The following opinion' was filed September 27,1881:
Cole, C. J.
The circuit court found all matters of fact averred in the complaint true as therein stated, but decided that they did not constitute a cause of action, and dismissed the complaint. We are unable to concur in the conclusion of law reached by the learned circuit judge. It seems to us very plain that the plaintiffs were entitled, either to a judgment of Strict foreclosure, as upon a land contract, or to a foreclosure •and sale of the premises. Looking at the allegations of the complaint alone, there may be some doubt as to the natui’e of the contract, and whether Mrs. Goodrich was a mortgagee of the property, or whether she was the absolute owner of the certificate of sale, entitled to the sheriff’s deed, and having the right to treat the property as her own. It is not denied that the certificate was transferred to her by Leslie B. Treat, the purchaser at the foreclosure sale, just before the sheriff’s deed was due upon it. By mistake, it appears, the sheriff subsequently executed a deed to Treat, who afterwards quitclaimed "to the plaintiffs. Mow, whether or not there was a parol agreement between Mrs. Goodrich and the defendants Burms and wife that she should acquire title to the property, and hold it as security for the money advanced in purchasing the certificate, is a matter left in uncertainty by the facts stated in the "complaint.
'The answer avers that this was the real agreement between *536these parties; and if so, the relation of mortgagee and mortgagor existed, under the doctrine of Sweet v.'Mitchell, 15 Wis., 642, and the cases following that decision. There is a fact stated in the complaint which tends to support the answer in this particular. It is the allegation that, on the same day Mrs. Goodrich purchased the certificate, she gave Mrs. Burrus a contract to sell her the property upon the latter paying the sum of $2,588 and interest at the time and in the manner specified. It is possible that in this transaction Mrs. Burrus dealt with Mrs. Goodrich as a stranger to the title; but the more probable inference to be drawn from all the circumstances is, that there was in fact some such agreement as is set forth in the answer. In that case Mrs. Goodrich would hold the property by way of mortgage for the amount which she advanced to pay Treat. In a case,of doubt as to the real character of the transaction, we should probably hold that the mortgage relation existed, rather than that the title was in the estate subject to contracts of sale. One or the other alternative seems to us certainly true. Either the estate of Mrs., Goodrich has a mortgage interest in the property ^ for the amount due it, or the equitable title was in Mrs. Goodrich at the time of her death, subject to any rights Mrs. Burrus might have in the property by reason of the land contracts executed to her. Of course, the conveyance of the legal title to the executors, after Mrs. Goodrich’s death, would be for the benefit of the estate which they represented. The executors would take the legal title merely as trustees.
In Musgat v. Pumpelly, 46 Wis., 660, this court was called upon to construe an instrument relating to personal property, which upon its face was of a doubtful character. It was uncertain whether.it was intended by the parties who executed it to be a conditional sale or a chattel mortgage. Mr. Justice Taylor says that in a case "of doubt, and in the absence of testimony explanatory of the circumstances under which the agreement was made, the rule is well settled that the contract *537should be treated as a chattel mortgage rather than as a conditional sale. We are inclined, therefore, to adopt the same rule here. And, as it is somewhat doubtful, upon the allegations of the complaint, what were the true relations existing between Burrus and wife and Mrs. Goodrich at. the time of her death, we are disposed to adopt the theory of the answer, and hold that it was a mortgage relation. In that view, of course, the plaintiffs were entitled to a judgment of foreclosure and sale of the property. We can perceive no good reason for denying all relief whatever and dismissing the complaint. In any possible view which can be taken of the case, such a judgment seems to us unwarranted. And, as the answer in effect admits that Mrs. Goodrich held the title merely by way of security for money advanced, the plaintiffs are entitled to a judgment of foreclosure and sale for the amount which may be found due the estate.
By the Court. — 'The judgment of the circuit court is reversed, and the cause remanded' with directions to enter a judgment in conformity to this opinion.
Cassoday, J., took no part.
.A rehearing was denied December 13, 1881.