Barteau v. Merriam

Gileillan, C. J. July 14, 1887, one Barrett, the owner of a lot, executed a mortgage on it to one Daley. July 15th Barrett conveyed to plaintiff an undivided half of the lot, subject to Daley’s mortgage, and on the same day executed to defendant a deed absolute in terms of the other undivided half. As found by the court below, this was executed to secure a loan of $3,500 by defendant to Barrett, and at the same time defendant executed to him a contract under seal, agreeing to reconvey to him, on being paid, six months from the date, the $3,500, and interest. December 4, 1889, Daley assigned his mortgage to defendant, and the latter, February 4, 1890, foreclosed it under the power of sale, and himself became the pur [224] chaser. The absolute deed to defendant was recorded July, 1887, and the contract to reconvey was recorded January 26, 1889. February 4, 1891, the plaintiff,-then knowing the nature of the transaction between Barrett and defendant, offered to redeem from the latter by tendering him one half the amount of the price at which he purchased at the foreclosure, with interest on that half, and, he having refused the tender, she brings this suit for partition. The deed from Barrett to defendant, being only a mortgage, did not create between the latter and plaintiff the relation of joint tenants or tenants in common, or any relation out of which could grow any of the duties or disabilities which attach to cotenancy. He was therefore as much at-liberty as any stranger to buy in, hold, and enforce any outstanding lien. Order affirmed. (Opinion published 53 N. W. Rep. 1061.)