ey obtained out "of her own individual and separate estate;" that said real estate is "her own individual and separate property, and that the said defendant Joseph M. Stoutt never had any right, property, interest, or estate therein or any part thereof; that no part of the $4,000 which was loaned by plaintiff to said defendant Joseph M. Stoutt. . . was used by Adaline Stoutt, or by Joseph M. Stoutt, either in the purchase of the said property or in making improvements thereon; "that the respondents at the time of the transactions referred to were, and now are, husband and wife, and that J. M. Stoutt was not insolvent on August 5th, 1896, or on July 15th, 1896, at the time of the purchase of the real estate in question. Upon these findings the court made conclusions of law, and entered judgment in favor of respondents, dismissing the ac tion.

Appellant attacks the findings of the court upon the grounds that some are against the clear weight of, while others are not supported by, the evidence. Much space is devoted by both sides to the question of insolvency of J. M. Stoutt, and as to whether appellant was or was not a subsequent creditor. So long, however, as the finding that respondent Adaline Stoutt purchased the property in question with her own means and that the same is her separate individual property stands, the questions just referred to are immaterial. The finding is, however, strenuously assailed by counsel for appellant as not being supported by the evidence. We have carefully examined the evidence with regard to the claim of Adaline Stoutt that the property in question was purchased with her own money, and that at the time of the purchase it was purchased as, and has continued to be, her own separate and individual property, and we are all agreed that the finding of the court in this regard is amply supported by the evidence. It is impracticable to set forth the evidence for the purpose of showing what inferences may be deduced from it for and against the claims of appellant. Nor is this necessary, since we are all of one mind that the inferences cannot prevail as against the direct and positive statements of Mrs. Stoutt. While it is true that

some inferences might be permissible from some of the facts and circumstances pointing to a different conclusion, yet these inferences are all met by the direct statements of Mrs. Stoutt, in which she shows just how, when, and where she obtained the money with which she purchased the property. She made these statements nearly a year before the trial. They were supported by public records, and, if they were not correct, appellant had ample opportunity to show otherwise. No attempt has been made, however, to show that she did not have the means to purchase the property, but, notwithstanding this, we are asked to find that she did not have them upon mere inferences. Inferences may be of much weight under some circumstances, but, when inferences are met by direct and positive statements which are reasonable and uncontradicted, the finding of the trial court, which is in accordance with the direct statements, must prevail. If Adaline Stoutt purchased the real estate in question and paid for it out of her own funds, it is as much her property as any property claimed by appellant would be when purchased for himself and paid for with his own means. It may be a misfortune to appellant that he is unable to collect the amount of his judgment against J. M. Stoutt, but he has no right to subject the property of Mrs. Stoutt to the payment of his judgment. The court may not upon mere inferences declare Mrs. Stoutt's property as belonging to her husband because she has property and he has none, and upon the ground that they are husband and wife. The dealings between husband and wife in case the husband fails to pay his debts, and when the wife claims property which apparently is in their joint possession as her own, always require close scrutiny; but, when it is made to appear that the wife, at the time of the marriage, had, and while that relation subsisted continued to have, separate means and a separate estate, the courts are bound to protect her property and estate to the same extent as they are the property and estates of others. The laws which gives the wife the right to acquire and own property separate and apart from her husband, and to deal with it as all others may

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with their property, would be of but little, if any, benefit to her if the court, without satisfactory proof, and without good reasons, compelled her to sacrifice it for the debts of her husband. In such cases fraud is involved, and, before the property claimed by the wife can be declared to be the property of the husband in fact, the court should be convinced from all the facts and circumstances in evidence that the wife's claim is not well founded and is made in bad faith. While it is true that, if we should adjudge the property in question to be subject to the judgment of appellant, he would receive no more than is due him, yet, in view of the evidence, we would have to invade the property rights of another to accomplish the result. This we have no right to do. Adaline Stoutt is as much entitled to her property as appellant is to his. He has not convinced us that her claim to the property in question is not well founded, and hence he cannot prevail.

The objection to the introduction of the deposition

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of Adaline Stoutt in evidence upon the ground that the court refused to make an order permitting appellant to orally cross-examine her at the time the deposition was taken is not tenable. The deposition was taken in conformity to the statute which requires that all interrogatories, direct and cross, be reduced to writing, and that the witness be required to answer them in that form. The Legislature provided this as one of the methods for taking the testimony of an absent witness, and the trial court was powerless to change the method prescribed. There was, however, another method which appellant could have adopted. He failed to do this, and hence cannot now complain that the court followed the method prescribed by statute.

The claim that the court erred in not excluding the deposition because one of the direct interrogatories was answered by the witness after it had been stricken out by the court cannot prevail. The interrogatory remained among the other interrogatories, and the notary, in taking the deposition, no doubt required an answer to it as he did. to the others. The witness answered it, but the court did not

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permit the answer in evidence. This left the matter just where it would have been if the question had not been in the deposition, and had not been answered by the witness. The witness apparently did not know that she ought not answer this interrogatory, and no reason is made to appear why this unauthorized answer should be permitted to affect the whole deposition.

The judgment is affirmed, with costs to respondents.

MCCARTY, J., and LEWIS, D. J., concur.

GEORGE T. ENSIGN, Appellant, v. THE COLORADO INVESTMENT LOAN COMPANY, a Corporation, Respondent.

CON

No. 1920. Decided February 5, 1909 (99 Pac. 1076). BUILDING AND LOAN ASSOCIATIONS-LOANS-UNCONSCIONABLE TRACT. Plaintiff applied to defendant building and loan association for a loan of $1,000. The association arranged with a bank to loan plaintiff $900, and the association loaned him $100. Plaintiff in November, 1901, executed a note to the bank for $900, and to secure it gave the bank a mortgage on real estate of the value of $1,680. Plaintiff also at the same time executed a note to the association for $1,000, and gave a second mortgage on the land to secure its payment. The bank's note was payable in three years, with interest at 7 per cent., and the association note on or before 120 months, with interest at 6 per cent. on $1,000 and 30 cents on every $100 thereof. The association agreed with plaintiff but not with the bank to assume the bank debt, provided only plaintiff paid the interest and principal on the bank note to the association. The association also required plaintiff to take out life insurance for its benefit and pay the premium. In December, 1905, plaintiff had paid the association $701.70, when the association still claimed that plaintiff owed the bank the entire principal and interest from November, 1905, and still owed the association $46.98. Held, that the contract was unconscionable.1 (Page 258.)

1 Cain v. Reeve, 30 Utah 56, 83 Pac. 568; Christensen v. Colorado nvestment Co., 33 Utah 1, 91 Pac. 581.

APPEAL from District Court, Third District. Hon. T. D. Lewis, Judge.

Action by George T. Ensign against the Colorado Investment-Loan Company. Judgment for defendant, and plaintiff appeals.

REVERSED.

C. S. Patterson for appellant.

Grant H. Smith for respondent.

STRAUP, C. J.

The defendant is a building and loan association. The plaintiff was a member of the association. He applied to it for a loan of $1,000. The association arranged with the Deseret Savings Bank to let him have $900, which was paid to him by the bank. The association itself loaned him $100. In November, 1901, he executed a note to the bank in the sum of $900. To secure its payment, he gave the bank a mortgage on real estate owned by him of the value, with the buildings proposed, of $1,680. Notwithstanding the association loaned him only $100, he, nevertheless, at the same time executed a note of $1,000 to the association, and gave it a second mortgage on the real estate to secure its payment. The bank's note was payable in three years, with interest at 7 per cent. per annum; the association's note of $1,000 on or before 120 months after date "with interest thereon at the rate of 6 per cent. per annum on said sum ($1,000.00) and thirty cents on every $100.00 thereof." The association entered into a written agreement with the plaintiff, but not with the bank, to assume and pay the principal and interest of the bank's note, provided, however, in the event only that the plaintiff first paid the interest and principal of the bank note to the association. If he was in default on any one of such payments, the association's agreement to assume and pay the interest or principal of the bank's note ceased to be effectual, and gave it the right to declare its own note due and payable.