Skinner v. Mitchell

48 P. 450, 5 Kan. App. 366, 1897 Kan. App. LEXIS 542

• Court: Court of Appeals of Kansas
• Decided: March 22, 1897
• Docket: No. 197
• Status: Published

Opinion

1. Covenant to satisfy mortgage is personal.

McElroy, J.

It is contended on the part of the plaintiffs in error that this bond is in the nature of a covenant running with the land, known as a “ real ” covenant. This position is not tenable. A covenant to pay off a certain mortgage is personal, even though it is expressly stated in the lease or grant that the covenant shall run with the land. Campbell v. Johnson, 4 Dana, (Ky.) 177. See Addison on Contracts, vol. 3, note 113, Appendix.

2. errors not specified, no reversal.

The plaintiffs in error allege error on the part of the trial court in the admission of evidence, and also in excluding evidence. The plaintiffs in error fail to point out what evidence was received over their objection, and also what evidence was excluded. We have examined the evidence very carefully and we are unable to find any error committed by the trial court in admitting or rejecting evidence, as against the plaintiffs in error.

3. demurrer to overruled, when.

The plaintiffs in error claim that the trial court committed error in overruling their demurrer to the plaintiff’s evidence. The record shows there was competent testimony before the jury as to each material allegation in plaintiff’s petition. The plaintiff made a prima facie case. There was enough evidence to justify the jury in finding for the plaintiff. In the case of Harter v. A. T. & S. F. Rld. Co. (55 Kan. 258), it was said in the opinion delivered by Mr. Justice Allen :

“The rule that upon a demurrer to the evidence the court will not weigh conflicting testimony, but that, if there is any competent testimony tending to support every material averment of the plaintiff’s petition, the case must be submitted to the jury, is too well established to require comment, or the citation of numerous authorities.”

The court committed no error in overruling the demurrer.

4. Condition in bond complied with in spirit, bond valid.

The bond was a promise to pay money. It is true that there is a limitation placed upon the use which Mrs. Mitchell shall make of the money when she receives it; that is, that she shall apply the money to the payment of the mortgage for which the Thorntons were primarily liable. They have promised they will make the payment; the amount is fixed; the date of payment is fixed ; and the only condition, or exception, is as to the use that shall be made of this fund. And this clause which limits the use that shall be made of this fund is no longer obligatory, since Mrs. Mitchell has paid the mortgage debt. It is for the payment of a debt for which the Thorntons and Mrs. Mitchell are liable. If she paid the mortgage debt from her own funds, she could maintain tliis action to reimburse herself. If she paid the mortgage indebtedness by a sale and conveyance of the real estate, she would be entitled to collect and keep the money as her own. If, however, she collected the money first, as she had a perfect right to do under the conditions of the bond, then she would be under obligation to use the money for the purpose limited in the bond.

The instructions of the court to the jury correctly state the law applicable to this case, and the issues joined by the pleadings. We find no error committed by the trial court in giving or refusing instructions. Under the pleadings and evidence, the plaintiff was entitled to have judgment upon the verdict for $324 together with interest, and the trial court committed no error in rendering judgment upon the verdict in this case.

The judgment will be affirmed.