Short v. Fogle , 42 Kan. 349 ( 1889 )

Opinion by

Clogston, C.:

The plaintiff in error now complains that the conclusions of law are not supported by the findings of fact made by the court. The findings of fact show that Eogle was the original owner of the property, and that the mortgage, the subject of his action, was for the purchase-money of the property. Marcoux transferred the property to Towle, subject to this lien for the purchase-money, and subject to Eogle’s mortgage. Towle had actual knowledge of the existence of that mortgage, and assumed it, or took the property subject to it. He executed the mortgage now set up by Short, and informed Robbins of the exact condition of affairs. Towle at this time had but an equitable title to the property. He had what Marcoux could transfer to him — an equitable title only; and at the time of the execution of the mortgage to Robbins he could give Robbins no better title than he himself had. When Robbins transferred his note and mortgage to Short, he could give Short nothing better than he himself had. He told Short, however, that there was another mortgage upon the property. Short made no inquiry to ascertain its standing or condition. He received under the notice whatever title and right Robbins had, and no greater. He stands in the same place that Robbins would have stood had he set up the mortgage instead of Short. We therefore fail to see what legal or equitable right the plaintiff in error has to insist upon a first lien upon this property.

The judgment of the court below is correct, and we therefore recommend that it be affirmed.

By the Court: It is so ordered.

All the Justices concurring.