The decision of this case, depends upon the construction to be given to the report of the referee. If the facts found constitute the conveyance to Mrs. Grant a mortgage, according to established legal principles, the plaintiff is entitled to redeem, and the conclusion of law denying such right was erroneous. If, on the other hand, the true construction of the findings is, that Mrs. Grant made an absolute purchase of the property, and only a conditional sale by parol to the plaintiff or his brother Milo, then the conclusion *Page 499 of the referee, that the plaintiff had no legal or equitable claim, was correct, and this court is bound to affirm it.
If the findings of a referee are ambiguous, that construction will be adopted, which will sustain the judgment, rather than that which will lead to a reversal. The rule is, that the findings are to receive the most favorable construction of which they are capable, for the purpose of upholding the judgment. Under this rule I am unable to see how this judgment can be disturbed.
The referee finds in effect, that the transaction was a parol conditional sale, and not a mortgage. It is true that the negotiations between Hill and Day commenced for a loan of money, and upon this being declined, Hill desired Mrs. Grant to take the deed as security; but the final arrangement, as the referee in substance finds, was that Mrs. Grant was to purchase the property, absolutely agreeing at the same time, that if Milo Hill would make certain payments by a specified time, she would convey the property to him. This accords with the other facts found. Neither the plaintiff nor Milo Hill ever owned this property, nor did either of them pay any part of the consideration. The $439 which Spaulding exacted, upon the sale by him, constituted no part of the consideration for the property, but was a debt due him from Milo Hill for rent and other liabilities. Mrs. Grant paid and secured the full value of the premises, and took immediate possession of, and managed the same as absolute owner. The transaction as found by the referee, and which the evidence warrants, was in substance this: Milo Hill was desirous of purchasing the property, whether for himself or the plaintiff, is immaterial. Spaulding was willing he should, but required him to perfect the purchase by the 1st of February, which he was unable to do, and he thereupon induced Mrs. Grant to become the purchaser, to enable him to have an extension of time, within which he might have the privilege of making the purchase. Mrs. Grant consented to purchase and give Hill an option, until the first payment became due. She occupied the same relative legal position to Milo Hill after the conveyance *Page 500 to her as Spaulding did before, and Mrs. Grant's agreement to convey upon certain conditions, did not constitute a mortgage any more than Spaulding's previous agreement did. This was evidently the view of the referee, and the findings are in harmony with it, and the evidence is sufficient to sustain the findings. The authorities cited by the learned counsel for the plaintiff are not, therefore, applicable to the established facts, but the case falls within the authorities relating to conditional sales. (Holmes v. Grant, 8 Paige, 243, and cases there cited.)
It is quite unnecessary to determine what equitable right to a specific performance of the parol agreement, Milo Hill or the plaintiff had or might have acquired. It is sufficient to say that any such right was forfeited and canceled, by the failure to perform the conditions, and by the voluntary abandonment of all claim under the agreement. The judgment must be affirmed.
All concur.
Judgment affirmed.