Page:North Dakota Reports (vol. 1).pdf/171

 sively showed an intention to secure to plaintiff this sum of $4,800 claimed to be owing him from defendant. In this we think the court erred. That the parties could enter into a contract to deed the property to plaintiff absolutely, giving the defendant a mere option to repurchase one-half thereof, cannot be doubted. If this transaction can be said to be clear on its face, this is its proper interpretation. It will be noticed, in the agreement already set forth, the plaintiff agrees to assume the payment of the note and mortgage executed by him and defendant jointly to secure the unpaid purchase price of the property. He certainly did not intend by this agreement to release defendant from liability to the holder of such note and mortgage, as that he could not do without the consent of such holder. It cannot be said that he intended to take upon himself the payment of this whole mortgage debt as between himself and defendant, and yet hold defendant to his liability to pay one-half of the purchase price of the property of which it formed part. If the debt of defendant to plaintiff for one-half of the money advanced by the latter to the former was to stand, plaintiff would not have agreed with defendant that he would assume and pay defendant’s one-half of the mortgage debt; for, if it was the intention to continue the old relation between the parties, the plaintiff would have left his relations with defendant untouched as to the mortgage debt, and taken the deed merely as security for what he had actually paid. It is singular that the plaintiff, intending to hold defendant to his liability for his half of the purchase price, $4,800, should, in the transaction which it is claimed evinces such intention, take upon himself the burden of defendant’s half of the mortgage debt of $2,500.

We think this assumption strongly indicates a design on the part of both plaintiff and defendant to abandon their old relations with reference to the property, and abrogate existing liability by the substitution of a new arrangement establishing new relations, and that these new relations were those of grantor and grantee, with an option in the grantor to repurchase the property at any time within five years on payment of $4,800 and interest. It is significant that the instrument declares that, in case the parties agree to sell the property for a higher price to