Page:North Dakota Reports (vol. 48).pdf/737

 one-half of such grain the legal title to, and the absolute ownership of, all grain should be and remain in the plaintiff; further, that in case of default the defendant agreed to surrender possession of the premises and to forfeit all payments made to the plaintiff as liquidated damages and as compensation for the use of the farm during the time the defendant had possession.

The plaintiff instituted action December 10, 1920. The complaint alleges defaults of the defendant as follows: Failure to pay the Prosser mortgage, either principal or interest; taxes for 1919 and 1920; failure to pay the entire interest due on the balance of the purchase price or any part of the principal thereof; failure to deliver or account for the crop of 1920; failure to farm the premises in a good and husbandlike manner. It further alleges that the Prosser mortgage is about to be foreclosed; that the defendant occupies the premises and will permit such foreclosure; that the contract constitutes a cloud upon plaintiff's title; that the procedure at law for the cancellation thereof will require at least six months, and that the land should be prepared for the crop season of 1921; that accordingly plaintiff applies to a court of equity for relief to the end that the contract may be canceled and declared null and void and decreed to constitute no lien, and that plaintiff be awarded possession of premises on or before March 1, 1921.

The answer alleges, among other things, that the land was exceedingly foul when defendant took possession; that he has farmed it in a good and husbandlike manner, so as measurably to free the land of its foul condition; that he has repaired the buildings and dug a well on the land at an expense of approximately $1,500; that he has actually invested in such land, including his equities in the Montana and Benson county lands, $13,603.30; that the contract does not contain all of the agreements between the parties; that after the preparation of the contract plaintiff assured the defendant that no default would be claimed by reason of failure to make payment of principal or interest on the Prosser mortgage or taxes on the land; that, if the defendant was unable to make such payments, the plaintiff would take care of them and simply add the amount thereof to the contract. He further alleges waiver of the alleged defaults; that plaintiff accepted the payment of $907.25 from defendant on December 1, 1920, after the Prosser mortgage and interest became due; that plaintiff further permitted defendant to proceed with plowing and other farming operations in the fall of 1920; that defendant