54 Kan. 266 | Kan. | 1894
The opinion of the court was delivered by
This action was brought by the Vermont Investment & Guaranty Company against Robert Rogers and wife, S. W. Shattuck, and S. W. Shattuck, jr., but was afterward dismissed as to S. W. Shattuck, jr. The plaintiff sought to recover judgment against all the defendants on a bond for $2,000, executed by the defendants Rogers and wife, and to foreclose a mortgage on certain property in Sedgwick City, given to secure the same. The petition alleges that the defendants S. W. Shattuck and S. W. Shattuck, jr., purchased the real estate covered by the mortgage and assumed payment of the mortgage debt. The only issue in the case was as to the liability of S. W. Shattuck. He denies having received any deed for the mortgaged property, and denies any assumption of the debt.
Many questions are discussed at length in the briefs, most of which, however, it will not be necessary to mention. It is contended that suit on the bond and mortgage was prematurely brought, because there was no notice of an election by the plaintiff to treat the whole sum as due. The mortgage provides that on failure to pay any part of principal or interest, the whole shall become due, at the option of the holder,
The alleged deed from Rogers and wife to Shattuck was not introduced in evidence, nor was any copy produced. Robert Rogers testified, on behalf of the plaintiff, that he executed a deed for the mortgaged premises, and gave it to Mr. Shat-tuck, who took it, read it, and put it back on his safe or shelf; that the deed was written by Mr. Shattuck himself. The defendant Shattuck was then called, and testified that he did not have the deed, and that he never had it filed for record. Rogers was then recalled, and testified, over the objection of Shattuck, to the contents of the deed, and that it contained a clause under which Shattuck assumed the payment of the mortgage. We do not think the loss or destruction of the instrument was fairly shown before this evidence was offered, and therefore there was not sufficient foundation laid for its introduction. Whether the testimony subsequently introduced was sufficient to render the error immaterial, we do not deem it necessary now to consider, as other questions are decisive of the case.
Objection was made to the testimony of G. L. Anderson (before whom it is alleged the deed was acknowledged) with reference to its contents. Anderson does not claim to have been present at the time of the delivery of the deed. We think it competent for the plaintiff to show that the deed which was exhibited to Anderson was in fact delivered without change to Shattuck, and thereupon to show by Anderson the contents of the deed — this, of course, only after the loss or destruction of the instrument has been shown. This testimony of Anderson could have no bearing on the question of the delivery of the instrument, and could only be used for the purpose of showing its contents, leaving the questions as to its delivery, and the identity of the deed shown to the witness with that in fact delivered, to be shown by other evidence, and in admitting the testimony, we think the court should inform the jury as to the purpose for which it is allowed.
“11. The jury are instructed that if there were not a complete acceptance of the deed by Shattuck, that is, if Shat-tuck and Rogers agreed that the deed should not be considered delivered until the other documents were also delivered, in that case there was no delivery of the deed without the ■delivery of the other papers, unless you believe that Shattuck afterward waived the said conditions, and treated the deed as delivered by collecting rents, and accepting its benefits.
“12. The burden of proving that the delivery of the deed was conditional is upon the defendant Shattuck, and the fact must be proven by the greater weight pf evidence.”
“ 14. The defendant Shattuck further insists that the paper which he drew up and handed to Robert Rogers to be executed as a deed of the Sedgwick City property in question, contained the name of one S. W. Shattuck, jr., as grantee, and that it was so understood and agreed by defendant Shattuck and defendant Rogers, and that said defendant S. W. Shat-tuck was only acting for said S. W. Shattuck, jr. If the jury find that the deed in question was made to S. W. Shattuck, jr., and not to the defendant S. W. Shattuck, then you cannot find a verdict against the defendant S. W. Shattuck.
“15. But the said defendant Shattuck must prove by the greater weight of evidence that the deed was so made.”