33 Minn. 362 | Minn. | 1885
Plaintiff borrowed of defendant $3,000 for 30 days, for which, he gave his promissory note, and conveyed to him the lands in controversy by deed absolute in form, but as security merely. When the note became due plaintiff was unable to pay, and defendant refused an extension, and thereupon, in conformity with the proposition of defendant as alleged in the answer, he surrendered to plaintiff the note, and advanced to him $2,000 more, making in all a sum equal to the value of the land as estimated by the parties, and they jointly executed the agreement set forth in the complaint and admitted in the answer. Subsequently, it appearing that negotiations were pending for a sale and transfer of the legal title of the land by defendant, plaintiff brought this action to have such deed declared a mortgage, and for a redemption of the premises. The court ordered judgment for the plaintiff upon the pleadings, on payment of the whole amount advanced to plaintiff with interest.
The transaction was properly adjudged a mortgage, and the title of plaintiff and his right of redemption, as between the parties, were not divested by the subsequent surrender of the note and the supplementary agreement. The defendant had no right, therefore, before plaintiff’s equity of redemption was lawfully barred, to make an absolute conveyance of the land. Meighen v. King, 31 Minn. 115.
The rights of the parties under the agreement in question, which relates to a division between them of the profits or losses in case of a sale of the property within a given time, it is not necessary to consider. The question here is as to the state of the title and plaintiff’s right to redeem, which this defendant appears to dispute.
Judgment affirmed.
Berry, J., was absent and took no part in this case.
