88 Kan. 752 | Kan. | 1913
The opinion of the court was delivered by
This was an action to redeem certain city lots which had been mortgaged by Charles W. Clark to secure the payment of $150 borrowed from Walter Morris on October 17, 1906. The instrument given as security was in form an absolute deed, but was intended as a mortgage. After this transaction Clark purchased the property at a subsequent tax sale, and the certificate then obtained was assigned to Morris as additional security. The borrowed money was to be paid in small installments at fixed times, but Clark failed to make the payments at the times stipulated. On April 9, 1909, Morris sold the lots to Philip Schott, who had no notice of the rights of Clark or that he was in fact the owner of the lots, and by this sale Morris disabled himself to reconvey the lots to Clark upon the payment of the debt. The writings evidencing the sale to Schott were not recorded, and Clark had no notice that Schott had purchased .the lots until the writings were produced at the trial of this action. Before the sale to Schott, Morris, with four men, went to the lots one morning before daylight and put up a post and single wire fence around them. Clark discovered the action of Morris before the fence was finished, and in an interview Morris informed Clark that he had concluded to take possession of the lots. Morris testified that Clark then consented that he should take
The first and principal ground assigned as error is that a wrong measure- of damages was applied in fixing the liability of Morris. The court decided that he was liable for the value of the lots as they were when the tender of payment was made and the reconveyance of the lots was refused, while on the other side it was contended that a cause of action arose when Morris sold the property and placed it beyond his power to re-convey, and that its value at the time of sale was the measure of recovery. In a proceeding of this kind equitable considerations govern, and the measure of
In Burdick v. Seymour, 39 Iowa, 452, an instrument conveying land was defectively recorded, and the
Other authorities to the same effect are: May v. Le Claire, 78 U. S. 217; Meehan v. Forrester et al., 52 N. Y. 277; Gibbs v. Meserve, 12 Ill. App. 613; Linnell v. Lyford, 72 Maine, 280; Johnson v. McMullin, 3 Wyo. 237, 21 Pac. 701, 4 L. R. A. 670.
Some of the authorities referred to in 27 Cyc. 1033 "hold that the value should be ascertained as of the time The sale of the property is made, and where there is notice of the sale and freedom from fraud such a rule might be deemed equitable. In view of the circumstances of this case the rule of the trial court that damages should be measured by the value of the lots
Complaint is made as to the exclusion of evidence from the jury as to the surrender of possession and the disclaimer of interest in the property by Clark, but the ruling is not open to our consideration. By section 307 of the civil code a party who wishes to avail himself of a ruling excluding offered evidence as error is required to produce such evidence on the motion for a new trial, by affidavit, deposition or oral testimony of the witnesses. This was not done, and hence that ruling, whatever it may have been, can not be regarded as a ground for reversal. It might be said, however, that testimony upon this subject was received in evidence in the trial which was had before the jury was called. -At the end of that trial the court appears to have determined every question in the case except as to the amount of damages sustained by Clark, or, in other words, the value of the property when payment of the debt was tendered by Clark. In the testimony then received, including that relating to an alleged disclaimer of ownership, the court determined that Morris held no more than a mortgage lien on the property and that as against him Clark had a right of redemption. There was testimony, too, before the court at that time in regard to the value of the lots, and the court might very well have gone farther and made a final disposition of the case, deciding for itself the value of the property and the amount of recovery. However, the court impaneled a jury and received testimony on the question of value at the time of Clark’s tender, and the jury’s finding was approved by the court. There was no occasion to resubmit the questions previously determined by the court, and assuming that the testimony as to the voluntary surrender of possession and
The judgment of the district court will be affirmed.