Page:North Dakota Reports (vol. 1).pdf/90

 date of said bill of sale, which was not exempt from execution, except one quarter section of land, worth about $500, which land is subject to two mortgages, amounting in the aggregate to $665; that at the time when said Lee entered into the above-mentioned contract with the plaintiffs he had fully determined to stop business and surrender said property therein described to the plaintiffs for the purpose stated in the oral agreement which accompanied said bill of sale; that the store building used by said Lee as a store on the 6th day of December, 1888, was at said time the homestead of said Lee, and was exempt from execution; that said Newell & Co., on the 6th day of December, 1888, and for some time prior thereto, knew that said building was the homestead of said Lee; that said homestead on said last-mentioned date was of the value of $3,000, and was ample security for the mortgage of $2,486.04 held by the Merchants’ National Bank of Devil’s Lake against the same, and was 80 considered by said bank, and said bank on said 6th day of December, 1888, so informed the plaintiffs and said Lee; that the provision made by said Lee and the plaintiffs in the oral agreement above mentioned, by which the mortgage to said bank was to be paid out of the proceeds of the sale of the property described in said bill of sale, was made at the suggestion of W. S. Stockdale, the agent of the plaintiffs, and who represented the plaintiffs in making the contract of December 6, 1888, with Lee. There was no evidence offered to show that the bank was insisting upon payment of its mortgage, and the cashier of said bank notified said Stockdale and Lee, before and after said bill of sale was made, that the bank considered the real estate covered by its mortgage ample security for its debt, and would not become a party to the transaction or contract of December 6, 1888, and would take no step that would in any way disturb its mortgage lien, but the bank did not object to being. paid as provided by said Stockdale and Lee; that the value of the stock of merchandise and fixtures mentioned in the bill of sale on December 6, 1888, was $2,700; that the value of the book-accounts and bills receivable mentioned in the bill of sale on December 6, 1888, was $6,700, and the cash value of the same on that day was $6,000; that $500 of said bills receivable was held by the First National