The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1911-07-28

the vendors an option to repurchase
at a future day. II appears from the
testimony that when the deed was
made all negotiations for a loan had
been abandoned, that is to say, no
one was found who was willing to
make loan in the amount of $751;
100000, and it was agreed that Mr.. and
Mrs. Newberrys would sell the farm
and that they should have an option
to repurchase the land In question by
October l, 1911, at an increased price
of $6,000.00, with interest on the
whole amount PLAINTIFFS theory that
1t was at that time agreed and un-
derstood that the purchase price OF
the land should be considered as a
loan and the deed taken as security
therefore, is not, in my Judgment, es-
tablished by the evidence. II 1t was
intended as loan, then it follows,
according to the testimony Of plaintiff.
that he was to pay the lender COM
mission of five or six thousand dol
lars. Commissions, such, are not paid
to the lender, but usually to the agent
who finds the lender or procures a
party who will make the loan. To
say that 1t was agreed that the de-
PENDANTS should receive commission
of five or six thousand dollars, and
they agreed to loan plaintiff the
money because they received such
commission, would be to presume
that all the parties then and there
agreed to a contract which was usur-
ious, which, Of course, the court ought
no. to presume. Under the circum-
stances then surrounding Mr.. and
Mrs. Newberry, the making of a sale
of the farm, with right to repur-
chase at later date, 1t seems, was
the best arrangement they could
make, and it cannot be said that If
they did make a sale of the farm it
was foolish thing for them to do,
and one that they would not natural
ly do, for the evidence shows that
if they had not made the contract
which they did make and obtained
the money, sheriff's deed would
have issued within a day or two
thereafter and then there would
have been no opportunity to buy the
land back or to retain possession,
even for a day, after the issuance of
the sheriff's deed, while, under the
agreement for the making of an alb
solute sale, with a right to repur-
chase at a later date, they save some
100000 worth of property, which
was released to them, and the right of
possession for year, and If the farm
was worth seventy-fye or eighty
thousand dollars they were given nine
months time within which to buy it
back, thereby saving to themselves
some thirty thousand dollars more.
In the case above referred to, in
IS S. W., beginning at page 500, and
in which a deed was treated as a
mortgage, the supreme court, in de
Gliding the matter took into consider
alton the fact that no such extraor
binary emergency was there shown
as would require or justify the gran.
err, as a sane man, to convey his
homestead, worth $4,000 or a $1,000
90, absolutely, for $4,000, as no right
to repurchase was given the vender
while in the case at bar such extra
ordinary emergency did exist, and
by reserving right to repurchase
for given price, within given time
Mr.. and Mrs. Newberry did not ACT
unwisely but exhibited sound judg
ment under the stress OF circum
stances then existing.
Where there has been an abso
lutte conveyance of land, with an
agreement to repurchase within fix
ed time, at price exceeding that
paid for it, with interest, the transac
ton may be a conditional sale, in
which case it is not affected with
usury. If. however, the transaction
be mortgage, it is usurious.' Isl
Jones on Mortgages, Sec $50.
The doubt referred to in the author
tiles as to whether a transaction con
stitutes conditional sale or mort
gage is doubt as to whether con
ditional sale, Or mortgage, was in
tended at the time of the making OF
the contract. "A Mo-, 429.
The supreme court of Iowa, in q
late case cited by the defendants
uses this language, "If 1t was the un
derstanding Of the bank that Mr.
Bradford, who was the vender, nigh,
eventually get something more out OF
the land, it would not be unnatural to
speak generally of the matter as q
security, but in any event loose and
random statements should not be per
| mitted to overcome direct and positive
proof. The intention of the parties
/ at the time the instrument was ex
ecuted is the controlling factor in de
termining what the true contract
was" Citing 10th Iowa, 235 and 3Sth
Iowa, 11s; 1870. N. W., 90S, Advance
Sheet No. s.
The testimony of the witness
Swartz has been criticised by counsel
| for the plaintiff, but it will be found