We are of opinion that the plaintiffs’ motion for a judgment on the pleadings was properly denied. The allegations of the complaint material to the plaintiffs’ theory of the case are all specifically denied in the answer. The further matter set up in the answer, as to the indebtedness of Carl Kleinschmidt and the Blackfoot Horse and Cattle Company, existing and to be incurred, to defendants, being a lien on plaintiffs’ interest in the land, was conditioned upon plaintiffs complying with the terms of the bond. It left the inquiry to be decided by the evidence, whether the intent of the parties was that the transaction should be a mortgage or a sale j and the court properly heard evidence upon that issue. The prayer of the complaint seems to be for specific performance on the bond. Plaintiffs pray that the defendants reconvey the premises. Such relief could not be granted on the bond.
An. inspection of that instrument reveals the fact, that the obligors make no covenant to reconvey. They simply agree that, if the obligees pay them five thousand five hundred dollars and interest, and if they, the obligors, do not make, execute, and deliver a deed, then the bond of five thousand five hundred dollars shall be in full force, otherwise to be null. The obligors could discharge the bond by accepting the tender of five thousand five hundred dollars and interest, and then paying the penal sum of five thousand five hundred dollars to the obligees. No conveyance could be compelled under the bond if a valid tender had been made. But appellants, in their brief before us, demand “other and further relief,” as prayed in the third division of the prayer of the complaint; that is, that the deed in evidence be declared to be a mortgage, and that they have leave to redeem such mortgage.
We have carefully examined the voluminous evidence in the record. It demonstrates beyond question that, although there *489was a conflict and contradiction, the findings of the court are sustained by the evidence and a preponderance thereof. Such was the view of the lower court on the trial, and on the motion for a new trial. This court will not now disturb those findings. We will say in passing that the view we take of the other points of the case makes it unnecessary to decide whether the fourteenth finding is supported by the pleadings. That finding is not necessary to the determination of the case.
The only other question before us is the conclusion of the court, from the facts that the transactions were a sale and not a mortgage.
This whole proposition has recently been so ably discussed, and the law so clearly defined by the late territorial Supreme Court through Mr. Justice Bach (Gassert v. Bogk, 7 Mont. 585), that the law is no longer, with us, an open question. The court in that case says: “ The cases cited may be divided into three classes: (1) Those cases in which the papers (deed and bond) upon their face recite that the transaction is one for the security of a loan. (2) Those eases where evidence aliunde shows that a mortgage and not a sale was intended, including cases where the evidence shows such facts as a previous loan, an application for a loan, great difference in value, application on the part of grantee to have the debt or portion thereof repaid. (3) Cases in which the courts hold that a deed with contract to reconvey are per se mortgages.”
The case at bar is not included within the first class. The court in Gassert v. Bogk disavow the doctrine in the third class. The only standing for appellants is to bring themselves within the second class.
Changing the names of parties to those in this case, we may read again from Gassert v. Bogk, page 599: “ In the case under consideration, the deeds and contract upon their face show an absolute conveyance. No obligation appears therefrom binding Carl Kleinschmidt to pay anything; no words appear from which the characteristic of security, so essential to a mortgage, can be deduced. Prima facie, the transaction is one of sale. It is incumbent upon the plaintiffs to produce some evidence tending to show that a mortgage in fact was intended.” And at page 600, same case, as follows: “Where the papers do not show that *490a security was meant, it is incumbent upon the party seeking to establish a mortgage to show that a mortgage was intended.”
The court in the case before us has found from the evidence that a mortgage was not intended, but that the papers were intended as an absolute sale, and an independent privilege to repurchase. The reason and the authority of Gassert v. Bogk are sufficient in this case.
We are of opinion that the judgment and order denying the motion for a new trial should be affirmed, and it is so ordered.
Blake, C. J., and Harwood, J., concur.