Haag v. Baker

Citations

• 78 Kan. 437
• 97 P. 473
• 1908 Kan. LEXIS 82

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgages — Foreclosure—Purchase by a IAen-holdeo — Constructive Trust. Where a tract of land is encumbered by four mortgages to separate mortgagees, and the holder of the first mortgage brings a suit, to which all are made parties, and therein obtains a decree of foreclosure and order of sale barring all subsequent lien-holders, and where thereafter the holders of the third and fourth liens assign their mortgages to the holder of the second lien to procure a stay of the sale and arrange for the payment of the judgment, and the second lien-holder makes the contemplated arrangement in good faith and pays a part of the judgment, but fails, without fault on her part, but through inability, to complete the payment, and the holder of the first lien proceeds to sell the land under the judgment, and the holder of the second mortgage, in fair competition, buys the land at the master’s sale and receives a master’s deed therefor upon the confirmation of the sale, held, that by such sale the holders of the third and fourth liens are devested of all their interest in the land and the relation of trustee and cestui que trust does not exist between the purchaser and such former lien-holders.</p> <p>2. - Rights of Mortgagor. Where, in such a case, the original owner and mortgagor of the land has, prior to the commencement óf the foreclosure suit, made a deed of the land to the holders of the second and third liens, which deed is really a mortgage to secure his indebtedness, his rights to the land are also foreclosed by the suit, he being a party thereto, and he is not entitled to an accounting in an action to recover the stipulated rent by the purchaser, from whom he has rented the land after the sale.</p>