sum of $1OO,5OO.OO;
that said mortgage was executed by
the defendant corporation January 80,
1907, to secure various loans of
meney which had been made by plain
tiff to said defendant corporation on
two separate occasions prior to this
last date, to-wit: A loan of $685.
10000, under date of August /,
1906, and a loan Of $2O,OOO.OO, un-
der date of November 2, 1906, and
also said mortgage was to secure an
additional loan made on the date of
the execution of the mortgage, to-wit:
January 80. 1907, for the SUN of
$25,OOO.O0 said mortgage thus being
in the total sum of $50, 100000 and
being evidenced by a series of several
notes of various dates, as above noted
1t is not urged with earnestness,
either in the evidence or by the briefs
of counsel for defendant and cross
cOmplainants that the defendant cor
poratiOn did not receive the consid-
Grafton mentioned in said mortgage.
that is, a failure or lack of considera-
tiOn has not been urged by those who
attack this mortgage as here in
volved, but counsel for the many de-
PENDANTS and cross-complainants very
earnestly urge and have united upon
two features of attack and to which
the most of the evidence in this case
was directed and to a discussion of
which the most of the briefs sub
mitted by cOunesl have been directed.
1t is urged that:
Cd Said mortgage has been paid
by the issuance, at the instance of
and for the benefit of plaintiff, of a
number of paid-up water rights by
the defendant corporation, the Great
Western Beet Sugar Company, the
mortgagor, to a number of the
friends and relatives of the plaintiff,
Henry Hewitt the total agreed pur-
chase price of the water rights being
in the approximate sum of $780,
10000.
(2) That the execution of said
mortgage and the indebtedness which
the same secures was not authorized
or ratified by an exercise of the
proper corporate power, that is, that
the Board of Directors of said cor
poration did not authorize nor ratify
said mortgage.
/ have directed my attention to a
solution of these affirmative defenses
in the order in which they are above
set down and with reference to the
first-that this mortgage here in
question has been paid by the issu-
ance of the water right deeds
shall hold is not well taken and not
established by the evidence.
determination of this question
is purely that of the careful weigh
ing of the evidence, as it is purely a
question of fact, and at the outset
/ must remind counsel that this, be-
ing an affirmative defense, the law
enjoins the Court to be satisfied in
his mind by fair preponderance OF
the evidence, that such Affirmative
defense is true and well taken, be-
fore he should find. Counsel. with
out exception, have no doubt, will
agree with me that under the law
the Court would not be justified in
finding an Affirmative defense true
upon surmise or suspicion or upon
evolving an apparent theory, show
ing such defense we'll taken but the
evidence to establish it should, in
the Courts mind, prepOnderate and
seem to be the more weighty and the
the more worthy of credence.
Upon this question there has been
submitted to the Court the testi-
mony of but three men as to what
the agreement was between plaintiff
? and the defendant corporation at the
time said water rights were issued
viz: Mr.. Hewitt, the plaintiff: Mr
Garrett, the executive head of said
defendant corporation, and Mr.. Sey
mour Bell. and also rather vOlumin
. more worthy of credence.
Mr.. Hewitt testifies in substance
that at about the time Of the execu
tion of the mortgage in question. he
agreed with Garrett that he would
send certain relatives and friends o
his to Elmore County to file upoI