100 Kan. 379 | Kan. | 1917
The opinion of the court was delivered by
Truman Leeper and Pearl S. Leeper, his wife, executed to his father, J. M. Leeper, an instrument in the form of an ordinary warranty deed to a quarter section of land. The grantees afterwards conveyed the land to W. M. Glenn, receiving in exchange a deed to a town lot, valued at $5000, the title to which was taken in N. E. Stucker, an uncle of Truman Leeper, who canceled a debt of $4000 owed to him by J. M. Leeper and paid $1000 to Glenn. Later Mrs. C. G. Hegwood' and Ferry Wilcox, the mother and uncle of Pearl 5. Leeper, brought an action against all the persons named excepting W. M. Glenn, asserting that the deed from Truman Leeper and his wife to his father was in effect, by virtue of an oral agreement, a mortgage given to secure an indebtedness of $2700 owed by the grantors to him, and also two notes of $900 each due from the grantors to the plaintiffs, and that by the transfer of the property they had wrongfully been deprived of their security, whereby a personal liability had arisen against J. M. Leeper and also against Stucker, who had
“If land is conveyed by absolute deed, but with an agreement that the grantee shall effect a sale of it, and out of the proceeds satisfy an existing debt due to him from the grantor, or repay himself for advances then made to the grantor, .and also pay other creditors of the grantor, and account to the latter for any surplus remaining after the payment of such debts and the expenses, it is generally held that the transaction is in the nature of a mortgage, and may be enforced as such in equity.” (27 Cyc. 1004.) . .
The judgment is affirmed.