| Mich. | May 6, 1873
We are entirely satisfied with the conclusions of the circuit judge on the main questions involved in this case. The conveyance of the Barnard House property to the defendants, though by deed absolute in form, was unquestionably by way of security merely, and the complainants were entitled to redeem.
But the allowance to complainants for the rent of the premises while held by defendants appears to us on the evidence to he excessive. We do not think defendants were exactly in the position of ordinary mortgagees who take possession by way of enforcing their security; they were agents of complainants, as well as mortgagees, and for any failure to obtain full rental value for the premises, they are only fairly chargeable on the same grounds that an agent thus put in possession could be. They are charged by the decree with nine hundred dollars rent a year for the whole time they have had control, though it is shown the first tenant was to pay four hundred only, and the third five hundred; and nine hundred seems to us rather above, than below, what the evidence tends to show a fair rent to have been from year to year for the whole period, without taking into account any contingencies in loss of time in renting, or failure in collections, which, in case of such property as a second-class hotel, would be likely to be important. We have no idea from the evidence that defendants have received any such sum; and though in consequence of their failure