| Me. | Jun 8, 1907
The undisputed facts are these : The notes in suit had been secured by a mortgage upon some buildings and land, which mortgage had been foreclosed. A few days before the right of redemption expired, the buildings, which were insured by the defendant, the mortgagor, were consumed by fire. The plaintiff, the mortgagee, within a week or two after the fire wrote them (the insurance company) and told them, “I (he) was the mortgagee.” It does not appear that in such letter he briefly described his mortgage, or the estate conveyed thereby, or the sum remaining unpaid thereon, all of which statements were necessary to give him a lien upon the insurance policy. P. S., ch. 49, sec. 54. Nor did he begin any suit against the insurance company as trustee of the mortgagor within sixty days after the loss, as was necessary to preserve and enforce his-lien, had one been acquired. K. S., ch. 49, sec. 55.
The defendant, the mortgagor, made the proofs of loss, but did not collect the insurance upon the buildings until more than sixty days after the fire, before which time the right of redemption had expired and the title to the land had become absolute in the mort
The defendant testified positively that he paid and the plaintiff accepted the $700 of insurance money in full payment and discharge of his indebtedness on the notes. The plaintiff as positively denies that the payment was so made. The jury found the fact to be as contended by the defendant and returned a verdict for him.
We find nothing inherently improbable in the defendant’s testimony. He admittedly had no other property or money, and the plaintiff had no reason to believe otherwise. The plaintiff had no lien on the insurance money. It would have been difficult at least for him to have compelled the plaintiff to pay it to him. He had taken the land, and it would not be at all an improbable or unusual transaction had he accepted, and been glad to accept, $700 in complete discharge of the balance of the debt which he had no prospect of collecting in full. We must regard it as established that the demand sued upon was settled by the creditor in full discharge thereof by the receipt of money paid him for that purpose, and that the defendant is entitled to judgment upon the verdict under It. S., ch. 84, sec. 59, which applies to demands undisputed as well as to demands disputed.
Motion overruled.
Judgment on the verdict.