
    Thomas Russell (Elizabeth E. Russell) substituted as Plaintiff, Appellant, v. Timothy Finn and Joseph Stortz.
    Conditional Sales: contract extending time por redemption. Where a mortgagee, after having obtained title to the property through foreclosure, agreed to reconvey to- the mortgagor on his - payment of the amount due, with costs, within a reasonable time thereafter, and that the mortgagor should have possession during the time, and should pay all taxes on the property, such contract was a conditional sale and not an extension of time within which plaintiff was entitled to redeem; and hence, where plaintiff failed to pay either taxes or interest, he was not entitled to a decree-allowing him to redeem after the expiration of ten years, though he paid the taxes and interest for some years after the agreement was made.
    
      Appeal from Winneshiek District Qourt. — ITon. Á. N. Hobson, Judge.
    Monday, January 22, 1900.
    January 30, 1895, Thomas Russell brought this action for a -decree allowing him to redeem certain land sold on.a foreclosure decree against him, after the time allowed for such redemption, by virtue of an alleged contract between-him and the defendant Finn. He alleges certain payments-to Finn under the contract; asks an accounting therefor, and for use of the land, and that he be permitted to pay the balance found necessary to redeem, and that a deed from Finn to Stortz be set aside and the title vested in plaintiff; He alleges that Stortz purchased with knowledge of' plaintiff’s claim. The defendants answered, denying that there was a contract as alleged, and averring that, it was-other and different, as stated in their answer; that the-plaintiff had failed to comply with the contract as made, had abandoned the same, and was not entitled to redeem. They admit that certain payments were made to Finn, and that Finn conveyed to Stortz October 2, 1893, and deny that Stortz had knowledge of any claim by the plaintiff,. They allege that Stortz made lasting and valuable improvements, and paid taxes, for which an. accounting is asked if decree is rendered in favor of the plaintiff. Plaintiff replied, denying the affirmative allegations of the answer. Thomas Russell died pending this action, and Elizabeth E. Russell, his widow, having succeeded to- his estate by deed and will, is substituted as plaintiff. On hearing had, decree-was rendered dismissing plaintiff’s petition, from which she appeals.
    
    Affirmed
    
      L. Bullís and John McGoolc for appellant.
    
      Willett & Willett for appellee.'
   Given, J.

It will be seen Jrom the foregoing statement of the pleadings that the first issue to be determined is whether the contract was as alleged bv the plaintiff, or-as alleged by the defendants. In doing this, we first notice the following’undisputed facts: On October 24-, 1885, the-lands in question were sold by the sheriff, under a decree of foreclosure against Thomas Russell for eight hundred and fifty-seven dollars ^and eighty-seven cents, — -the amount’ of the judgment-, interest, and costs, — to Frank P. Adams. Prior to September 14, 1886,’Frank P. Adams assigned the sheriff’s certificate to the defendant Finn; and on October 26, 1886, Finn received a sheriff’s deed thereunder, which was duly recorded. On October 2, 1893, Finn conveyed the land to the defendant Stortz by warranty deed,, for the recited consideration of two thousand three hundred dollars, and Stortz has since been in possession as owner. On September 14, 1886, and again on October 24, 1886,— being the last day for redemption,' — Mr. Russell and Mr-Finn had negotiations in respect to said redemption; and on said fourteenth day of September Finn executed and delivered, by George P. Painter, who ivas acting for Mr. Russell, a writing as follows: “Received, Decorah, Sept-14th, 1886, of George P. Painter, $15.00, to anply on Thos. Russell’s interest; also, agree to let him or Thomas Russel have use or redeem Thomas Russell land if interest and taxes are paid wdieh due. (Signed) Tim Finn.” Plaintiff’s claim is that on said fourteenth of September, 1886, Mr. Russell informed Mr. Finn of his intention to borrow money to redeem the land; that Finn told him he did not want the money, — for him not to go to the trouble and expense of- borrowing, — and offered as follows: “That he would take the sheriff’s deed, and let the debt stand on the land, and that plaintiff might take further time to redeem, ■ — as much as he desired (ten years or more), — and retain possession of the land, and have the use of it free, only on these conditions: (Paragraph 13) That said plaintiff should pay the interest on the eight hundred and thirty-five dollars and eighty-five cents annually, at eight per cent-, per annum, ■and (paragraph 14) pay all taxes accrued or to accrue, and (paragraph 15) by Oetofber 24, 1886, pay all costs of foreclosure, and the interest accrued to that date.” Plaintiff alleges that Mr. Russell accepted the said offer, and on the same day, and in pursuance of said agreement, paid twenty-two dollars and eighty cents back taxes on the land, and the fifteen dollars receipted for, to apply on accrued interest, and thereafter paid to Mr. Finn one hundred and twenty-two dollars and two cents in payment of the costs of said foreclosure, which sums were in full of the amount then due, and thereafter paid the interest as the same accrued for the years 1886 to 1891, inclusive. Defendants, in their answer, state the agreement as follows: “That, shortly prior to the expiration of the time for redemption from the foreclosure sale mentioned in plaintiff’s petition, plaintiff informed the defendant' Timothy Finn that he was unable to redeem the land in question, and regretted losing his old home; and said defendant then said to him if he wanted the property for a home, and no other purpose, he would give him a reasonable time in which to redeem it, provided he would in a reasonable time pay him the amount it had cost him, including interest at ten per cent, from date of sale, and in the meantime pay said defendant on the amount of said cost, torwit, one thousand fifty-three dollars and sixty-five cents, interest at the rate of ten per cent, per annum, payable annually as soon as due, and also pro» vided he pay the taxes due and unpaid, and all taxes subsequently levied, when due; but on failure- to p-ay .said principal in a reasonable time, and to pay the interest and taxes as aforesaid, the said agreement to permit a redemption as •aforesaid should be at an end. In the meantime plaintiff might retain the possession (he was then in possession)' of said premises.” The material differences between the parties .as to' what the agreement was are as- to the rate of interest to be paid, the amount upon which it was to be paid, and the time within which principal and interest were to he fully paid. Ten per cent, was a usual rate exacted as interest at that time, and, adding ten per cent interest per annum from the date of sale to the amount paid for the land, it had cost Finn one' th.ousa.nd fifty-three dollars and sixty-five cents. Therefore we are inclined to the view that ten per cent, on this amount was the agreement. It would certainly he unusual that Finn should extend the time of payment ■for ten. years, or as much longer as Hr. 'Russell might desire. It is more reasonable to believe that a reasonable time only was allowed. But, to these matters as they may, the real ■contenti oh is whether the agreement was upon a condition that Russell should pay the interest agi-eed upon, and the taxes when due, pending the- period for which credit was •extended.

Appellant contends that, as the period for redemption •was extended, Finn did not have title to the land, and ■therefore the transaction was not a conditional sale; that tlip indebtedness secured by the mortgage remained, as secured thereby; and that Finn held tbe property in trust as security •for bis debt. This contention is answered by tbe fact that, according to appellant’s own statement, Finn Avas to take “the sheriff’s deed. While it is time that the amount required to redeem Avas the basis of the agreement, the agreement Avas evidently a sale of the land on the condition that plaintiff should pay the interest agreed upon, and all taxes accrued •or- to accrue, at maturity, -and the principal Avithin a reasonable time. That he failed to pay the taxes when due, appears in the petition; lie not having paid any taxes after the year 1891. It is also apparent that he failed to pay the interest at maturity. Thus viewing the contract it is clear that the plaintiff is not entitled to the relief demanded, and that the petition was properly dismissed. — Affirmed. •

Granger, O. I., not sitting.  