102 Kan. 231 | Kan. | 1918
The opinion of the court was delivered by
The action was one tó foreclose a real-estate mortgage on property to which the defendant held a deed. The defendant asserted priority of a mortgage to himself, antedating the plaintiff’s mortgage'and the deed. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
In 1909 owners of the property mortgaged it to the defendant to secure payment of a note for $1,000. Through successive conveyances to grantees who did not assume the mortgage, title passed to Della A. Betz, subject to the mortgage.
The plaintiff contends that the defendant by canceling his note and releasing the makers from personal liability, no one else being obligated to pay the debt, forfeited his right to a lien. It is said there can be no mortgage without a debt which is secured, and there can be no debt without a debtor who is obligated to pay. The cases decided by this court in which declarations of this character have been made are collated and urged as controlling. It is not necessary to review them. A former justice of this court was accustomed to say that the doctrine of estoppel applies when it ought to apply. So it is with the declarations referred to, and doubtless they were properly applied in the cases cited. They are not, however, of universal application, and equity has never so regarded them. For the purpose of accomplishing an equitable result, a mortgage lien may be kept alive and enforced after the lien claimant has placed himself in a position which precludes him from resorting to the personal obligation of the mortgagor or any one else for satisfaction of the debt.
“If a mortgagee purchases the equity of redemption and gives up the mortgage note, without intending this to operate as a payment, the mortgage not being discharged, there is no merger or extinguishment of the mortgage, as against an intervening title, as for instance, by levy, judgment, junior mortgage, or conveyance." (2 Jones on Mortgages, 7th ed., p. 397, § 871.)
Among other cases cited in support of this text is that of Coburn v. Stephens et al., 137 Ind. 683. In that case the mortgagee took a quitclaim deed from the mortgagor, under an agreement to release the mortgagor from personal liability, thé mortgage, however, to remain a lien on the premises. It was held that the mortgage remained superior to h mechanic’s lien which attached before the quitclaim deed was delivered. Another case is that of Brooks v. Rice, 56 Cal. 428, in which the deed was taken under an agreement to surrender the notes and mortgages, which was done. The lien of the mortgages was preserved against an intervening mortgage. Another case is that of Shattuck v. Bank, 63 Kan. 443, 65 Pac. 643. In that case the mortgagee took from the mortgagor a quitclaim deed, under an agreement that the mortgagor should not be liable for any deficiency remaining after exhausting the security. A junior incumbrancer claimed priority. Authorities were cited to the effect that even when parties have undertaken to discharge a mortgage, it will be upheld as a lien when it is to the interest of the mortgagee to do so because of some intervening cause, and the decision was that the junior incumbrancer’s position had not been bettered by release of the mortgagor from personal liability.
In one of the authorities cited in the Shattuck case the expression was that a released mortgage would be upheld “as a source of title.” The plaintiff says such a doctrine can apply in those states only in which the common-law theory that a mortgage confers title prevails, and that in this, state a mortgage is merely security. The phraseology employed was, in- • deed, derived from the common law, but the equitable doctrine
The doctrine has been spoken of as equitable. It is equitable, because a junior incumbrancer ought not, in conscience, to reap where he did not sow, to the detriment of another who was innocent of wrongdoing. The doctrine applies with special force to the plaintiff, whose mortgage recited that it was subject to the defendant’s mortgage.
There may be some doubt about the right, of the defendant to claim, in addition to his mortgage, a lien superior to the plaintiff’s mortgage for net expenditures on the property. The findings do not clearly show that the expenditures were limited to protection and preservation of the property, inuring ultimately to the benefit of the junior incumbrancer. (Lumber Co. v. Bowersock, 100 Kan. 328, 334, 164 Pac. 156.) Perhaps as a practical matter the subject is not important, and for that reason the court’s ruling respecting it was not assigned as error.
The judgment of the district court is affirmed.