
    John R. Skinner, as Administrator, and George Thornton and Elizabeth Thornton v. Rumina Mitchell.
    No. 197.
    1. Covenant — to satisfy mortgage is “personal.” A covenant to pay off a certain mortgage is a “personal,” and not a “real,” covenant.
    2. Appellate Procedure — error in admitting or rejecting evidence not specified, no reversal. A case will not be reversed on account of error in the admission or rejection of evidence, unless such errors are particularly specified by the plaintiff in error.
    3. Demurrer to Evidence — overruled where evidence sufficient to justify finding for plaintiff. Where there is enough evidence to justify the jury in finding for the plaintiff, a demurrer to the evidence should be overruled; the court should not weigh conflicting evidence in passing upon a demurrer.
    
      4. Condition in Bond — that proceeds thereof be applied to pay mortgage, mortgage otherwise satisfied, bond enforceable. T. gave M. a bond for the payment of a fixed amount of money at a date certain, the bond providing that such money should be used for the purpose of paying a portion of a note for which T. was primarily liable, which indebtedness was assumed by M. in consideration of the bond; held, that M. may recover the amount of the bond, notwithstanding his payment of the indebtedness for which he had agreed to use the money.
    Error from Smith. District Court. Hon. Cyrus Heren, Judge.
    Opinion filed March 22, 1897.
    
      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 Thorn-tons 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.
    
      L. C. Uhl, for plaintiffs in error.
    
      Frank McKay, for defendant in error.
   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. Johnson, 4 Dana, (Ky.) 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 committed error in overruling their demurrer to the plaintiff’s evidence. The record shows there was competent testimony before the jury as to each material allegation in plaintiff’s petition. The plaintiff made a prima facie case. There was enough evidence to justify the jury in finding for the plaintiff. In the case of Harter v. A. T. & S. F. Rld. Co. (55 Kan. 258), it was said in the opinion delivered by Mr. Justice Allen :

“The rule that upon a demurrer to the evidence the court will not weigh conflicting testimony, but that, if there is any competent testimony tending to support every material averment of the plaintiff’s petition, the case must be submitted to the jury, is too well established to require comment, or the citation of numerous authorities.”

The court committed no error in overruling the demurrer.

The bond was a promise to pay money. It is true that there is a limitation placed upon the use which Mrs. Mitchell shall make of the money when she receives it; that is, that she shall apply the money to the payment of the mortgage for which the Thorntons were primarily liable. They have promised they will make the payment; the amount is fixed; the date of payment is fixed ; and the only condition, or exception, is as to the use that shall be made of this fund. And this clause which limits the use that shall be made of this fund is no longer obligatory, since Mrs. Mitchell has paid the mortgage debt. It is for the payment of a debt for which the Thorntons and Mrs. Mitchell are liable. If she paid the mortgage debt from her own funds, she could maintain tliis action to reimburse herself. If she paid the mortgage indebtedness by a sale and conveyance of the real estate, she would be entitled to collect and keep the money as her own. If, however, she collected the money first, as she had a perfect right to do under the conditions of the bond, then she would be under obligation to use the money for the purpose limited in the bond.

The instructions of the court to the jury correctly state the law applicable to this case, and the issues joined by the pleadings. We find no error committed by the trial court in giving or refusing instructions. Under the pleadings and evidence, the plaintiff was entitled to have judgment upon the verdict for $324 together with interest, and the trial court committed no error in rendering judgment upon the verdict in this case.

The judgment will be affirmed.  