Zinkeison v. Lewis

Citations

• 63 Kan. 590
• 66 P. 644
• 1901 Kan. LEXIS 191

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Subrogation — Payment of Prior Mortgages — Fraud. Where money is loaned to a husband and wife on the faith of a mortgage on land, for the purpose of paying off prior valid mortgages on the same land, and is so used, and it turns out that the husband signed his wife’s name to the mortgage without authority, of which execution she was immediately informed, but, instead of disclosclosing the fraud, she allows the mortgagee to pay off the prior mortgages and to believe that he has a valid security, the holder of such mortgage is entitled to be subrogated to all the rights and interests of the prior mortgagees.</p> <p>2. -Presumption of Law — Limitation of Action. Where money is so fraudulently obtained and used at the instance of the mortgagors to pay off prior valid liens, such liens will be considered to be alive so long as equity and the rights of the parties require; and the holder of the defective mortgage, who had no notice of the fraud or defect until the answers of the mortgagors were filed in a foreclosure action, is not barred by the statute of limitations from asking subrogation to the prior liens, although more than five years have elapsed since they were paid off and discharged.</p>