
    Yates vs. Yates.
    Mortgage : Deed absolute on its face, with separate contract to reconvey, on payment of money loaned.
    
    A recorded deed of land, absolute on its face, with, an unrecorded contract, executed at the same time, for a reconveyance on repayment of moneys loaned, held to be a legal mortgage.
    APPEAL from the County Court for Milwaukee County.
    Defendant, to secure the payment of money loaned to him, executed to plaintiff a warranty deed of certain lands, and at the same time a contract was executed by both parties for a reconveyance upon payment of said sum of money, in accordance with defendant’s covenant in said contract contained. The d.eed first mentioned was recorded as a deed, but the contract is not alleged to have been recorded. The complaint herein, after stating these facts, prays that said deed and contract may be adjudged to be a mortgage, and that the usual judgment may be entered for the sale of the mortgaged premises, foreclosure of the equity of redemption, and payment by the defendant of any deficiency. A demurrer, for failure to state a cause of action, and for misjoinder of causes of action, was overruled; and defendant appealed.
    
      Jas. Gf. Jenkins, for appellant,
    contended that the complaint showed an equitable mortgage only, and not a legal one; and that the judgment could be, at most, only for a sale unless the 
      
      debt should be paid by a certain day. 1 Hilliard on Mort., 657, sec. 89 ; 2 id., 181, sec. 68; Hughes v. Edwards, 9 Wheaton, 489, 491-2; Powell on Mort., 1060 a; Mowry v. Wood, 12 Wis., 413, 428 ; Jarvis v. Dutcher, 16 id., 307, 316. The decision in Second Ward Bank v. TJpmann, 12 Wis., 499, is not inconsistent with these, and is not applicable here,.because the land contract in this case was not recorded.
    
      Stark & McMullen, for respondent,
    contended that the deed and contract constitute a legal mortgage (Second Ward Bank v. TJpmann, 12 Wis., 499); and the plaintiff is entitled to the relief asked. Laws of 1859, ch. 195, sec. 5 ; Laws of 1862, ch. 243, secs. 2 and 3.
   Downer, J.

The complaint clearly states a cause of action, within all the authorities relating to transactions similar to those therein set out; and the demurrer was rightly overruled.

By the Court. — Order affirmed.  