
    Alice Milliken v. C. M. Condon, W. W. Inglish, and J. W. Towles.
    No. 266.
    Evidence, Examined — Instruction Approved. The evidence examined; held, that the withdrawal of the same from the consideration of the jury was not error.
    Error from Labette district court; J. D. McCue, judge.
    Opinion filed June 15, 1898.
    Affirmed.
    
      F. II. Atchinson, for plaintiff in error.
    
      Nelson Case, for defendants in error.
   The opinion of the court was delivered by

Schoonover, J. :

Alice Milliken and J. H. Mil-liken, her husband, executed a chattel mortgage on eight head of steers, the horse in dispute in this action, and other property, to J. B. Montgomery.

The defendant C. M. Condon had a judgment against John H. Milliken and others upon which execution was issued and the steers levied upon. While the levy was in force Condon purchased the mortgage from Montgomery. On September 6, 1892, at the sheriff’s sale, Condon purchased the steers described in the mortgage; and on September 17, 1892, he took possession of the horse in dispute, under and by virtue of his mortgage. This was three days after the note secured by the mortgage became due.

On September 26, 1892, the plaintiff commenced this action to recover possession of the horse. The defendant answered by general denial. At the trial, the defendant, after the introduction of plaintiff’s evidence, offered the note and mortgage in evidence and rested his case.

The plaintiff, in rebuttal, offered evidence to show that the mortgage had been satisfied by the sheriff’s sale of the steers to Condon, and that the value of the steers exceeded the mortgage debt.

The court, after admitting the testimony, withdrew it from the consideration of the jury and gave the following instruction :

“There is no evidence before you, gentlemen, that shows or tends to show that the note has ever been paid, or that it is not a valid claim as against plaintiff in this action. By the transfer of the note from J. B. Montgomery to C. M. Condon, C. M. Condon became the owner and holder of the chattel mortgage to secure the same, and entitled to all its benefits.’’ "

We have carefully considered the testimony withdrawn from the consideration of the jury ; it does not show or tend to show that the debt had been satisfied, and the giving of the instructions complained of was not error. Other errors are complained' of, but they are not sufficient to require a reversal of this case.

The judgment of the district court is affirmed.  