Opinion of the court by

The defense relied upon by the defendants was, that such a contract to convey lands is illegal and void. When we consider that portion of the petition which asks for a specific performance of the contract, or that pdrtion which asks to have the contract considered as a mortgage against the premises, and for a foreclosure of the same, in the light of the doctrine laid down by the supreme court of Kansas, in the case of Mellison et al. v. Allen et al. 2nd. Pac. 97, 30 Kans. 382, and the doctrine declared by the California supreme court in the case of McGregor, Administrator, v. Donnelly, reported in the 7th Pac. 422, we must concede that this contention is correct; but, notwithstanding the fact that this written contract could not be enforced according to its terms, or could not be legally held to be a mortgage, if the one party advanced money to the other, under said contract, and such advancement was made for a leg'timaie and legal purpose, and the same was accepted and used by the other party for a proper and lawful purpose, a party might maintain an action for money had and received, notwithstanding the fact that the original contract was illegal and void. Now in the case at bar the money advanced by the plaintiff in the court below to the defendant, with the exception of the item of seventy-five dollars, which the proof shows was used for the purpose of preventing an indictment for perjury against the defendant in the court be [*351] low, this money having been advanced for an illegal purpose was entirely eliminated from the consideration of the jury by the trial court by an instruction; the balance of the money was all used for legitimate and legal purposes, to-wit: the building of a house on the homéstead, the fencing of the land, paying of fees for proving up on the claim, paying the expenses of witnesses in attending the trial of the contest over the homestead, and the services rendered by the plaintiff in- the court below, if the jury believed they were rendered by him, for the purpose of assisting the defendant in the court below in maintaining his claim to this homestead, and in looking _up evidence and examining witnesses for this purpose, was a proper and legitimate service; and if the jury believed that such services were rendered at the request of the defendant, then they were such services as the plaintiff in the court below would have a right to recover for. Now it seems to us that this question of the right to recover for the money advanced for these purposes and services rendered would exist independent of the question of whether thi-s contract in question was legal or illegal,- or whether such a contract could be by law enforced according to its terms or not. This seems to have been the view taken by the court below, and seems to have been entirely covered by the instructions given by the court to the jury. The court instructed the jury as follows on this question:

“You are instructed that the written contract set out and offered in evidence is illegal and void, but as the money claimed to have been advanced by the plaintiffs to the defendants, was for a lawful purpose, the plaintiffs may recover from the defendants the amount of all of the moneys advanced by them to the defendants, as shown [*352] by tbe evidence, except tbe sum of $75.00 which plaintiff, William Butler, admits was paid out for the defendants, for the purpose of preventing an indictment from being returned against the defendant, Robert W. Higgins. As the sum paid by the plaintiffs to prevent such indictment would be for an unlawful purpose, he cannot recover that amount.”

Which instruction we think entirely and co. rectly i.tatcs the law.

Now as to the defense of the statute of limitations, the court instructed the jury as follows:

"The defendants in this case have pleaded the statute of limitations, and in this connection the court instructs the jury that the statute of limitations fully runs upon an open account at the expiration of three years from the date the debt is created, unless a time is fixed by agreement in the future when such money shall become due, in which event the statute does not fully run until after the expiration of three years from the time it is agreed that such money shall be paid. If you should find that there was no agreement between the plaintiffs and the defendants when the money claimed to have been advanced by plaintiffs to defendants should be paid, except the written agreement, then and in that event the statute of limitations would fully run at the expiration of three years from the date of the last advancement from the plaintiffs to the defendants; but if you should find from the evidence that the defendants had, at any time before the statute of limitations had fully run, or thereafter, executed a written instrument to the plaintiffs in which they admitted the indebtedness, and agreed to pay the same, or that defendants made a payment to plaintiffs, then and in that event the debt would be renewed and the statute would run for three years after the execution of such written instrument, or payment.”

This instruction slates fairly the true rule of law as to the'statute of limitation. And when the statute of limi [*353] tation is pleaded as a defense, if the jury was'properly instructed as to the law, then the same becomes a question of fact, to be determined by the jury.

As to the defense of payment interposed by the defendants, in the court below, the burden of proof rested upon them; they must make out this defense to the satisfaction of the jury, by a preponderance of the evidence before they could succeed in such defense.

As to whether they have so established the fact or not is a question of fact for the jury to determine in every action. We have examined the instructions of the court as to the law, and are satisfied that they were correct. The jury having found in favor- of the plaintiff, and against the defendants, upon all these issues, and there being evidence in the record which reasonably tends to support the verdict, under the well established rule of this court we will not disturb the verdict of the jury. And in this case it seems to us that an examination of the record will show, not only that the plaintiffs in error, who were the defendants in the court below, had a perfectly fair and impartial trial, but that substantial justice has been done.

As to the contention that the verdict of the jury is excessive, we cannot agree with this contention. The testimony of the plaintiff was that he had expended in cash for the defendants and at their request fifteen hundred dollars; that he had made several trips to the place of holding the land contest at the request of the defendants, and had rendered services which were enumerated and described to the jury for which he was unable to fix a definite amount as to the value thereof. But under the ins¡ructions of the court this was the province of the jury [*354] to determine, what such services were worth. . The jury had the entire evidence beiore them, they met the witnesses face to face, they had many ways to determine the weight and credibility of the testimony which this court cannot possibly have; and, as on an examination of the entire record, we feel satisfied that there was evidence which-fully sustained the finding of the jury, and finding no error in the instructions of the court as to the law, and bélieving that substantial justice has been done, the judgment of the court below will be affirmed.