Argument for Plaintiff in Error.

The court in its opinion cites with approbation: Nugent v. Riley, 1 Met. 117; S. C. 35 Am. Dec. 355; Wilson v. Shoenberger, 31 Penn. St. 295; Dow v. Chamberlin, 5 McLean, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Freidley v. Hamilton, 17 S. & R. 70; Shaw v. Erskine, 42 Maine, 371. If this court stands upon the principles announced by Chief Justice Shaw in Nugent v. Riley and the other cases cited in support of it, the court erred in not granting the motion for a nonsuit.

That a deed and agreement to reconvey for a certain sum at a specified time, constituting one transaction, are per se a mortgage, we cite: Teal v. Walker, supra; Nugent v. Riley, 1 Met. 117; Wilson v. Shoenberger, 31 Penn. St. 295; Presch baker v. Feaman, 32 Illinois, 580; Harbison v. Lemon, 3 Blackford, (Ind.,) 51; S. C. 23 Am. Dec. 376; Colwell v. Woods, 3 Watts, 188; S. C. 27 Am. Dec. 345; Edrington v. Harper, 3 J. J. Marshall, 353; S. C. 20 Am. Dec. 145; Dow v. Chamberlin, 5 McLean, 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Freidley v. Hamilton, 17 S. & R. 70; Shaw v. Erskine, 43 Maine, 371; Jeffery v. Hursh, 58 Michigan, 246; Voss v. Eller, 109 Indiana, 260; Bunker v. Barron, 79 Maine, 62; Butman v. James, 34 Minnesota, 547.

Since the decision of this court in Teal v. Walker, and subsequent to the transaction now under consideration, the question again came up, in which other elements entered into the transaction, and this court reached a somewhat different conclusion. Wallace v. Johnstone, 129 U. S. 58. But the deed before the court in Wallace v. Johnstone, containing covenants of warranty, was made to one person, while the agreement for an option was to a third person, thereby in no way suggesting a right to redeem by the vendor. We do not claim that this transaction would per se constitute a mortgage. It does not present the principles, or call for a determination. of the doctrines announced by the various decisions and law writers, where the conveyance was to a certain person, who, as a part of the same transaction, agreed to reconvey to his grantor upon the payment of a certain sum at a certain time. The distinction is too apparent to require further comment.

Opinion of the Court.

If this court had intended to announce a different doctrine from that established by the authorities quoted with approbation in Teal v. Walker, it would in some way have referred to the fact. Nor do the decisions cited by the court which we have above quoted conflict with the case of Teal v. Walker, in so far as it is based upon the cases therein cited with approbation.

Mr. W. W. Dixon, (with whom was Mr. Martin F. Morris on the brief,) for defendants in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The action in this case was upon the lease of a city lot and certain mining claims, and a judgment was demanded for the restitution of the premises, and for damages for detention. The answer set forth in substance that the lease was one of a series of contemporaneous agreements, consisting of two deeds, an agreement to reconvey and a lease; that the deeds were intended as a mortgage; and that the rental of $450 named in the lease was the amount which it was understood would be necessary to pay the taxes upon the property, and the annual assessment work upon the mining claims, and that upon payment thereof by defendant Bogk the object of the lease should be fully satisfied and discharged; that the defendant paid this sum; and that the said lease became void and of no binding force.

The trial took place before a jury, and the assignment of error relates to the rulings of the court made in the course of such trial. We proceed to consider them in their order.

1. That the court erred in overruling defendant's motion for a nonsuit. In this connection, the bill of exceptions shows that the plaintiffs put in evidence the deeds from Bogk and wife to the plaintiffs, the agreement to reconvey, the lease with oral testimony of the rental value, and then rested. Defendant thereupon moved for a nonsuit upon the ground that plaintiffs had failed to prove that they were ever at any time in or entitled to the possession of the premises; that

Opinion of the Court.

defendant ever entered into possession under or by virtue of said lease; and that plaintiffs totally failed to prove a demand to have been made for the possession of the premises, or ever served or gave notice to quit upon the defendant. This motion was overruled. Defendant excepted, and proceeded to introduce testimony in defence.

The practice in Montana (Comp. Stat. sec. 242) permits a judgment of nonsuit to be entered "by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury." Without going into the question whether the motion was properly made in this case, it is sufficient to say that defendant waived it by putting in his testimony. A defendant has an undoubted right to stand upon his motion for a nonsuit, and have his writ of error if it be refused; but he has no right to insist upon his exception, after having subsequently put in his testimony and made his case upon the merits, since the court and jury have the right to consider the whole case as made by the testimony. It not infrequently happens that the defendant himself, by his own evidence, supplies the missing link, and, if not, he may move to take the case from the jury upon the conclusion of the entire testimony. Grand Trunk Railway v. Cummings, 106 U. S. 700; Accident Insurance Co. v. Crandal, 120 U. S. 527; Northern Pacific Railroad v. Mares, 123 U. S. 710; Union Insurance Co. v. Smith, 124 U. S. 405, 425; Bradley v. Poole, 98 Mass. 169; Columbia & Puget Sound Railroad v. Hawthorne, 144 U. S. 202.

2. The second error assigned is to the admission of the conversation of the parties at the time of the execution of the instruments. Exception was duly taken upon the trial to the admission of this testimony. This exception does not seem to have been incorporated in either of the bills of exceptions, but in a "Statement on Appeal," which appears to have been settled and signed by the judge in the same manner as a bill of exceptions, and to have been treated as such by the Supreme Court of the Territory. The Code of Civil Procedure of Montana provides (sec. 432) for a statement of the case to be used on appeal, which shall state specifically the particular errors

Opinion of the Court.

or grounds upon which the appellant intends to rely, and which seems to take the place of an ordinary bill of exceptions. Under this code, (sec. 628,)" when the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and, therefore, there can be between the parties and their representatives or successors in interest no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: First, where a mistake or imperfection of the writing is put in issue by the pleadings; second, where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 632, or to explain an extrinsic ambiguity, or establish illegality or fraud. The term, agreement, includes deed and wills, as well as contracts between the parties."

In this case Bogk had been called upon as a witness for himself, and testified that he had applied to these parties for a loan, not a sale; that he wanted money to pay off parties whom he owed; that he first spoke to Gassert or to Steele, but there was a dispute whether he should pay one per cent or one and a half per cent, "but it should have been made in a deed with a bond to me for a deed back again to me. I wanted it for a year, to pay off these parties and give them a mortgage for it; that was the first agreement." But the plaintiffs demanded a deed with an offer to give a bond for a deed back again, "so you can release it-pay it off at any time"; "Steele and Harry Gassert said this to me; said 'we want a deed, but will give you a bond to convey back at any time.' At the time of the negotiation of this loan I promised to repay the $15,000 to the plaintiffs just as soon as I made a sale of my mines. I had these mines so that I thought I could make a sale of them, and calculated to pay it that way; I promised to pay it inside of a year. The interest was put all together for a year, but I agreed to pay this interest every month, but through my sickness and the bad luck I had, I could not succeed, and could not pay it. The agreement was this way: If I should pay the interest they should give me a

Opinion of the Court.

amount, if it was paid in This lease, which was read

written paper and credit for the instalments as agreed between us. in evidence, was made to secure the representation of two of my mining claims, the Eva and Leaf, which were then unpatented, and to secure the payment of the taxes on my property, which would probably be $250 and $200 for representing, making in all $450, which this lease was given to secure and nothing else; which representation work I did for that year, 1885, and I have paid the taxes. There was nothing

at all said in these interviews between me and plaintiffs or their agents or attorneys, as to the sale of my property. They said, give them a deed and they would give me a bond for a deed back again. The negotiation between us was to loan me money. There was no price set to any piece or pieces of this property. It was a loan on all the property together. They made me no proposition pending these negotiations to pur chase my property, to buy it of me."

In rebuttal, Steele and Gassert were put upon the stand and asked as to the conversation which took place at the attorney's office at the time the deeds and contract to reconvey were made. This conversation was admitted, and defendant excepted. Now, while this might have been improper as original testimony, it would have been manifestly unfair to permit Bogk to give his version of the transaction gathered from conversation between the parties, and to deny the plaintiffs the privilege of giving their version of it. The defendant himself, having thrown the bars down, has evidently no right to object to the plaintiffs having taken advantage of the license thereby given to submit to the jury their understanding of the agreement. The code is merely in affirmance of the common law rule, and was evidently not intended to apply to a case of this kind.

3. Error is also imputed to the court "in adopting the theory announced throughout the instruction given on the part of the defendants" (in error) "that the transaction could not amount to a mortgage unless there was a personal liability on the part of the plaintiff," (in error, defendant below,) "upon which a recovery could be had, and error in giving conflicting