22 Kan. 746 | Kan. | 1879
The opinion of the court was delivered by
The defendant in error commenced an action on February 1st, 1875, in the district court of Leavenworth county, to recover $3,829 and interest, alleged to be ■due from Martin Glynn, one of the plaintiffs in error, and to foreclose a deed, absolute in its terms, but intended by the parties as a mortgage, executed by both plaintiffs in error,
Plaintiffs in error admitted the execution of a note to defendant in error by Martin Glynn, of $1,074, dated Aug. 8, 1870, and bearing interest at the rate of five-sixths of one per cent, per month, payable monthly, but stated in their answer that no money or other consideration had been received therefor; and further alleged that said absolute conveyance set forth in the petition was obtained by fraud on the part of the building association, in that said deed was represented to them solely as a mortgage to secure the payment of said promissory note of $1,074, and being illiterate persons they signed and executed said deed upon the belief and understanding that it was merely a mortgage. Other defenses were also set forth, but they are immaterial in view of the questions presented for our determination. Upon the trial, the jury returned a verdict for the association for $1,765.18, of which $565.18 was remitted by the association. Judgment was thereupon rendered against Martin Glynn for $1,200, and in default of the payment of said sum within a day stated, it was decreed that the premises described in the pleadings be duly sold to satisfy the judgment of $1,200 and costs. Upon the trial the plaintiffs in error requested the court to submit to the jury the question, “ Was the deed procured from the defendants by fraud on the part of the plaintiff?” which was refused. This ruling is .assigned for error, and presents about the only question in the case worthy of any consideration, and only a few words are necessary to dispose of that matter. It appears from the answer, that in the execution of the written instrument, which in form is an absolute conveyance, the parties signing and delivering it intended to execute a mortgage only. Now, while such instrument has the form of a deed, it was set forth in the petition as a mortgage executed solely as security for the payment of certain money obtained by one of its signers. It was treated on the trial by the court and alLthe parties simply as a mort
It is also contended that the court committed error in receiving as competent evidence a book of account of the association, to prove its laws, and the dues and fines due from Martin Glynn. The answer to this is contained in the statement of such alleged error, to wit, that the book was the only evidence offered of the demands of the association, other than the note of $1,074. As all was remitted from the verdict but an amount less than what was due on the note, the admission of the book is no cause of reversal. “No exception shall be regarded unless it is material and prejudicial to substantial rights.”
In our view, the judgment is sustained by both the law and the evidence, and in the whole record we perceive no material error. (Hekelnkœmper v. Building Association, ante, p. 549; Massey v. Building Association, ante, p. 624.)
Therefore the- judgment of the district court will be affirmed.