Mackey vs. Stafford, imp. amounted only to a mortgage. Ragan v. Simpson, 27 Wis., 355. 5. That, assuming that plaintiff was the absolute owner on the 8th of April, 1876, of the property described in the contract of that date, that contract created substantially the relation of mortgagor and mortagee between plaintiff and Stafford. It gave Stafford the absolute right to a conveyance of all the property and to a discharge of the mortgage here in suit, upon payment of $21,000 and interest. If, at any time between the date of that contract and December 1st, 1876, Stafford had tendered that amount and interest, he would have been entitled to a conveyance, without having done a day's work or sold a single stave. And if he made default in such payment, he still has the rights of mortgagee after default, until the plaintiff has foreclosed his right of redemption under that contract, by an action for that purpose. Button v. Schroyer, 5 Wis., 598; Bull v. Shepard, 7 id., 449; Mowry v. Wood, 12 id., 413; Baker v. Beach, 15 id., 99; Beckwith v. Philleo, id., 223; McIndoe v. Mormon, 26 id., 588. And a temporary abandonment of his right, through ignorance, does not affect the right itself, in the absence of a written surrender of his interest in the land. R. S., ch. 106, sec. 6. P. L. Spooner, of counsel for the appellants, contended, 1. That a mortgagee, selling under a power of sale in the common form, cannot be the purchaser of the property either for himself or for another. Dyer v. Shurtleff, 112 Mass., 165; Litchfield v. Cudworth, 15 Pick., 30; Buffalo S. E. Works v. Ins. Co., 17 N. Y., 403; Pulver v. Richardson, 3 N. Y. Sup. Ct. R., 436; Korns v. Shaffer, 27 Md., 83; Cunningham v. Rogers, 14 Ala., 147, 150; Mapps v. Sharpe, 32 Ill., 13, 22: Hall v. Towne, 45 id., 493; Griffin v. Marine Co., 52 id., 130; Roberts v. Fleming, 53 id., 196; Robertson v. Norris, 1 Giff., 421. The mortagee in such a case is trustee of the mortgagor for the sale of the property, and stands upon the same footing as other like trustees. Downes v. Grazebrook, 3 Merivale, 200; Howard v. Ames, 3 Met., 311; Blakeslee v. Rossman, Mackey vs. Stafford, imp. ante, p. 116. 2. That it was clear from the undisputed facts in evidence, that the sale of the Reedsburg property covered by the chattel mortgage was a sale to the plaintiff himself, and his son was only a nominal purchaser. 3. That it was also clear from the evidence that said sale was not a fair or bona fide sale, conducted with a view to obtaining the highest price that the goods would bring, but was made for a much smaller sum than had just been offered for the goods and declined by plaintiff's advice, although there is no pretense that staves had fallen in value, but the proof is that the market was advancing; and that such an unfair or fraudulent sale of mortgaged property by the mortgagee will not defeat the mortgagor's equitable rights. Dyer v. Shurtleff and Howard v. Ames, supra; Matthie v. Edwards, 2 Coll., 480; 2 Green Eq. (N. J.), 45; Bronson v. Kinzie, 1 How., U. S., 321, per TANEY, C. J.; Montague v. Dawes, 14 Allen, 369; Pettibone v. Perkins, 6 Wis., 616. 4. That, "if a mortgagee use the power his mortgage may have given him, to obtain the equity of redemption at less than its value, and for less than others would have given for it, a court of equity will hold the transaction a mortgage, and permit the mortgagor to redeem " (Goodman v. Pledger, 14 Ala., 118; Holridge v. Gillespie, 2 Johns. Ch., 30); and that, under this rule, the bill of sale of the property at La Valle cannot stand in a court of equity. 5. That the weight of the evidence is, that plaintiff led the mortgagors to believe that the sale under the chattel mortgage was a mere form to save expense and put the property in such a position that he could handle it better, in consequence of which belief they made no effort to have competition at the sale; and that he also led them to understand, at the time of the execution of the bill of sale and deed, that they would be at liberty to redeem, and that the papers were executed only as necessary legal forms. J. W. Lusk, for the respondent, contended upon the evidence, that the several sales were valid and were understood Mackey vs. Stafford, imp. by all parties, at the times thereof, as absolute, although the evidence on both sides shows that after such sales plaintiff repeatedly expressed his willingness to transfer the property to either of the mortgagors or to any other person, if he could be properly secured for the money he had in it; that the terms of the bill of sale of the La Valle property, in the careful provision defining and limiting plaintiff's rights as to the use of the mill premises at La Valle for storage of the staves, were entirely inconsistent with the idea that the sale was regarded as a mere change in the form of security, and the property as still belonging to the mortgagors; that the agreement of April 8th expressly acknowledges the validity of the sales, and plaintiff's absolute ownership of the property therein described, and proceeds throughout upon the assumption that the firm had no right of redemption, while it secured to Stafford individually a right to obtain the whole property for himself upon compliance with the conditions there named. To the point that the written instruments would be regarded as expressing the real contracts of the parties, except upon the clearest proof of the contrary, counsel cited Newton v. Holley, 6 Wis., 604; Lake v. Meacham, 13 id., 362; Kent v. Lasley, 24 id., 654; McCellan v. Sanford, 26 id., 595; Sweet v. Mitchell, 15 id., 661; Hileman v. Wright, 9 Ind., 126; Brown v. Carson, Busbee's Eq. (N. C.), 272; Day v. Seely, 17 Vt., 542; Story's Eq. Jur., § 152. He further argued that Stafford could not now claim in this action a right to redeem under the agreement of April 8th, for the reason, among others, that no such claim was made in his answer, or litigated at the trial. Whiting v. Gould, 2 Wis., 552-587; Sweet v. Mitchell, supra; Larkin v. Noonan, 19 Wis., 82; Stevens v. Brooks, 23 id., 196; Johnson v. Filkington, 39 id., 62; Newton v. Allis, 12 id., 380; Story's Eq. Jur., § 257. ORTON, J. On the 25th day of February, 1875, the defendants J. P. Stafford and W. I. Carver, with their wives, exe Mackey vs. Stafford, imp. cuted a mortgage to the plaintiff Mackey, of certain real estate in and about the village of Reedsburg, in Sauk county, to secure the payment of any sums of money that might from time to time be due and owing from them or either of them to the plaintiff; to foreclose which mortgage, this action is brought. On the 26th day of March, 1875, the defendants, as further and collateral security, executed a chattel mortgage on certain staves, broom handles, stave and broom-handle stock, stave machinery, etc., in and about a mill at La Valle in said county; and on the 3d day of April, 1875, another chattel mortgage, for like purpose, on certain staves and heading, and stave and heading bolts, in and about a mill at Reedsburg. After default in payment by the defendants, the plaintiff, on due notice, sold at public auction the property described in the last named mortgage, on the 25th day of January, 1876, to one F. J. Mackey, the son of the plaintiff, who was the only bidder on the same, for the sum of $4,000; and on the 27th day of January, 1876, the defendants sold to the plaintiff the property described in the first named chattel mortgage, for the sum of $4,500, and executed therefor a bill of sale under seal, of that date, in which the purpose of the sale is stated in the following language: "Whereas, there is more against said property now than the same is now worth, and to avoid any further expense in selling and disposing of the same, now, in consideration of $4,500, to be allowed and indorsed on the claims of J. Mackey against us, we hereby sell," etc. On the same day, the defendants also sold and conveyed to the plaintiff certain real estate, which formed a part of the mortgaged premises, for the agreed price of $3,000. These several sums, together with the sum of $649.72, realized by the plaintiff on some other collaterals, were indorsed as payments on the mortgage; and the circuit court computed the amount remaining due upon the mortgage, after deducting these several sums from the sum admitted by the answer to be due upon the mortgage, and rendered judgment accordingly. Mackey vs. Stafford, imp. The appellants, in their answer, claim that these several sales were colorable only, and as a mere change in the form of the security, and not designed or intended to cut off the right of the defendants to redeem; and pray for an accounting by the plaintiff, and that they may redeem on payment of what remains due upon such accounting. The answer is made by the defendants J. P. Stafford and wife, the appellants, and the defendant Carver does not appear. The plaintiff, by replication, denies that said sales were colorable only, and alleges that they were all absolute, in good faith, and for an adequate consideration. The paroi agreements and verbal understandings set up and insisted upon by the appellants as showing that these sales were not absolute, depend upon the testimony of the defendant Stafford almost exclusively, and are most positively denied by the plaintiff. They were followed by a complete change of the possession of the property. The bill of sale in one case recites the purpose to be an absolute sale, and to save the expense of foreclosure. The suspicious delay of the defendant Stafford in claiming any right of redemption, until informed by legal counsel that he had such right, in the spring of 1877, and the full disclaimer of any such right at all times by the defendant Carver, tend very strongly to show that no such right was reserved. The writings and deeds between the parties must be taken to contain the real contracts, upon the subjects embraced therein, until the contrary is established by the clearest proof (Newton v. Holley, 6 Wis., 604); and this court has well said, in Lake v. Meacham, 13 Wis., 362: "Courts cannot interfere with such contracts when any part of the foundation for the relief rests upon conjecture or mere probability of fact, but the whole must be cleared of reasonable doubt, and be sustained by solid and convincing testimony;" and courts will not adjudge a deed absolute on its face to be a mortgage, without the same degree of proof. McClellan v. Sanford, 26 Wis., 595. |