Manhattan State Bank v. Wamego State Bank

Citations

• 103 Kan. 865
• 176 P. 658
• 1918 Kan. LEXIS 407

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Mortgagee in Possession — Right to Compel Junior Incumbrancer to Redeem. A senior incumbrancer of real property, who is in possession under circumstances which make it equitable, may maintain an action against a junior incumbrancer to compel the latter to redeem the property from the claim of the former, and the court may decree that unless the junior incumbrancer elects to redeem within a proper time he may be barred of his lien, and the title of the senior incumbrancer may be quieted against him.</p> <p>2. Same — Minimum Time for Redemption — Qusire. Whether under the circumstances disclosed in paragraph 1 of the syllabus some statutory provision establishes a minimum time for redemption, not being urged, is left undecided.</p> <p>3. Same — Legal Title Acquired by Mortgagee — Merger. Rule followed that where the equitable rights of the holder of a mortgage, who afterwards procures the fee title of property, require that those interests be kept separate, the mortgage and the fee title do not merge against the will of the holder.</p> <p>4. SAME — Form of Action to Compel Junior Mortgagee to Redeem. It is immaterial whether such an action be characterized as a suit in foreclosure or an action to require redemption under penalty of being debarred for failure to redeem, if the facts alleged and proved are sufficiently comprehensive to fit either case, and a judgment which substantially accords with either theory will be upheld.</p>