Billings v. Atherton , 27 Iowa 566 ( 1869 )

Wright, J.

This case turns entirely upon the facts; as to the law there can be no disagreement. If plaintiff’s theory is the correct one, then defendant was but a mortgagee, holding this land as security for the money advanced, and should surrender the same upon the payment of the debt.

If defendant is correct in his assumption of the facts, then it might be conceded that there was such negligence and delay on plaintiff’s part, in view of what defendant insists was the contract, as to defeat his right to a specific performance. But, as plaintiff neither in his petition nor by his testimony claims otherwise than upon the theory that this was an equitable mortgage, we may confine ourselves to this view of the case.

From the testimony, our opinion is, that the court was j ustified in finding the main fact for plaintiff. We believe that the. transaction amounted to a mortgage; that it was so understood, and that plaintiff was therefore entitled to redeem.

We further find, however, that defendant was entitled to more than the amount of the bid, or the amount paid at the sale of the land by the trustee. The proof does not satisfy us that the transaction was tainted with usury. And, while the parties differ widely as to the exact contract, we believe the truth to be that the money was to be repaid, with interest, on the basis of the rental value of the premises, estimated at $40 per annum, less the taxes. This would place the interest at about (10) ten per cent. This, too, we think, is fairly in accord with the real contract or understanding between the parties; and, as shown by the testimony, looking at it in all its bearings, it effectuates justice.

The court should therefore have required plaintiff, as a condition precedent to the making of the deed by defendant, to pay ten per cent on the $813.87 from the date of the purchase, on February 25, 1861.

The judgment below is therefore affirmed, but the case will be remanded for this modification — said sum to draw this interest until payment of the balance, which must be by a short day to be fixed by the court.

The costs of this appeal to be paid by appellee.

Affirmed as modified.