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Show PAGE THE DAILY FOUR COURT DECISIONS (Continued from Page 3) SUPREME Kemp, or a later in time, but priui ret, or tied trust deed (mortgage) asserted the defendant Zionr First National Bank. The trial was to the court with a jury. The pivotal issue as it i3 presented by the parties in this appeal centers upon the jury's answers to two questions as to whether the defendant Bank had notice that the plaintiffs Kemp had an interest in the property when the Bank advanced money thereon and took its mortgage: by THURSDAY, JUNE 11, RECORD 1970 ing that the financing bank was going to rely on it; where the hank had neither actual nor constructive knowledge that the vendor retained an interest in the property, and the latter, who had failed to record their own mortgage, in full knowledge of the facts, went to the bank and in effect approved the transaction by accepting their share of the proceeds therefrom, but without disclosing that they retained an interest. Upon the basis of our discussion herein we can see no persuasive reason to disagree with the view taken by the trial court that the prior recorded mortgage of the defendant Zions First National Bank should take precedence over the plaintiffs' mortgage. Affirmed. Costs -- First National Do you find that Zions 1. notice? Bank actually had later-record- ed to defendant (respondent). A. No. 2. Do you find that the Bank . . . should have been aware of such an unpaid balance? A. Yes. WE CONCUR: E. R. Callister, the basis of those answers, and his own analysis of the evidence and the law, the trial judge ruled that the defendant Bank's prior recorded trust deed (mortgage) took precedence. On Jr., Justice R. L. Tuckett, Justice Plaintiff, appeal, contending that under the evidence, and the findings of the jury, the trial court was obliged to rule as a matter of law that defendant Bank had sufficient notice of plaintiffs' interest in the property that their purchase money mortgage must he deemed to take precedence over the de - F. Henri Henriod, Justice is to be borne in mind that under the rule, in a suit in equity the' findings of the jury are only advisory to the court. As was A. H. Ellett, Justice iendant !s trust Heed. It long-establish- ed slated in .Smith v. Riihardsun: Utah 424; see also Swanson v. Sims, 51 Utah 485, 170 P. 774. 2. See Wiese v. Wiese, ; also Nokes v. Utah 2d P. 2d , Cont. Min. & Mill. Co., 6 Utah 2d 177, 308 P. 2d 954. 1. he power to disregard or modify the findings of a jury a in chancery cause is inherent in the court, the object of the verdict being not to decide the case, but to instruct or advise the conscienie of the chancellor. . . . I 2 3. 4 Am. L. oi Prop. 221 222. 4. Ibid. 5. See Osborne, Mortgages, Sec. 213, p. 56 -- Accordingly, in reviewing such a proceeding we do not follow the usual rule as to the findings of a jury, but give deference to the prerogative of the trial court to make the findings and judgment; and we indulge them with the same presumptions of verity that wc accord them in other equitable proceedings; and we survey the record in that light. We mint facts relat.ng to pir'ies no longer involved in this proceeding and recite only those pertinent to the issue between the plaintiffs Kemp and Zions First National Hank. In c onnection with a three-cornertransfer of properties, the plaintiffs Kemp in the fall of 1964 sold and conveyed by a warranty deed to a Ur. Joseph IV. Noble and his wife a home and chicken farm in Draper, Utah. To ecire a r maining balance on the purchase price, they took a mortgage hark from the Nobles, but did not record it at that time. The warranty deed was executed and delivered on November 19, 1964. The next day, November 2C, the Nobles signed up for a loan of $35,000 irom the defendant Zions Bank tor which they gave the Bank a trust deed (mortgage) upon which the Bank herein relies and which was promptly recorded. The following the plaint, its Kemp went to the Bank and discussed day, November 21, the loan and the allocation of the proceeds thereof, including the paying off of a mortgage to Prudential I ederal Savings it Loan, the charges for surveying, attorneys' fees, taxes and other expenses and received for themselves the balance as a down payment on their property. 1 P. The Nobles lateT defaulted in their payments on the loan to defendant Zions Bank, and the Litter instituted proceedings to foreclose its trust deed. Plaintiffs then bi might this sum in equity claiming that their purchase money mortgage should take priority owr the trust deed (mortgage) held by the defendant ions Dank. Certain findings of tin- trial court, which find support in the evidence, have a sigmluant bearing on the issue here in dispute: i 465 Utah 2d 6. Cf. the cases of Peay v. B & N Inc. , et al. , for cases on 464 2d 2d P. 377, , Utah p. 2d 1018; Pollei v. Burger, at conclusions somewhat different fact situations but where this court arrived consistent with our conclusion herein. Jr lt, ent.tled First National Bank Zions . . . document "Closing Statement", that there-atte- r on il.e 21sl Hay ef Novemher, 164, the said l.aVell Kenm ,.nd Thelma Alie K mp, his wife, called at the office ot ions First NM.onil Bank . . ., there reviewed and approved said ClnriiiL St air on nt . . ., and received the net proceeds . . . tri tl.e Wa i ran Meed issued m favor of Noblis; that at no lime prior lo no at r!n 'Min- the said Closing Statement was in any mannr-executed and .mpioved 'id la Kemps ver . . ., that any diet lose in s.iid ion- First National Bank additional snir. remauii d mu and unpaid as consideration for the aforesaid Warrat.ty Peed. prepared a ! i be s.nc . . Kemp tl.e I s - rioiriir'.; i Mi.i ty-- i ci on i!n- nt i , t rt 1 ga i , tVi- - p. Kt ivmnr ' ativo rncrill .it d by the of thi' plaintilis: lior'gagc here), executed rule that a in or in pm suanc r of an agr c cm nt, as , Pui ui a prriereni e over any other lien attach t !: i u:i,-MukIkhi (Dr. Noble's mortgage to Zion): ing a nd ui '.i-- , nmri mum mu. illy, that, Where the contest is between a pur i l.iiM' n .cm. v :i :m i i , ge i o i tin m pt t son w ho a civ a nc e part of the pur chase : t ion pi e p..nl:ase money mor tg.i ge to the vendor Kertips for t he !.a l.i i - g i vi n t i e, pr eft rein i even if bn ha d not u v of the lor nn r . I'i'i: in ipilt oi '!. Ui u 'mg generalities, which seem to give succor to plain-- t i s i i'itc inaMcm of tl.(- authorities and the principles involved :vi, .f, will show tl.e a 'imHv depends upon the circumstances of the given ' : ,. i e. t of t a su, i i e! ii n s , .i t ret or rling at t . ronur. .Hivi'Vnin t t.'f l,iii'!, u , or d, na i : v tuio i, u ot 'he i iti i nt 'mpi m i i r : - i i 1 -- I ! I i i ; . ! f i . FILED May 28. 1970 Nephi Processing Plant. Inc. , ei al. Defendants and Appellants. . HENRIOD, Jus tice: Appeal from a judgment fur amounts due on three promisscry notes. Affirmed, with costs to Hein. After inswer filed in November, 1967, there followed a series of interrogatories and other pleadings, and defendants, in September. 1968, presented a motion for leave to file an amended answer. This motion was not specific as to any possible defenses to the action except that defendants had "gained additional information . . . which would indicate . . that the issues . . can be greatly clarified and the defense . . . can more properly he set forth" if the amended answer were allowed. Time went by, no one called up the motion fcr. hearing, the record does not reveal whether or not the motion appeared on any law and motion calendar under the local rules or otherwise, and the case was set for trial for a date certain that was four months after such motion was filed. At the trial, defendants asked to file an amended answer and he request was denied. Even though the trial court denied such request, defendants filed the amended answer anyway, the clerk for some unknown reason accepting it for filing. would seem to be incumbent on a party to pursue his own requests v uch as this by notice of hearing thereon, motion for continuance lor of ihc trial date, or the like. - which was not done here. Under the circumstances of this case, the trial court did not err in refusing to permit the ainor.'l"'1 answer presented for the first time at the trial at which all parlies Defendants, besides filing the unpermitted amended answer, also apj rind lib'ri ,i moi 'on for summary judgment. This latter motion obviously violated Rule 56 U'ah Rules of Civil Procedure. Our recent case of Summer hays v. No. Ii 559, , Utah 2d P.Zd Holm, (Aprl 20, 1970), is directly in point and is dispositive here. use Since there is nothing in the record showing any specific pleading of a defense except that claimed in the answer filed, as to which defendants proffered no evidence, and called no witnesses, it follows that the trial court k ted properly as to pleading and proof, and its judgment should be, and is, .ii tinned. WF, - i a a pi m . I i V. i .i s. . o.. ? wi.i' i vill.or y w lm h a jiprove s giving r tacts as found hy the ti M i 1 1 , , CONCUR: ; ' m d i - ! L, M. Cummings, Clerk , m f,thdav of February, I960. it, ,pinr."i;s mps' i : - No. i 1822 v. re I ct Hein's Turkey Hatcheries, Inc., Plaint iff and Respondent, h-i- 1 : -- i r irM National Bank had no actual ot con- t: i t x . sit :n of any ui:p;i id ba lance due the or any asserted Io n or claim by the Kemps against t proper tu s '..t'1 il the rei ordation of the Mortgage tavor of a id '.e imps which, was accomplished by the m- ooOoo Defendants say hat under the local rules, the motion for permission to file an amended answer normally would have come up automatically on the r.exr law tnd motion calendar. There is nothing in the record to indicate that the motion did rr did not appear on any such calendar or that anyone v. then to argue it if it did. The record reflects nothing filed m support if lhe motion by way of specific facts or proffer thereof. It reilects nothing to indicate any effort on the part of defendants to notice up the motion at any intervened between the date it Mm. prior to trial, although four months was filed and date of '.rial. r. ... IN THE SUPREME COURT OF THE STATE OF UTAH - At the time the Kemp? executed and delivered their Warranty Peed to Nobles, they knew that said Deed would be used by the Nollies for the purpose of securing the Mortgage Loan financing from .ions First National Bank, and that said Bank would require a first mortgage loan upon the properties. On November 20, Jackson v. Reid, 30 Kan. 10, 308 (1883). ed l4, 1; 1. I i .i.iMi - i preference to J Ali .in It L. I C ri c kett , Chief Justice E. R. Callister, Jr., ourt set forth given an nriventrn ted wari.mty deed, know uTH.irJuHTicT A.' H. Ellen, Justice Justice |