Bowman v. Clyde

166 P. 518, 101 Kan. 168, 1917 Kan. LEXIS 44

Opinion

The opinion of the court Was delivered by

Mason, J.:

The plaintiff having acquired a note "for $550 secured by a mortgage on land, also the land itself, sold the land for $200, and brought an action against the mortgagor for the balance of $350. The trial court properly held that the defendant was entitled to an additional credit on the note for whatever amount the land was worth over $200. The jury found in effect that it was worth enough’to wipe out the entire debt. On appeal a reversal was ordered on the ground that there was no substantial evidence in support of this finding. (Bowman v. Clyde, ante, p. 165.)

In a petition for a rehearing the defendant calls attention to the fact that the trial court gave an instruction, which this court did not criticise, that the burden of proof as to the value of the land was upon the plaintiff. The defendant .argues that as, according to this instruction, the burden of proving the value rested on the plaintiff and the jury did not believe his witnesses, they were authorized to find as they did regardless of any other evidence. There is a sense in which the plaintiff may be said to have the burden of proof with reference to the value of the land. In order to entitle the plaintiff to treat the sale as a virtual foreclosure, establishing $200 as the amount of credit to be given to the defendant on account of the land, it was perhaps necessary for him to show that the property brought all it was worth, as a mortgagee of chattels may be required to prove the fairness and regularity of a1 sale conducted by himr if it is to be held valid. (Wygal v. Bigelow, 42 Kan. 477, 22 Pac. 612.) Because of the failure of that proof the defendant was entitled to some further credit, but as there’ is no presumption that the land was worth any particular amount it was necessary that he should produce evidence of the extent of his damages (13 Cyc. 192), and so far as the instruction referred to is to be construed as indicating the contrary it must be regarded as inaccurate.

This court is still of the opinion that there is not to be found in the testimony of the plaintiff or other witnesses any substantial evidence that the land was worth as much as $1050. The petition for a rehearing is therefore denied.