51 Kan. 708 | Kan. | 1893
The opinion of the court was delivered by
Permelia Johnson, as plaintiff, brought this action on a promissory note for $500, and attached an interest coupon given by Elliott Johnson and Ella V. Johnson to Griffith & Russell, and to foreclose a mortgage given to secure the same. The lands described in the mortgage had been conveyed subject thereto to the defendant Elizabeth Eaton. The evidence shows that John Johnson, husband of the plaintiff, and father of Elizabeth Eaton, paid off this mortgage and had the same indorsed by Griffith & Russell and delivered to him. The payment was made through I. D. Alter, a banker at Oak Valley, to whom the note and mortgage were sent by Griffith & Russell, and these papers remained in his possession until after the death of John Johnson, when they were delivered by Alter to I. E. Jackson, who was attending to plaintiff’s business affairs. The defendant Elizabeth Eaton contends that her father paid off this mortgage voluntarily for her benefit, and as a gift to her, and that he retained possession of the papers in order to prevent her husband, from whom she had separated, from deriving any benefit from such payment. Evidence was introduced at the trial of declarations made by the deceased supporting her claim. The plaintiff, however, claims that delivery of the note and mortgage was essential to a completed gift, and that the fact that John Johnson took an assignment of the note and mortgage, and retained them in his possession, is conclusive against the defendant’s claim.
We think, however, that this case is unlike one where a direct gift of a chose in action is claimed, and that it was the purpose of John Johnson, when he paid the amount of the mortgage, to make the payment for the benefit of the defendant, and he merely took the assignment in blank of the papers
The plaintiff contends that no valid gift was made to the defendant, yet in her deposition she makes a claim of the same kind, but without any proof whatever of delivery of the note to her. She swears that her husband gave it to her, but the evidence clearly shows that it was never in her possession until after his death. There are hints in the record of a will, but none was produced in evidence, and if one existed we are not informed as to its contents.
The court found that the plaintiff was not the owner of the note, and there is nothing in the record tending to show that she has any title to or interest in the note, unless it be as the widow and one of the heirs of John Johnson, deceased.
Judgment will be affirmed.
