Robertson v. Moline, Milburn & Stoddard Co.

Given, J. i. execution tfonWIraní' tfme? ' I. Under the Code, one year from the day of salé is given in which to redeem real estate sold upon execution. The right to redeem, is given exclusively to the defendant for the first six months; then to his- creditors having liens in common .with the defendant,, and as between each other for the next three - months;. and to [466] the defendant exclusively for the last three months. See sections 3102-3105. Section 3123 is as follows: “The rights of a defendant in relation to redemption are transferable, and the assignee has the like power to redeem.” This court has held that the vendee of an execution defendant is considered as within the meaning of the term “defendant,” as used in said sections, and that he may redeem as such. Thayer v. Coldren, 57 Iowa, 110. The redemption in question was not made until after the three months allowed to creditors. It was not made until the last day of the year. The appellee claims the right to redeem at that time, not as a creditor, but as assignee and vendee of the execution defendant under the deeds mentioned. The appellant contends that, said deeds being given solely as security, they have no other effect than a mortgage, and therefore the appellee is a mere creditor, and only entitled to redeem as such. There is no question but that if those deeds were in fact absolute, as they purported to be, they would convey to the appellee the same rights to redeem that the execution defendant had, namely, to redeem at any time within one year from the day of sale. According to the petition, they are not absolute, but were given for the sole purpose of securing the indebtedness owing by Mr. Meredith to the' appellee, “and for no other purpose.” This court and the courts of this country have very generally held that a conveyance of real estate, absolute on its face, may, by proper evidence, be shown to have been intended to operate as a security, and when so shown it is regarded as a mortgage, and the rights of the parties enforced accordingly. Trucks v. Lindsey, 18 Iowa, 504; Key v. McCleary, 25 Iowa, 191; Green v. Turner, 38 Iowa, 112; 6 Am. & Eng. Encyclopedia of Law, 675. The appellee does not' question the rule just stated, but contends that the conveyance to Smith is shown in [467] 'the petition to have been in trust; that his conveyance 'to the appellee was a transfer of the trust; that it was the privilege and duty of the appellee, as trustee and holder of the legal title, to protect the trust estate by redeeming; and that it might do so as trustee at any time within the year. Concede that the conveyance to Smith was as trustee, yet, according to the petition, it was as security, and, therefore, under the law, but a mortgage. A mortgage is not an estate in the land, but simply a specific lien or charge thereon. Newman v. De Lorimer, 19 Iowa, 244. Smith did not have an absolute assignment, and, therefore, he was not a vendee of the defendant, within the meaning of the statutes we have referred to. If Smith was a trustee, the trust was 'terminated by his conveyance to the appellee. The appellee took no greater rights than Smith had, which were the rights of a mortgagee. Taking, as we do, for ‘the purposes of the demurrer, the allegations of the. petition to be true, we think they show that the appellee is but a mortgagee. If the Merediths had executed a mortgage to Smith as trustee, or directly to the appellee -as a security, it would hardly be claimed that the appellee could redeem otherwise than as a creditor, and yet, under the allegations of the petition and the law, these conveyances were but as a mortgage. We are of ■opinion that, under the facts as alleged, the appellee had the right to redeem as creditor only. 2.. —: —: purquestfonrigRt. II. The appellee contends that the appellant is not entitled to question the character of the conveyanees from the Merediths to Smith, and from Smith to the appellee; that he is a stranger to said conveyances, and had no estate in the lot, but a mere lien thereon, which he has exhausted, and of which he gets the full benefit by the redemption. When the appellant purchased said lot at the sale on execution, he took it subject only to redemption from the sale by the penons and in the manner authorized [468] by statute. If those entitled to redeem failed to do so. within the time and in the manner provided, the lot became his absolutely. He might surely question the right of one not authorized to redeem to do so, and ask that an attempted redemption be set aside as a cloud upon his title. For the same reasons he may question a redemption by one authorized to redeem, who does, not do so within the time allowed. Our conclusion is that the demurrer should have been overruled. Reversed.