Shup v. Moon

Citations

• 80 Kan. 498
• 103 P. 1001
• 1909 Kan. LEXIS 101

Syllabus

<p>• SYLLABUS BY THE COURT.</p> <p>1. Trusts and Trustees — Resulting Trust. Two parties, one-as principal and the other as surety, borrowed money at a bank to promote a business transaction in which they were both interested. The money was used to discharge the obligation of a third person, who indemnified the principal with a real-estate mortgage, the principal expressly agreeing with the surety that the proceeds of the mortgage should be used to-satisfy their obligation to the bank. It became necessary to realize on the mortgage and the principal placed it in the-surety’s hands for- foreclosure. Suit was brought in the-principal’s name, a judgment foreclosing the mortgage was duly rendered, at the sheriff’s sale the land was bid in for the-surety, and in due time a sheriff’s deed issued to the surety. The surety entertained no purpose to defraud the principal,, and immediately upon receiving the sheriff’s deed offered to-vest full title in the principal if the principal would satisfy the bank. This the principal refused to do, whereupon the-surety paid the bank. Held, the surety was not a mere agent of the principal to foreclose the mortgage, was not compelled by any legal duty to bid or take a conveyance in the name of the principal, committed no fraud in taking title jn himself, and any equitable remedy the principal may have to obtain title to the land includes the necessity of doing equity by reimbursing the surety.</p> <p>2. - Same. The evidence considered and held to support the findings of fact.</p>