¶1delivered the opinion of the court.
¶2It is clear from the evidence that the conveyance of May 26, 1900, from L. C. Slocum, W. A. Howat and Richard Howat to Levi M. Donnelly was executed to secure the payment of §8,100, the aggregate amount of mortgage debt, interest and costs, originally contracted by Slocum and afterward assumed by the Howats. Although an absolute conveyance in form, it was, in fact, but a mortgage. So familiar is the law upon that point, that the citation of authority is unnecessary. Hot only was the deed to Donnelly but a mere mortgagee, but he knew and recognized the terms of the agreement entered into between the Howats which gave either of those parties, in the event of the payment of the debt by the other, the right of a re-conveyance to him of his half of the premises, on payment at any time within two years of his proportionate part of the debt and interest. Richard Howard paid off Donnelly in full and redeemed the property. When he did so and took a deed from Donnelly, he brought about the very condition contemplated by the above mentioned term of the contract. Had he retained in himself the legal title obtained by Donnelly’s deed and refused to give his brother a contract to re-convey, as contemplated by the agreement, there can be no doubt that a court of equity could have compelled him to do so. W. E. Reagan occupies no better position, because he was fully informed of the terms of the agreement and of the rights of W. A. Hovvat before he parted with his money. He took the conveyance with full notice of the rights of all the parties.
¶3There is no room in the evidence for the contention that W. A. Howat abandoned all rights under the contract and consented for Reagan to purchase the property. As a matter of fact, he was protesting against every step in the negotiations between Reagan and his brother which he thought would cut off his rights. The failure on his part to perform the conditions with reference to payment of royalty, rent, etc., did not constitute an abandonment or work a forfeiture of his right to redeem according to the terms of the contract.
¶4The facts fully justify the decree and the same will be affirmed.