95 P. 1135 | Kan. | 1908
There was testimony which tended quite strongly to show that the deed from George H. Winsor to his son Frank, although absolute in form, was a mortgage given to secure a debt of $300, and that A. D. Winsor, another son, to whom Frank conveyed the farm after their father’s death, knew the facts and circumstances when he took the conveyance. There was evidence that the last time the father left the place, which was less than three weeks prior to his death, he went to Frank and demanded that the farm be deeded back to him, and that Frank told him it would not be done until the $300 which he owed was paid. In order to establish the plaintiff’s claim that the farm belonged to the heirs it was not necessary to prove that the debt which the mortgage was given to secure had been paid. Continued default would not make the conveyance absolute if it were in fact a mortgage. The evidence also tended to establish that A. D. Winsor, the defendant in error and one of the defendants below, lived on the farm with his father for some time prior to the latter’s death; that the personal property on the farm, or some of it, belonged to the father; that the defendant in error took or retained possession of it and has never accounted to the plaintiff or to the other defendants in any manner for the share belonging to their father. We have no hesitation in saying that the court erred in sustaining the demurrer to the evidence.
The judgment is reversed, and the cause remanded for another trial.