121 Kan. 3 | Kan. | 1926
The opinion of the court was delivered by
The action was one to foreclose a mortgage. The plaintiff prevailed, and the defendant appeals.
The plaintiff contends that since the conveyance to the defendant was by quitclaim deed only, the defendant stands exactly in the position of Harry Higginbottom and with no stronger title; that Harry abandoned the land, and the defendant is estopped to deny that, the mortgage sued on is a lien on the whole of the land described; that it was purely a renewal mortgage; that the plaintiff, who is-the holder in good faith, should be subrogated to the rights of the original mortgagee; and that any title Harry Higginbottom may have had was eliminated by the tax sale.
Harry agreed to quitclaim to his brother, and following his removal from the farm he acted precisely and in all respects as though he had done so. Equity regards that as done which should be done, and since Harry failed to execute a conveyance to his brother as he agreed, equity will execute it for him. Under the circumstances, Harry had no interest in the land at the time of the execution of the quitclaim deed to the defendant, and the defendant took nothing thereby. (Gilmore v. Hoskinson, 98 Kan. 86, 91, 157 Pac. 426, and cases there cited.)
The renewal mortgages were given to take the place of the one originally executed by the Higginbottom brothers. The plaintiff took an assignment of the mortgage in controversy in all good faith. Under all the circumstances, no good reason appears why he should not be subrogated to the rights of the original mortgagee. The doctrine of equitable subrogation was well treated in Breyfogle v. Jackson, 113 Kan. 373, 214 Pac. 779. The principles discussed there (pp. 376-377) are applicable here. (See, also, Gano v. Martin, 10 Kan. App. 384, 61 Pac. 460; Eversion v. Central Bank, 33 Kan. 352, 6 Pac. 605; Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453; Zinkeison v. Lewis, 63 Kan. 590, 66 Pac. 644; Warne v. Morgan, 68 Kan. 450, 75 Pac. 480; Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Deposit
The judgment is affirmed.