288 P. 555 | Kan. | 1930
The opinion of the court was delivered by
In this action the plaintiff, claiming to be the owner of a tract of land in Cherokee county, asked that he be declared to be the owner of the tract and that his title to it might be quieted as against the defendant, Eliza J. Morgan, who is in possession, claiming ownership. The defendant prevailed, and plaintiff appeals.
After the commencement of the action the Robinson-Patterson Coal Company transferred its rights to Henry Jenkins, by a quitclaim deed, and the litigation has since proceeded in the name of the coal company without the substitution of Jenkins, in accordance with R. S. 60-415. It is conceded that the title was originally in one Durkee, and that on May 5, 1905, he executed a deed to the land to Holmes, which is alleged to have been a mortgage. On June 29, 1911, Holmes conveyed it by quitclaim deed to Sama; that
Although the conveyance of Durkee was in form an absolute deecl i>f conveyance, it was clearly shown to have been in fact a mortgage given to secure the payment of a loan. The loan, it appears, was fully paid and the mortgage lien extinguished. It is well settled that one holding under such an instrument is only a lienholder and the character of the instrument may be established by any competent evidence, parol or otherwise. ’ This rule has been frequently announced and applied. See cases from Moore v. Wade, 8 Kan. 380, to Republic Mut. Fire Ins. Co. v. Johnson, 128 Kan. 323, 278 Pac. 48. The mortgagee or his assigns therefore acquired no title and had no interest of any kind in the land to convey. The instruments of conveyance acquired by each grantee were all quitclaim deeds which by their terms cast a doubt on the title and put purchasers on notice as to the title and as to all outstanding equities and interests in the land. (Johnson v. Williams, 37 Kan. 179, 14 Pac. 537; Lasley v. Stout, 90 Kan. 712, 136 Pac. 249.) None of these holders of the quitclaim deeds ever went into possession of the land, and' the defendant, who procured a tax deed from the county thereon in 1920, has been in possession of it since that time. The court correctly ruled that Jenkins had no title to the land, nor any right to ques
The judgment is affirmed.