Charpie v. Stout

Citations

• 88 Kan. 318
• 128 P. 396
• 1912 Kan. LEXIS 60

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Ejectment—Equitable Oral Mortgage—Creditor in Possession. One who had borrowed money from his sister-in-law caused tax titles upon a tract of land to be executed to her sister, who had no interest therein, and then turned over the possession, control and 'management of the tract to his sister-in-law, in pursuance of an agreement that the land should be used to pay the debt. The creditor took and held the actual possession of the land for eighteen years, and improved, cultivated, rented, managed and controlled it openly until her death, at which time it was occupied by her tenant under an unexpired lease. The. tax titles were conveyed to her some time after the agreement was. made, upon the direction o'f the debtor. The debtor, or his wife, to whom a conveyance was made subsequent to the agreement, took possession from the tenant at or before the expiration of the lease, without the consent of the lessor, her heirs or representatives, and without paying or offering to pay the debt-. It is held that the possession so taken was wrongful.</p> <p>2. - Same. The form of an agreement by which security for the payment of money is given is not important, if the purpose plainly appears. Equity regards the substance and gives effect to the intention.</p> <p>3. - Same. A parol agreement to secure the repayment of money already advanced, by a lien or charge upon land, may be enforced by retaining the possession taken in pursuance of the agreement and held for many years thereunder, no steps having been taken to collect the debt.</p> <p>4. - Same. Agreements of the nature above referred to are usually termed equitable mortgages, but the name is not important. If the effect is to create a lien to secure'a debt, possession given to the creditor in pursuance of the agreement may be held under the rules applicable to mortgagees in possession. Equity requires the payment of the debt before relinquishment of the security can be compelled.</p>