¶1
¶2His continuance therein was not long. He afterward was engaged as a sutler and remained. in the South. The transcript discloses the fact of differences between the defendant, John E. Wright, and his wife, Rebecca; tbat Rebecca remained home with the children on the farm, owned by defendant, John E.; that some agreement had been made between them whereby Rebecca was to have one-third of tbe proceeds of tbe farm when sold. It also appears from tbe letters of tbe defendant, John E., to Rebecca, tbat be authorized and urged her *103to sell the farm for twenty-five dollars per acre. She did sell it to the plaintiff, Bare, at that price, and he agreed to give her the farther sum of five dollars per acre on her third part, there being two hundred acres in all. This further sum amounted to three hundred and thirty-three and one-third dollars.-
¶3The defendant was advised of this sale and of its terms, except of the fact of the agreement for the payment of the further sum, and approved and ratified it, and proposed to execute and acknowledge a deed as soon as one was forwarded to him. The plaintiff took possession of the farm and land in controversy, and paid thereon to Bebecea the sum' of seventeen hundred and fifty dollars, which was used by her in the purchase of a small farm for herself. The deed to this small farm was made to a friend of the defendant, Bebecea, to be held by him in trust for her. The plaintiff borrowed three hundred dollars of this friend of Bebecea, to enable him to make the payment. The balance of the purchase-money was to be paid on the delivery of the deed by defendants to plaintiffs for the property in controversy. Before bringing this suit the plaintiff tendered to defendant, John E., the balance of the purchase price, except the further sum he was to give or pay Bebecea, and demanded a deed, which was refused.
¶4After the cause was submitted to be tried in vacation, the plaintiff • filed an amended petition, in which he offered to pay to the defendants or into court for their benefit, the three hundred and thirty-three and one-third dollars agreed by him to be given or paid to Bebecea. It also appears in évidence that the friend of Bebecea to whom the title of the small farm purchased by him was conveyed, claimed a lien thereon for the three hundred dollars loaned by him to the plaintiff. This claim of his was not released until after the order of'submission.
¶5*104hi view of these facts it was error for the District Court to render judgment in favor of .plaintiff for the costs. Under the peculiar circumstances of this case, the plaintiff should pay the costs.
¶6A careful examination of all the testimony in the cause has fully satisfied us that the judgment of the District Court is correct in every thing except costs. It is satisfactorily proved that the’ defendant John E. authorized and urged his wife to sell the land at twenty-five dollars per acre, and ratified the sale after it was made. The fact that plaintiff agreed to pay, or, as he and she call it, “ give to Rebecca as a present for signing the deed,” the further sum as stated, would not have the effect, under the peculiar circumstances of this case, to defeat.the sale, especially as the defendant John E. has the benefit of it. The proof as to the value of the land does not show such indequacy of price (if indeed it shows any at all), as would defeat a claim for specific performance.
¶7The decree of the District Court will be affirmed, with the modification suggested as to costs. The appellee will pay costs in this court.
¶8Modified and affirmed.