Skinner v. Mitchell

• Decision Date: 22 March 1897
• Docket Number: 197
• Parties: JOHN R. SKINNER, as Administrator, AND GEORGE THORNTON AND ELIZABETH THORNTON v. RUMINA MITCHELL
• Court: Kansas Court of Appeals

48 P. 450

5 Kan.App. 366

JOHN R. SKINNER, as Administrator, AND GEORGE THORNTON AND ELIZABETH THORNTON v. RUMINA MITCHELL

No. 197

Court of Appeals of Kansas, Northern Department, Central Division

March 22, 1897

Opinion Filed March 22, 1897.

Error from Smith District Court. Hon. Cyrus Heren, Judge. Affirmed.

This action was brought in the District Court of Smith County by the defendant in error against the plaintiffs in error to recover on a bond which obligated the plaintiffs in error to pay defendant in error a certain sum of money. The Thorntons plaintiffs in error, in exchange for some property, conveyed to Mrs. Mitchell, defendant in error, certain real estate which was mortgaged by the Thorntons, prior to their giving of the bond, to the Smith Brothers Loan and Trust Company, in the sum of seven hundred dollars. The mortgage indebtedness was due about August 1, 1892. The bond on which this suit was brought was given to Mrs. Mitchell as an evidence that the Thorntons would pay to her three hundred dollars of such indebtedness, together with the accruing interest thereon. Mrs. Mitchell, in consideration of an exchange of property and of the payment of the amount of money agreed to be paid in the bond, was to pay the mortgage indebtedness on this real estate. About the time the mortgage indebtedness became due and payable, Mrs. Mitchell conveyed the legal title to this real estate to the Smith Brothers Loan and Trust Company, in payment of the mortgage indebtedness. Henry Gordon was the owner and holder of the mortgage indebtedness and the Smith Brothers Loan and Trust Company was his agent, negotiated the loan for him, and represented him in all of his business transactions in connection with this mortgage indebtedness. After the title was conveyed to the Smith Brothers Loan and Trust Company, Henry Gordon executed a release of the mortgage and caused the same to be recorded, acknowledging satisfaction and payment of such indebtedness. Trial was had and a verdict rendered in favor of the plaintiff below, and the Thorntons bring the case here.

Judgment affirmed.

L. C. Uhl, for plaintiffs in error.

Frank McKay, for defendant in error.

OPINION

MCELROY, J.

It is contended on the part of the plaintiffs in error that this bond is in the nature of a covenant running with the land, known as a "real" covenant. This position is not tenable. A covenant to pay off a certain mortgage is personal, even though it is expressly stated in the lease or grant that the covenant shall run with the land. Campbell v. Johnston, 34 Ky. 177, 4 Dana 177. See Addison on Contracts, vol. 3, note 113, Appendix.

The plaintiffs in error allege error on the part of the trial court in the admission of evidence, and also in excluding evidence. The plaintiffs in error fail to point out what evidence was received over their objection, and also what evidence was excluded. We have examined the evidence very carefully and we are unable to find any error committed by the trial court in admitting or rejecting evidence, as against the plaintiffs in error.

The plaintiffs in error claim that the trial court...