Foster Lumber Co. v. Harlan County Bank

Citations

• 71 Kan. 158
• 80 P. 49
• 1905 Kan. LEXIS 110

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Oral Agreement — Equitable Lien for Purchase-money. If a lender advance money for the purpose of buying a specific tract of land, upon the oral promise of the borrower to secure its repayment by a mortgage upon the property when title thereto is obtained, and after the conveyance has been procured by the use of the money the borrower refuse to execute the mortgage, equity will regard that as done which the borrower agreed should be done, and which ought to have been done, and will treat the transac- • tion as creating an equitable mortgage upon the land in favor of the lender..</p> <p>2. -Not within Statute of Frauds. The lien so created is not obnoxious to the statute of frauds because it depends in part upon an oral promise.</p> <p>3. -- Notice — Priority of Liens. Such a lien will be given precedence over a mortgage on the land taken by a party who has notice of the rights of the equitable mortgagee.</p> <p>4. -Homestead Rights. Such a lien is superior to the homestead rights of the borrower.</p> <p>5. -Pleading. The petition in this case is held to state a cause of action.</p>