Hunter v. Coffman , 74 Kan. 308 ( 1906 )

The opinion of the court was delivered by

Porter, J.:

Two of the findings of the court are challenged as not supported by any evidence. They are as follow:

“ (4) The court finds that in the month of February, 1898, there was an accounting had between the said Coffman and the said Hunter, and that at that time there was due the said Hunter $670; that the said Coffman, being anxious to keep the debt from increasing, agreed that the said Hunter should from that time on receive the rents and profits from the land and apply the same on the debt, and that said Hunter did receive the same.”

“(8) That the said Coffman and wife did not know until the year of 1903 that the said A. S’. Hunter, or the administrator of his estate, or the heirs of the said Hunter, or any of them, were making any claim to the fee-simple title to the land in question, but had always supposed and believed that they and each of them regarded the said warranty deed only as a mortgage, and as a security for the debt due from Coffman to Hunter.”

We have examined the record carefully and are satisfied that there is ample evidence to warrant each of these findings of fact. Under the well-established rule the findings of the trial court cannot be disturbed.

There remains but a single question, which'is, after all, the principal one raised by the plaintiffs in error. It is that the statute of limitations begins to run against a bill to redeem the moment the debt secured by the mortgage becomes due. It is urged that the right to foreclose and the right to redeem are reciprocal rights, starting together like two fellows in a foot-race, with a straight course, a five-years’ run, and no favors. In this case we are unanimously of the opinion that, as the court found that Hunter took possession for the purpose of collecting the rents and profits and of applying the proceeds upon the indebtedness, he occupied the position of a trustee, and that no statute of limitations would begin to run against a bill to redeem until his possession became adverse to the owner, or mortgagor. Until there was a renunciation of the trust, or some declaration or act to manifest a claim to hold adversely, there could be no adverse holding. (Reihl v. Likowski, 38 Kan. 515, 6 Pac. 886.) In McPherson v. Hayward, 81 Me. 329, 17 Atl. 164, it was said in the syllabus:

“Where the mortgagee’s possession was under an arrangement with the mortgagor, for him to hold possession of the property, and manage it until he should satisfy his claim from the proceeds, Such possession is not adverse until the mortgagee’s claim is satisfied, or he asserts an absolute title in himself, and gives distinct notice of it to the mortgagor.”

To the same effect see: 2 Jones, Mort., 6th ed., § 1152; Kohlheim v. Harrison, 34 Miss. 457; Knowlton v. Walker, 13 Wis. 264; 1 A. & E. Encycl. of L. 817 and cases cited; Wood, Lim., 3d ed., § 224.

Equity will not permit one who holds as trustee to change the character of his possession into an adverse one by mere silence. The statute, it is clear, did not begin to run until the notice of the adverse holding or denial of the trust was given to the defendant in error, or until he would be by law held to have notice through some declaration or act of Hunter or those claiming under him.

We think the judgment of the court below gave to the plaintiffs in error all that in equity they were entitled to have — a lien for the payment of the taxes and indebtedness. The judgment is affirmed.

All the Justices concurring.