Central State Bank v. Glenn

6 Kan. App. 886 | Kan. Ct. App. | 1897

Schoonover, J.

G. M. Glenn and Emma E. Glenn, his wife, gave a first mortgage on certain real estate in Bice County, Kansas, for $650, a second or commission mortgage to the Western Farm Mortgage Company for $65, and a third mortgage to the Central State Bank, plaintiff in error, for $275. G. M. Glenn was also indebted to the plaintiff in error upon a promissory note in the sum of $310, which was secured by a chattel mortgage, executed by G. M. Glenn, on a frame building, certain cattle, and a sorrel colt.

He was also indebted to plaintiff in error for the amount of two drafts, one for $221.35 and the other for. $82, the payment of which had been guaranteed by the Bank. There had been some payments made on this indebtedness and there was some interest due, when A. J. Hoffman, cashier of the Bank, commenced negotiations to settle up ' and liquidate the indebtedness of G. M. Glenn to the Bank. It is contended by plaintiff in error, that upon “the statement of Mr. Glenn that there was but a six hundred, dollar mortgage on the land, Mr. Hoffman, on the part of the Bank, agreed to allow him, to be applied upon this indebtedness to the Bank, for his equity in the farm over and above the six hundred dollar mortgage incumbrance stated to be upon it, $440 ; for the frame building, $100 ; for five head of cattle, $82 ; and for the colt, $53 ;■ a total of $675. This was accepted and agreed upon by Mr. Glenn.”

That in pursuance of this agreement A. J. Hoffman, acting for the Bank, took the deed and went to the home of Mr. Glenn to have the same executed and acknowledged. Plaintiff in error contended on the trial, and now contends, that at the time Mr. Hoffman took the deed to Mr. Glenn- to have it executed and acknowledged, “he made out on one of the de- ' posit slips of the Bank a memorandum of the different amounts to be allowed Mr. Glenn, which memorandum lie took with him. It had the name- of G. M. Glenn written in at the top. After the deed was ex-cuted, Mrs. Glenn requested that her name be written in the memorandum instead of her husband’s, and Mr. Hoffman drew a pen through the initials ‘ G. M.’ and wrote ‘Emma E.’ above, as a matter of courtesy to her.”

The defendantin error contends, ‘ ‘ that the real estate described in defendant’s answer, and which had been conveyed to defendant by plaintiff and her husband, had been the homestead of plaintiff and husband; that certain live stock which had been sold and delivered to' the Bank had been her property, and that she had consented to join in the conveyance of such real estate to the Bank and in the sale and transfer of the personal property, only on condition that she should receive and be paid from the proceeds thereof the sum of $675 ; and that defendant Bank agreed to do so, and in pursuance of such agreement had executed and delivered to her the said certificate of deposit for $675, upon which the sum of $575 and interest remains due.”

And for this amount she brought suit in the District Court of Rice County. The case was tried to a jury, and a general verdict returned for $229.87 for the plaintiff. Special findings were also returned with their general verdict. The defendant brings the case here for review. It is contended by plaintiff -in error that the court erred in the instructions to the jury; but no exceptions were taken to the instructions when given, and they will not be reviewed. The questions for review, as presented, are purely questions of fact. From an- examination of the record, we are satisfied that the case was fairly tried and was submitted to the jury upon competent evidence. There is no complaint that incompetent evidence was introduced. The findings of fact are fully sustained by the evidence and are in harmony with the general verdict.

The judgment of the District Court will be affirmed.