Dusenbery v. Bidwell

Citations

• 86 Kan. 666
• 121 P. 1098
• 1912 Kan. LEXIS 362

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Deed — Absolute in Form — Security—A Mortgage. Where a debtor executed to his creditor a deed, absolute in form, which both understood and intended as a security for the payment of the debt, it will be treated as a mortgage with the consequent right in the grantor to redeem.</p> <p>2. MORTGAGEE in Possession — Tax Sale — Certificate—Tax Deed. Where the mortgagee held the legal title and possession of the mortgaged land under an agreement that he would pay the taxes and charges accrued and accruing against the land, and that when a purchaser was found and a .transfer made he would take from the proceeds the amount of the debt due him and the mortgagor should have the remaincler of the proceeds, and, thereafter, the mortgagee failed to pay the taxes, and later purchased the land at a tax sale, his purchase, in effect, constituted a payment of the taxes, although he procured the certificate of sale and tax deed to be issued in the name of another.</p> <p>3. Laches — Redemption—Statute of Limitations — Fraud. Lapse of time is not necessarily laches and laches in asserting a right does not necessarily defeat it. Whether laches is sufficient to bar relief depends on the circumstances of the case, such as the -presence of fraud, intervention of the rights of third parties, delay being induced by the action of the adverse party, disability, death of parties, ignorance of facts or of rights, and change of relations and conditions.</p> <p>4. - Same. Where the mortgagee purchased the land at a tax sale and took the title in the name of another, representing in letters written to the mortgagor, who resided in a distant place, that he had been unable to pay the taxes, that the land had been conveyed by a tax deed to a stranger, that the period of redemption had passed so that the interest of both had been lost, and where, about seven years after the mortgage was given, the mortgagee died, and thereafter the stranger in whose name the tax deed