61 P. 509 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
The questions presented by the assignments of error and by the argument of counsel we will take up in order. The first one is that, as George T. Anthony never assumed or agreed to pay this mortgage debt, the assumption of the same by his grantee was without consideration and not binding upon her. George H. Anthony and wife, on the 1st day of October, 1875., executed and delivered their promissory note to Cynthia Anthony, whereby they promised to pay to her order, five years after date, the sum of $1127.38. For the purpose of securing the payment, thereof, they executed their real-estate mortgage upon the southwest quarter of section 14 and the southeast quarter of section Í5, township 7, range 11. George H. Anthony and wife, on the 30th day of December, 1887, conveyed the same lands to George T. Anthony, “in consideration of the sum of one dollar and other valuable consideration, to them in hand paid.” George T. Anthony, on the 3d day of August, 1896, conveyed the same lands to his wife, Bose L. Anthony. This last deed recites
“that the premises are free, clear, discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encumbrances, of what nature or kind soever,*108 except one certain mortgage to Cynthia Anthony, on which there is a balance due of $610.40, and which grantee is to assume and discharge.”
By the terms of the deed of conveyance made by George H. Anthony and wife to George T. Anthony, the grantee did not assume or agree to pay the mortgage indebtedness. However, after the lands were conveyed to him, he made various payments of interest and principal upon the note and mortgage. He prepared and delivered to Cynthia Anthony a statement of account, in which he charged himself with this indebtedness. He also entered into a written agreement with her that the rate of interest, from a certain date, presumably from the date the lands were conveyed to him, should be seven per cent. It appears that, at all times after he purchased the lands, he treated this mortgage debt as if he was the payor. The testimony of George H. Anthony is sufficient to lead one to the conclusion that this indebtedness was assumed by his grantee as a part of the purchase-money. If George T. Anthony was legally liable for the payment of the amount due upon the mortgage, he had a right to charge his grantee with its payment as a part of the consideration for the conveyance of the lands to her.
The first, second and third findings are supported by evidence, and are the proper conclusions under the evidence.
The only remaining question for consideration is as to whether this was paid prior to the commencement of the action. The amount due on principal and interest August 3, 1896, was $610.40. The plea of payment is an affirmative plea, and the burden of proof is on the party who asserts payment. The record shows, and the court found, payments as follows : Sep
The plaintiff in error contends that she paid, March 24, 1897, by draft from Streeter’s Bank, of "Westmoreland, $100 ¡ The evidence as to this last payment is very unsatisfactory. There is some testimony in the record tending to show that this was the draft of March 18 which had been returned for indorsement. We are unable to say which of these contentions is correct. The burden of proof being upon the plaintiff in error to establish the fact of payment, she must prove the alleged payment by a preponderance of the testimony.
The trial court found against the plaintiff upon this contention, and we are unable to say that the court erred ; hence the findings in this regard are conclusive.
The court found that the judgment should bear interest at the rate of ten per cent. This was error. The judgment should bear interest at seven per cent. This matter does not appear to have been brought to the attention of the trial court. The judgment will be modified so that it will draw interest at the rate of seven per cent., and affirmed as modified.
