It seems to me that no doubt can exist but that the conveyance by Bailey Champlin to the company was nothing more or less than a mortgage. It was given to secure the payment of a debt due from Champlin to the company, and also any future indebtedness on the part of Champlin to the company. On the payment of the indebtedness, the property was to be reconveyed to Champlin or his heirs, or held in trust for him. In case of default the company was authorized to sell and convey, c., and return the surplus money, if any should arise from such sale.
The instrument in fact contained every material element of an ordinary mortgage on real estate, with the addition of a power to dispose of the property at private sale. I have no doubt that the instrument was a mortgage, and must be so regarded in reference to the rights of the parties to this action.
The next question in the case is whether the sale and conveyance of the property to Hamilton by the company cuts off the right of redemption on the part of the heirs of Champlin. The sale was a private one, without notice to the heirs.
The right of redemption exists in every case of a mortgage, and cannot be barred, except by release or foreclosure or by lapse of time.
It should be remembered that the conveyance to the company nowhere expressly authorizes a sale of the premises without notice. The sale was authorized to be made either publicly or privately, but no authority is given to make the same without notice, and this I think could not be done. *Page 643
In my opinion, the plaintiffs have a right to redeem the property upon equitable principles. Nothing exists to bar this right.
They were entitled to notice from the company of the contract of sale, before its consummation, in order that they might, if they chose to do so, pay up the amount due on the mortgage, and keep the property. If Hamilton took the conveyance without such notice, he did so subject to the right of redemption in the heirs of Champlin.
I think the judgment should be reversed, and judgment for plaintiffs on the demurrer, with leave to defendants to answer, on payment of the costs of the demurrer and of the appeal.
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