Warder v. Enslen

Sharpstein, J. This is an appeal from a judgment, and the contention of appellant is that the facts found by the court below are insufficient to support the judgment. It is an action to redeem a mortgage. Substantially, the court found that the plaintiff, being indebted to the defendant in the sum of $12,440.38, for the sole purpose of securing the payment of said indebtedness, executed and delivered to defendant, August 29,1874, an instrument in form of a deed absolute, purporting to convey the premises described in the complaint, which was made by the plaintiff and accepted by the defendant as security for the payment of said sum of money, and for no other purpose whatsoever.

“ Simultaneously with the execution and delivery of said instrument, and on the same day, to wit, the twenty-ninth day of August, 1874, the plaintiff and the defendant made and entered into an agreement, by the terms of which the defendant agreed to and with the plaintiff that whenever the plaintiff could sell the above-described land and premises for ¿ sufficient sum of money to pay the defendant the amount of the aforesaid indebtedness, to wit, the sum of $12,440.38, that then the defendant would, on demand, reconvey to this plaintiff the whole of said land and premises on payment to the defendant of said sum of $12,440.38.

“And the plaintiff at the same time promised and agreed upon his part'that whenever he could sell said land for a sufficient sum to pay said indebtedness to the defendant, he would, on demand of said defendant, sell said land and pay said indebtedness and redeem said land. And it was then and there further mutually agreed by and between the plaintiff and the defendant that until the sale or redemption of the said land, the defendant should have and receive the rents and profits, use and occupation, of the said land and premises, and that the same were and should be deemed equal and equivalent to any and all interest that might or could accrue [293]upon said sum of $12,440.38; and the defendant further agreed to pay all taxes upon, and the cost of all necessary repairs, and the insurance of the improvements on the said premises; and the defendant, in consideration of having and receiving the use and occupation, rents and profits, of said premises, agreed that the same should be in full payment of said interest; and defendant further agreed, for a valuable consideration on the part of plaintiff, that he would pay and discharge said taxes, make said repairs, and would at all times keep said improvements fully insured.