#### Falbe and another, Respondents, vs. Caves, imp., Appellant.

*October 9*

October *29, 1912.*

*Execution: Sale: Redemption by mortgagee: Absolute deed as a mortgage: Tender: Evidences of right: Waiver of defects: Filing of papers: Costs: Discretion: Appeal: Questions considered.*

1. In an action to enforce a right to redeem lands from an execution sale, a defense that plaintiff had parted with his title, not sustained by any evidence, cannot be considered on appeal.

2. A deed absolute in form, but given to secure the payment of moneys due from the grantor to the grantee, with a contemporaneous contract to reconvey on. payment of the debt, establishes the relation of mortgagor and mortgagee between the parties.

3. To entitle a mortgagee to redeem, under sec. 3007, Stats. (1898), from an execution sale, it is not essential that he should have been such mortgagee at the time the sale was made. [Whether one who takes a mortgage after the expiration of the year limited for redemption by the execution debtor can redeem under said section within fifteen months from the date of sale, not determined.]

4. Where, when one entitled seeks to redeem land from an execution sale, the purchaser makes no objection to the papers or proofs presented, but rejects the money tendered on the ground that the offer comes too late, he thereby waives any informality or defect in such proof.

5. When the money required to redeem from an execution sale is properly tendered by one who brings himself within the statute, the redemption is complete, and it is not defeated by his failure to file the evidences of his right in the office of the register *55of deeds as prescribed by sec. 3015, Stats. (1898); that provision being for tbe protection of third persons.

6. It was not an abuse of discretion to award costs to a successful plaintiff in an equitable action to enforce a right of redemption from an execution sale, where no objection was made to the form of the action, and the defendant interposed an equitable counterclaim, and the case was tried before the court as an equity action, although the desired relief might have been otherwise obtained.

Appeal from a judgment of tbe circuit court for Marquette county: A. H. Reid, Judge.

*Affirmed.*

Tbe plaintiff *Bidder*claims that on and after June 5, 1903, be was tbe owner of an undivided one-balf interest in certain real estate; that bis interest therein was sold by a judgment creditor on an execution sale on October 18, 1904; that before tbe expiration of one year from tbe date of said sale be conveyed bis interest to his eoplaintiff, *Falbe,*as security for a loan, and that thereafter tbe relation of mortgagor and mortgagee existed between the plaintiffs; that within tbe fifteen months in which *Falbe*might redeem tbe premises from tbe execution sale be tendered to tbe defendant *J. 0. Caves,*who was the purchaser at such sale, tbe amount necessary to redeem, and at tbe same time offered to submit proofs showing that be was a mortgage creditor and entitled to redeem; that such tender was refused, and that thereupon *Falbe*deposited tbe amount thereof in a bank and notified tbe defendant *Caves*that tbe money was on deposit and subject to bis order, but that *Caves*refused to receive tbe same. Among other relief tbe plaintiffs prayed that the sheriff of Marquette county be adjudged to issue a certificate of redemption to tbe plaintiff *Falbe*and that tbe defendant *Caves*be adjudged to release to such plaintiff, by tbe execution and delivery of a proper deed, an undivided one-half interest in and to tbe premises in suit, on payment of the amount which defendant was entitled to receive.

Among other things the answer denied that *Bidder*owned *56any interest in tbe premises when tbe conveyance was made to *Falbe;*denied tbat *Falbe*was in fact a mortgage creditor or tbat be became sucb witbin one year from tbe date of tbe sale on execution; denied tbat any legal tender was made to tbe defendant; and generally put in issue tbe material allegations of tbe complaint.

Tbe court found all of tbe disputed issues in favor of tbe plaintiffs. It was contended on tbe trial tbat *Falbe*did not make a good redemption because be failed to present to Caves, at tbe time of tbe tender, tbe proofs required by sec. 3015, Stats. (1898), to show tbat be was a mortgage creditor and entitled to make tbe redemption. In reference to tbis contention tbe circuit court found tbat *Caves*made no objection to tbe effect tbat *Falbe*bad not presented sufficient proof of bis interest as a mortgage creditor or tbat be bad failed in any way to comply with tbe requirements of tbe law in respect thereto, but tbat be objected to tbe .right of said plaintiff to redeem solely on tbe ground tbat tbe time limited therefor bad expired, making no other objection and raising no other question, and declining to look at or read tbe proofs furnished as to tbe relationship between tbe plaintiffs, thereby inducing *Falbe*to believe tbat no question was raised as to tbe sufficiency of the proof of sucb relationship. Tbe court further found tbat tbe defendant *Caves*waived any defects there might be in tbe proof offered to show tbat tbe plaintiff *Falbe*was a mortgage creditor, and estopped himself from claiming tbat tbe proofs which *Falbe*bad with him to show tbat fact are or were faulty or defective. From a judgment in plaintiffs’ favor tbe defendant *Caves*appeals.

*D.*W. *McNamara-,*for tbe appellant.

*Daniel H. Qrady,*for tbe respondents.

BabNes, J.

Tbis appeal involves tbe following questions: (1) On October 18, 1904, was tbe plaintiff *Blader*tbe owner of an undivided one-balf interest in tbe property involved in *57this suit, and thereafter until he conveyed to his coplaintiff, Faibe, subject to the lien of the certificate of sale on execution which had been issued to the defendant *Gavesf*(2) Did the plaintiff *Faibe*become a mortgagee of the premises? (3) If so, did he become such mortgágee in time to entitle him to redeem the premises from the execution sale within fifteen months from the date thereof under the provisions of sec. 3007, Stats. (1898) ? (4) Did *Faibe*in fact redeem said premises from said sale?

1. The appellant insists that the plaintiff *Blader*conveyed the premises in suit to his brother on March 4, 1903, for the purpose of defrauding his creditors; that such deed was declared to be in fraud of creditors in a suit brought by the Dowagiac Manufacturing Company to set the sale aside; that although said deed was set aside in form, it was good between the parties thereto and as to all persons except creditors, and that *Blader*had no right, title, or interest to convey when he executed the deed to his coplaintiff, Faibe, on October 18, 1905. Counsel’s position is that the judgment declaring the conveyance to be fraudulent did not operate to transfer back to the plaintiff *Blader*any title which he had conveyed away, and a large portion of his brief is devoted to a discussion of this proposition and to the citation of authorities sustaining the arguments advanced. The question is not in the case. No proof was offered either showing or tending to show that *Blader*ever conveyed the land to his brother or that any action was brought to set such conveyance aside. The appellant in his answer alleged that such a deed was given, and set forth the pleadings in the action brought to set the same aside and the findings and judgment of the court. However, the judgment roll in the case was not offered on the trial, and neither was any other evidence offered that we are able to find which established the fact that a conveyance was made. Apparently the defendant lost nothing by failure to make this proof. The findings of the court set up in the answer expressly find that *58the deed in question was never delivered. If there was no delivery, it follows as a matter of course that *Blader*did not part with his title. So in the first place it is apparent that the appellant failed to sustain by any proof the allegations of the answer referred to, and, in the next place, that if proof had been made by offering the judgment roll in the action referred to, the appellant would be no better off than he was in the situation in which the case was left.

2. The proof showed quite satisfactorily that on the 18th of October, 1905, the plaintiff *Blader*conveyed to his co-plaintiff, *Falbe,*the premises in question by warranty deed; that such deed, though absolute in form, was a mortgage in fact, 'and that it was given to secure the payment of money theretofore advanced by *Falbe*to *Blader,*as well as money advanced at the time the deed was made, and that *Falbe gave Blader*a land contract back, by the terms of which he agreed to reconvey the lands to *Blader*on payment of the 'amount of money which *Blader*owed him. There is no doubt under the authorities in this state that this transaction established the relation of mortgagor and mortgagee between the plaintiffs, and that *Blader*was a mortgagee within the meaning of sec. 3001, Stats. (1898), and might redeem from the execution sale, provided he took his conveyance soon enough to entitle him to redeem. *Rogan v. Walker,*1 Wis. 527; *Orton v. Knab,*3 Wis. 576; *Plato v. Roe,*14 Wis. 453.

3. Counsel for appellant contend that the rights extended by sec. 3007 to judgment and mortgage creditors apply only to persons who were such creditors at the time of the sale on execution, and furthermore that in any event *Falbe*did not become a creditor until the expiration of the period within which *Blader*might redeem, and that the statute has no application to such persons as become judgment or mortgage creditors after the expiration of the one-year period. Sec. 3007, Stats. (1898), reads as follows:

> “Any creditor of the person against whom such execution issued having, in his own name, or as assignee, representative, *59trustee or otherwise, a judgment rendered or a mortgage duly recorded, at any time before the expiration of fifteen months from the time of such sale and which shall be a lien and charge upon the premises sold, by paying the sum of money which was paid on the sale of such premises, together with interest thereon at the rate of ten per cent, a year from the time of such sale, shall thereby acquire all the rights of the original purchaser, subject to be defeated in the manner hereinafter mentioned.”

We perceive no reason for limiting the application of this statute to such persons as were judgment or mortgage creditors at the time the execution sale was made. There is nothing contained in it which indicates that’the legislature had any intention that it should be so limited. Any judgment or mortgage creditor of the person against whom the execution is issued has the right at any time before the expiration of fifteen months from the time of sale to pay to the purchaser at the sale the amount for which the land was sold, with interest, and he thereby acquires all the rights of the original purchaser. We cannot read into this statute any limitation which would bar judgment and mortgage creditors who became such after the sale was made. The eases hold that this should not be done. *Prescott v. Everts,*4 Wis. 314*; Martin v. Judd,*60 Ill. 78; *Densmore v.*Tomer, 14 Neb. 392, 7 N. W. 535; *Pierson v. Hickey,*16 S. Dak. 46, 91 N. W. 339; *Mandeville v. Avery,*124 N. Y. 376, 26 N. E. 951. Of course, when we speak of judgment and mortgage creditors, we refer to those creditors whose mortgages or judgments are in fact a lien upon the land sold on execution.

If *-Falbe*did not become a mortgage creditor until after the expiration of the year in which the debtor, *Blader,*might redeem, a different question might arise. No such question is involved in the case, however, because the proof is quite satisfactory that *Falbe*became a mortgagee within the year, and the court so finds. What the respective rights of the parties might be had the year elapsed before *Falbe*became a mortgagee we need not determine and we do not determine.

*604. We are satisfied that there was a valid redemption made in this case. In arriving at this conclusion we do not attach any significance to the fact that the necessary amount of money to redeem seems to have been paid to the sheriff at one time, because the money was refunded by the sheriff. The proof is undisputed that Falbe, within the time in which he was entitled to redeem, if he was in fact a mortgage creditor, secured the necessary amount of money to make a redemption of the lands from the execution sale, to wit, the sum of $1,068.75; that he made a legal tender of such amount to the defendant, and at the same time had with him a certified copy of his deed and of the land contract which he had given back to his coplaintiff, and an affidavit presumably made with the intention of complying with the requirements of sec. 3015, Stats. (1898), although the affidavit was not produced on the trial and neither were its contents disclosed; that the papers were exhibited to the defendant and that he refused to accept the money or to look at the papers, because, he said, the time within which the redemption might be made had expired; that immediately thereafter the plaintiff *Falbe*deposited said money in the bank at the village of Westfield and notified the defendant *Oaves*of .such deposit and that the money was subject to his order. This tender was kept good up to the time of the trial.

The only weakness about the plaintiffs’ ease with reference to the matter of tender arises out of the fact that there was no proof showing that the defendant was informed that *Falbe*claimed to be a mortgage creditor, and the proof is also silent as to whether or not the affidavit which *Falbe*had in his possession and which was drawn by a lawyer complied with the requirements of sec. 3015, Stats. (1898). But the plaintiff did not reject the tender because of any defect or of any insufficiency of the proofs which *Falbe*had in his possession. He took the ground that the offer came too late, and refused to either count the money or look at any of the papers which *61
      *Falbe*had in Ms possession and which lie offered to exhibit to tib.e defendant. He testified: “I was denying the right to redeem to him simply on the ground that I thought the time had expired. I was not denying it because he had not proven to me that he was not the mortgagee of *Mr. Blader.”*By this conduct defendant waived the right to complain of any informality there might have been as to the papers which *Falbe*had with him, if it be conceded that such informality existed. *Sexton v. Rhames,*18 Wis. 99, 101; *Badgley v. Ward,*37 Cal. 121, 99 Am. Dec. 256, 259; *Bank of Vergennes v. Warren,*7 Hill (U. Y.) 91, 93. If defendant had rejected the tender because the proofs were insufficient in any respect, there was ample time within which the plaintiff *Falbe*might supply the defects in his proofs and still renew his tender before the period of redemption expired.

It is also, urged that there was no redemption in this case because the following requirement found in subd. 4 of sec. 3015, Stats. (1898), was not complied with:

> “Within three days after making such redemption or purchase such creditor shall file such evidences of his right in the office of the register of'deeds of the county where the original certificate of sale is filed.”

We do not think that the failure to comply with this provision of the statute defeated redemption. There either was or was not a good redemption at the time the tender was made. If there was, it was not defeated by the failure of *Falbe*to make the required filing. This does not appear to be a provision of law intended for the benefit of the purchaser at the execution sale, but rather one that is made for the protection of third persons who might desire to acquire title to or secure an interest in the premises sold. *Chautauque Co. Bank v. Risley,*4 Denio, 480, 484.

It is argued that the court erred in awarding costs against the defendant *Gams,*because it was wholly unnecessary to bring a suit in equity to obtain the desired relief. However *62that may be, the equitable action was -brought, no challenge was made, by either demurrer or answer, to the form of the action, the defendant interposed an equitable counterclaim and asked for equitable relief, the case was tried before the court -as an equity action, and we are unable to see wherein the court abused its discretion or otherwise violated the law in awarding costs.

*By the Court.*— Judgment affirmed.