37 Kan. 457 | Kan. | 1887
The opinion of the court was delivered by
This was an action brought by William E. Stickel against J. C. Bender for the recovery of certain real estate, the title to which Stickel claimed that Bender acquired fraudulently, while acting as his agent. In 1884, Stickel had possession of one hundred and sixty acres of land in Lincoln county, in this state, under a land contract upon which he had paid four hundred dollars and upon which there was remaining due, as purchase-money, twelve hundred dollars. This land had been purchased by Bender for Stickel from D. Crawford, of Kansas City, Missouri, at ten dollars an acre. In
Upon the trial the court submitted the following issues of fact to the jury:
“Did the defendant, J. C. Bender, take the title h> lots ninety-three and ninety-five, on Spruce street, in Southwick & Augustine’s addition, as part of the consideration for the plaintiff’s land, in fraud of the plaintiff’s rights ? No. Or, did he take the title to said property as security for a debt due to him from Starr in part and the remainder in trust for the use of Starr to be applied to the deferred payments on the Lincoln county land ? Yes.”
Upon the special findings of the jury and the evidence introduced in the case, the court found the issues for the defendant, and rendered judgment accordingly. Of this complaint is made. It is urged as error, that the trial court improperly refused to permit Stickel to prove the declarations of Starr concerning the ownership of lots ninety-three and ninety-five. These declarations were made by Starr after the conveyance to Bender, and were not in his presence or hearing. If it was
We do not think that the plaintiff was prejudiced by the instructions. Only two issues of fact were submitted to the jury. The jury were not required to render a general verdict, and the only matters for their consideration was the evidence upon the issues of fact submitted. Upon these matters they were required to pass upon the credibility .of the witnesses, and to answer the questions yes, or no. The instructions refused would not have aided the j uiy in deciding the questions of fact presented to them: the same might be said of some of the instructions given. The court submitted these questions to the jury as a matter of advice, and after all the evidence had been introduced, made a general finding for Bender. There is sufficient evidence in the record to sustain the findings and judgment of the trial court; and although much of the evidence is conflicting, this court will not interfere, even if the testimony preponderates against the findings.
The judgment of the district court must be affirmed.