Page:North Dakota Reports (vol. 1).pdf/310

 by said Larison to Mrs. B. B. Hotchkiss. Said second party agrees to make payments as follows: The sum of eighteen hundred and ninety-five dollars on and before the execution of this contract, the receipt of which is hereby acknowledged; the sum of thirteen hundred dollars on or before the first day of January, 1885; and the sum of thirteen hundred and one dollars on or before the first day of February, 1885, with interest thereon at the rate of ten per cent. per annum before and after maturity. Said Larison agrees to furnish an abstract of title to said land, showing good title in himself, and that same is free and clear of all incumbrance, except the mortgage of three hundred dollars, above referred to. Said first parties agree to execute said deed within twenty days from this date, and deposit the same in the First National Bank of Lincoln, Illinois, to be delivered to said second party by said bank when the conditions of this contract are completed by said second party. , Trustee.”

He then alleged the payment and receipt of a certain amount on the contract, and a full performance on his part of all the terms of said contract, including a tender of the deed, but that defendants had failed and refused to accept said deed, or pay for said land, according to the terms of said contract, and a decree was prayed enforcing the balance due under the contract with certain special and specific relief. The defendants Wilbur and Nickeus answered as follows: First. They deny each and every allegation in said complaint, save such allegations thereof as are hereinafter specifically admitted. Second. They admit that on and before the 13th day of November, 1884, the plaintiff was and now is the owner of the E. 4 of the 8. E. 3, and the E. 4 of of the N. E. 4 of section 16, in township 153 north, of range 67 west. Third. In answer to paragraph 3 of plaintiff's complaint, defendants aver on or about July 20, 1883, defendants Hager, Cross, Wilbur, and Nickeus entered into an oral contract, but not as partners, with the plaintiff herein, whereby he agreed to pre-empt, prove up, and deed all of the said tract of land mentioned and described in said complaint, to-wit, the E. $ of the S. E. 4, andthe E. 4 of the N. E. 4 of section 16, in township 153 north, of range 67 west, to these defendants and