Page:North Dakota Reports (vol. 1).pdf/172

 some third person, the rights of the defendant shall be in no way prejudiced. What rights? Those of an owner? Not at all. The express language of the contract is that those rights are defendant’s rights “to become a purchaser thereof.” These rights “shall in no way be prejudiced.” His rights are not, by the terms of the contract, to be those of an owner absolutely, but only an owner “upon payment” of the $4,800 and interest to plaintiff; and, at the end of the instrument, it is declared that this contract shall “be and remain in force for the period of five years.” This final clause strongly indicates that it was the intention of the parties that, at the end of that period, not that defendant’s debt of $4,800 to plaintiff would be extinguished, and a mortgage turned into a deed by mere lapse of time, but that then should expire defendant’s optional right to buy the property at that figure; there resting upon him, however, no obligation to make the payment. It is true that the contract declares that the deed was made for securing plaintiff for the moneys paid by him upon the purchase. But it appears to us that this particular portion of the instrument, when construed with the other provisions thereof, may with as much reason be regarded as expressing an intention to secure plaintiff for moneys he had invested in the property, by giving him the absolute ownership thereof, subject to an optional right in the defendant to repurchase a one-half interest therein, as, on the other hand, evincing a design merely to secure a debt. The instrument does not, in express terms, purport to secure a debt from defendant to plaintiff, nor even to secure moneys advanced by the latter to the former or on his account. It simply declares the object of the deed to be the securing of moneys paid by plaintiff on the purchase; he having paid everything, and obtained the ownership of only a half interest in the property. The following authorities would seem to warrant the court in holding that the deed and instrument on their face show an intention to sell, and give the grantor an optional right to repurchase, although we do not so decide on this appeal: Randall v. Sanders, 87 N. Y. 578; Smith v. Crosby, 47 Wis. 160, 2 N. W. Rep. 104; Buse v. Page, 32 Minn. 111, 19 N. W. Rep. 736, and 20 N. W. Rep. 95; Conway’s Ex’rs v. Alexander, 7 Cranch, 218; Flagg v. Mann, 14