#### Polly and wife, Respondents, vs. Gumney, Appellant.

*May 2*—

May *21, 1914.*

*Mortgages: Deed absolute in form: Security for debt.*

1. A conveyance of land by deed absolute on its face, when given as security for a debt, is a mortgage.

2. Findings in this case to the effect that there was no sale of the land, but merely a conveyance of it to secure a debt, are *held*to be supported by the evidence.

Appeal from a judgment of the circuit court for Portage county: ByroN B. Pare, Circuit Judge.

*Affirmed.*

This action was brought for the purpose of declaring an instrument, on its face a deed, a mortgage, given as security for a debt, and to redeem the mortgaged premises. The facts, involved sufficiently appear from the findings of the court below, which are substantially as follows:

“That on and prior to January 1, 1907, the plaintiff *John.*
      *363
      *F. Polly*was tbe owner and in possession of tbe land described in tbe complaint; that on said day tbe plaintiff borrowed from one Edgar Starks tbe sum of $2,360 for five years with interest at seven per cent, per annum, secured by a warranty deed of tbe lands described in tbe complaint, upon tbe express condition that tbe said Edgar Starks would re-convey said premises upon tbe payment of said sum, together witb interest tbereon; that said deed and contract were duly witnessed and acknowledged and duly recorded in tbe office of tbe register of deeds for Portage county, Wisconsin, on tbe 5th and 7th days of January, 1907, respectively; that tbe plaintiffs remained in possession and bad tbe use and benefit of said lands from tbe time of making tbe deed to Edgar Starks, and were at tbe time of tbe commencement of this action and are still in possession of tbe premises; that on tbe 29th day of January, 1910, tbe plaintiff *John F. Polly*borrowed from tbe defendant tbe sum of $2,750, to be repaid witb interest at tbe rate of six per cent, per annum, interest to be payable annually; that said indebtedness was contracted and agreed should be secured by a transfer of tbe title to the real estate described in tbe complaint as hereinafter set forth; that originally tbe agreement was that tbe principal was to be repaid in three years, but that, to satisfy tbe repeated demands of tbe plaintiffs that tbe defeasance be executed as agreed upon, tbe defendant agreed that tbe principal could be repaid at any time; that out of tbe said sum of $2,750 so received from tbe defendant tbe plaintiff caused to be paid to Edgar Starks $2,360 and interest then due and owing; that said Edgar Starks, at tbe request of tbe plaintiff and witb tbe consent of tbe defendant, conveyed by warranty deed tbe premises described in tbe complaint to tbe defendant; that tbe balance of said $2,750 was used to pay other indebtedness which tbe plaintiff then bad outstanding; that said warranty deed from Edgar Starks to tbe defendant was authorized by tbe plaintiff and accepted by tbe defendant as *364security for tbe repayment of said $2,750 and interest, and said warranty deed was accepted by tbe defendant as sucb and for no other purpose; tbat said warranty deed was duly witnessed, acknowledged, and recorded in tbe office of tbe register of deeds for Portage county, Wisconsin, on tbe 1st day of February, 1910; tbat to further carry out said agreement tbe plaintiff did on tbe 29th day of January, 1910, make, execute, and deliver to said Edgar Starks a quitclaim deed of tbe said premises, which deed was duly witnessed, acknowledged, and recorded in tbe office of tbe register of deeds for Portage county on tbe 1st day of February, 1910; tbat on tbe 29 th day of January, 1910, tbe plaintiffs were in possession of said premises and continued to remain in possession thereof and receive tbe rents, issues, and profits thereof, and tbat tbe defendant has never been in possession of said premises under bis said deed, nor has be received any of tbe rents, issues, or profits thereof except tbe payment of tbe interest upon tbe money so loaned; tbat on tbe 11th day of January, 1913, the plaintiff *John F. Polly*tendered tbe defendant, *Albert*Oumney, in legal tender money of tbe United States, tbe sum of $2,750, together with interest thereon at six per cent, to tbe 29th day of January, 1913, and tbe amount of taxes tbat tbe said defendant bad paid on said premises for tbe year 1911; tbat on said day and at tbe same time tbe plaintiff tendered to tbe defendant a good and sufficient deed of conveyance of tbe said lands and premises and requested him, in tbe presence of two witnesses and a notary public, there to receive bis acknowledgment of said deed, requested and demanded tbat tbe defendant receive and accept tbe sum of $2,750', taxes and interest thereon, and to execute and deliver to said plaintiff *John F. Polly*said deed so tendered to him, but tbe defendant refused to accept said sum so tendered or to execute and deliver to tbe plaintiff a deed of said premises, but insisted and claimed tbat be was tbe owner thereof and tbat tbe plaintiff was in possession of said premises as *365bis tenant; tbat tbe plaintiff still bas said money on deposit in tbe Security Rank of Amherst Junction, Wisconsin, to make good bis tender so made to tbe' defendant on tbe 11th day of January, 1913, and tbe same bas been kept ready by tbe plaintiff to be paid over to tbe defendant at any time tbat tbe defendant would accept tbe same; tbat tbe plaintiff *Tony Polly*is tbe wife of *John P.*Polly, plaintiff, and bas an inchoate dower interest in said lands, and tbat she joined in said conveyance for tbe purpose of barring her dower in said lands; tbat there is due and owing to tbe defendant by tbe plaintiff at tbe time of tbe commencement of this action for

Principal.$2,750 00

Accrued interest. 495 00

For taxes for 1911. 24 85

For taxes for 1912. 25 52

Total .$3,295 37

Tbat tbe plaintiff bas paid to tbe defendant $367, leaving a balance due at tbe time of tbe commencement of this action of $2,928.37; tbat tbe value of said premises was in January, 1910, $5,000..

Tbe court concluded: Tbat tbe warranty deed from Edgar Starks and wife to *Albert*Gumney, dated January 29, 1913, recorded February 1, 1910, was and is in effect a mortgage; tbat tbe plaintiff is entitled to redeem from tbe said deed herein declared to be a mortgage upon payment to tbe defendant of tbe sum of $2,928.37, less tbe costs and disbursements of this action; tbat within twenty days after tbe entry of this judgment herein tbe defendant, *Albert Gumney,*do make, execute, and deliver to tbe plaintiff *John F. Polly*a good and sufficient deed of conveyance of said premises described in tbe complaint; tbat upon tbe said defendant so making, executing, and delivering said deed, tbe plaintiff do forthwith pay to tbe defendant said sum of $2,928.37, less the costs and disbursements of this action; tbat if tbe defendant fail to so make, execute, and deliver said deed, then tbat the judg*366ment provide that, upon the plaintiff paying said sum of money so found due by him to the-defendant into the office of the clerk of this court, the judgment act as a deed of conveyance conveying all the right, title, and interest of the defendant, *Albert*Gumney, in and to said premises to the plaintiff *John F. Polly;*that the plaintiff have and recover of and from the defendant, to he deducted out of the moneys due by the plaintiff to the defendant, his costs and disbursements to be taxed herein.

Judgment was rendered in accordance with the findings of fact and conclusions of law, from which this appeal was taken.

*A. L. Smongesldj*for the appellant.

Eor the respondents the cause was submitted on the brief of *D. I. Siclclesteel.*

KeRWIw, J.

There is really but one question on this appeal, namely, whether the findings are supported by the evidence.

It is insisted by appellant that there was a sale of the property and that the deed on its face shows that the transaction was a sale of the land, not a conveyance of it as security for a debt. It is well settled by the decisions of this court that a conveyance of land by deed absolute on its face, when given as security for a debt, is a mortgage. *Smith v.*Pfluger, 126 Wis. 253, 105 N. W. 476. The evidence amply supports the findings to the effect that the transaction was not a sale of the land, but merely a conveyance of it to secure a debt.

All the findings are well supported by the evidence, therefore the judgment must be affirmed.

*By the Oourt.*— The judgment is affirmed.