Connecticut General Life Insurance v. Boomis
Connecticut General Life Insurance v. Boomis
Opinion of the Court
The opinion of the court was delivered by
This was an action to foreclose a mortgage. Judgment was for plaintiff. On the motion to confirm the sale the period of redemption was fixed at six months. ’Defendants appeal from the order fixing the period of redemption.
There was evidence pro and con, both oral and documentary. The essential facts, however, are not in dispute. On October 26, 1926, defendants entered into a contract with Carl and Virginia Ziegler for the purchase of the real estate in question. At the time of the execution of the contract defendants made a down payment of $6,000 cash; the balance was to be paid in yearly payments. The Zieglers executed their deed to the property and placed it in escrow to be delivered to defendants after they had made certain payments. The purchase price named in the deed was $29,500. Subsequently, due to difficulty in finding a tenant for the building, additional transactions were had between the Zieglers and defendants. One W. E. Ziegler agreed to spend $14,000 on repairs for the building. Under this agreement Ziegler spent $14,000, and defendants, $7,227, making $21,227 spent on repairs. At the same time a supplemental contract was entered into between Carl and Virginia, on one hand, and defendants on the other. This contract recited that W. E. Ziegler had furnished $14,000 for these repairs; that defendants had given their promissory note to W. E. Ziegler
Defendants argue here that more than one third of the purchase
Plaintiff raises the point that defendants did not file any motion for a new trial — hence cannot raise in this court on appeal any question touching on the sufficiency of the evidence, the propriety of the findings made and those refused. It is not necessary for the defendants to file a motion for a new trial after a hearing on a motion to confirm. (See Federal Land Bank v. Richardson, 146 Kan. 803, 73 Pac. 1005.) Such a hearing is not a trial such as requires the filing of a motion for a new trial in order to enable this court to consider the correctness of the result reached.
This is a case where there is but little difference in the evidence. The difficulty is as to the effect to be given the proven facts. There is no dispute but that the purchase price of the property, as named in the deed and in the original contract, was $29,500. There is no dispute but that $6,000 was paid in cash at the time the parties entered into the contract. There is no dispute but that defendants borrowed $14,000 and put it into the building. There is no dispute but that this $14,000 was paid by defendants before the mortgage here foreclosed was given. The supplemental contract between the Zieglers and defendants recited all the facts as to the $14,000 payment. The original contract cannot be considered separately from the supplemental one. When this is done we have no trouble in reaching the conclusion that the trial court should have found that the purchase price of this property was $43,500. Once this conclusion is reached, we are led to a further conclusion that the $14,000 spoken of in the evidence was paid on the purchase price. This with the $6,000 paid at the time the contract was entered into makes $20,000 paid on the purchase price. One third of $43,500 is $14,500, hence much more than one third of the purchase price of the property was paid. The period of redemption should have been fixed at eighteen months rather than six.
The judgment of the trial court is reversed with directions to fix the period of redemption at eighteen months.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.