14 Kan. 548 | Kan. | 1875
The opinion of the court was delivered by
This was an action on a note and mortgage. The petition alleged that the Ottawa University executed a note and mortgage to one Washington Libby; that the latter duly assigned the same to plaintiff; that the note was unpaid, and that the other defendants John T. and Jane K. Jones claimed some interest in the mortgaged premises, and prayed a decree of foreclosure and sale. The University answered, pleading usury in the note, which upon its face drew twenty per cent, interest, and admitting the answers of its co-defendants. The other defendants filed separate answers, admitting the execution of the note and mortgage, and the assignment thereof to plaintiff, but alleging subsequent conveyances to themselves from the University of the mortgaged premises, and pleading usury; and further, that without the knowledge or consent of either of the defendants, and without any rightful authority, the plaintiff had subsequently to his purchase of the note and mortgage entered into possession of the mortgaged premises, and received the rents and profits thereof, which they asked might be applied in payment of the principal of the note. To these answers the plaintiff filed a general denial. Upon these pleadings the trial was had. The defendants called the plaintiff, who admitted taking possession of the property, upon which were two houses, one of which he occupied himself and the other rented. He testified to making some repairs, and some permanent improvements. He also testified upon cross-examination to a conversation with Mr. Atkinson, the managing officer, of the University, prior to taking possession, and in relation thereto, as follows:
*551 “Went to see Mr. Atkinson about buying tbe property. He had before that time offered it to me for sale. Mr. Atkinson said if I bought the property he would see that I got possession. Told him that I wanted possession immediately. Atkinson said he could give possession at any time. Told him that Zimmerman was in possession under a lease, until next spring; and that he would have to be paid something to go out. Atkinson said that Z. had not got it for any certain time, but went and hunted up the lease, and found that Zimmerman did have a lease for it until spring. Atkinsbn then said, ‘I think I can make an arrangement; if you buy the property, you shall have possession-anyway.’ This was all that was said about possession, and was before I purchased the note from Washington Libby. I last saw the lease of Zimmerman in Mr. Atkinson’s office at the University building. ‘Zimmerman went out of the property, and I immediately went into possession. This was two weeks after the conversation with Atkinson.”
No other testimony was given as to the manner of acquiring possession. He had prior thereto been asked if he had had any conversation with Atkinson about the purchase of the property, but an objection had been sustained to this question. Upon the whole testimony the note calling for twenty per cent, interest was held usurious, and only the principal collectible. Cook as mortgagee in possession was charged with the rents and profits, and allowed for the repairs, but not for the permanent improvements'placed upon the premises for his own convenience.
After the case had once been closed, Cook moved for leave to open the case to enable him to introduce two tax deeds under which he claimed title, but the motion was overruled. He also moved for leave to open the case to offer some title papers to part of the premises, but this motion was also overruled. No application was at any time made for leave to amend the pleadings, though the intimation is given by counsel in his brief that if the judgment be reversed the case would not be tried again upon the same pleadings. We have given the case careful attention, and are constrained to say that we find nothing to justify a reversal of the judgment. So far as the applications to open the case are concerned, such matters are
The judgment will be affirmed.