Von Oehsen v. Brown ( 1912 )

Vinje, J.

The agreement Exhibit A shows that the deed, executed at the same time, was in fact a mortgage given to secure tbe interest due or to become due ou tbe $10,000 mortgage and tbe sums to be advanced by Miles to pay claims for mechanics’, liens, taxes, and insurance. Even if tbe complaint be construed as containing no specific allegations that Miles or tbe plaintiff paid tbe claims for mechanics’ liens, it does allege that interest on tbe $10,000 mortgage remains unpaid and is now due. Tbe deed being in fact a mortgage, plaintiff is not entitled to a strict foreclosure, but be has stated 'a cause of action for a statutory foreclosure for at least tbe interest due on tbe $10,000 mortgage which tbe deed was given to secure, and tbe demurrer was therefore properly overruled. Sec. 2649a, Stats. (Laws of 1911, cb. 354).

By the Gourt. — Order affirmed.