Blount v. Aetna Building & Loan Ass'n

Citations

• 97 Kan. 77
• 154 P. 222
• 1916 Kan. LEXIS 228

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgage — Satisfaction—Special Contract — Expense of Recording Release Payable by Mortgagor — Contract Valid. Notwithstanding the provisions of section 5202 of the General Statutes of 1909, which requires that when a mortgage on real estate has been paid the mortgagee or his assignee shall cause satisfaction thereof to be entered of record “without charge,” the parties may bind themselves by an agreement that the mortgagee shall execute and deliver a release when the mortgage is paid, which shall be recorded at the expense of the mortgagor.</p> <p>2. Same — Expense of Recording Release — Special Contract — Question for Jury. In an action by the grantee of the mortgagor to recover the statutory penalty, the mortgagee interposed as a defense an agreement between the parties to the mortgage that the cost of recording the release should be paid by the mortgagor and that a release had been executed and delivered to him when the mortgage was paid. Evidence was offered in support of the further defense that the correspondence between the plaintiff and the defendant misled the latter as to the particular mortgage the plaintiff desired released. Held, it was error to take the ease from the jury and to render judgment for the plaintiff.</p> <p>3. Same — Amount of Attorney’s Fee■ — Question for Jury. It was error for the court to refuse to submit to a jury the question of the amount of attorney’s fees in such an action.</p>