(concurring specially). While I concur fully in the construction which the majority have placed upon the contract entered into 'by the parties' hereto, as well as in the holding that foreclosure under chapter 138, Laws 1913, is the proper remedy, I am unable to agree in full with what my colleagues have held. The trial court, construing the contract as a mere option that was forfeited by failure to pay the note when due, held that, from time of such forfeiture, appellant was liable for the -reasonable value of the use of the premises, and was entitled to credit for the payment he had made and for the value of the improvements he had placed upon -the premises. Without determining whether, if this had been an option contract, the trial court’s adjustment of credits would have been right, we need only consider w'hat were the rights of the parties under this contract — it is their rights and obligations thereunder, both in case of performance by appellant and in case of nonperformance, that we must determine.
Inasmuch as this contract related to but a half’ interest in the land covered thereby, .appellant, in any case, is liable for one-half .the value of the use and occupation of such land, and entitled to be credited with one-half the value of improvements ■placed thereon by him. A's to these' matters the contract for sale and -purchase has no relation whatsoever.
But as to the half interest contracted to be sold and purchased, the rights of these parties should be exactly what they would be under any ordinary contract of sale and purchase under *27which the vendee enters into and holds possession. In such case the vendee is not entitled to any credit on the purchase price for improvements made 'by him, neither can be he bold-en for the use of the land even when 'he fails to make payment.
If I am correct in the above, it follows that my colleagues are in error in holding that, in case appellant fails to make payment within the time fixed therefor, the judgment of the trial court should be affirmed. Such judgment, so far as it relates to the rights and liabilities under 'the contract, is fundamentally wrong, being based upon an entirely erroneous theory of the contractual rights of these parties.
The judgment of the trial court should be reversed, with costs in favor of appellant. The trial court should be directed to determine the amount due under -the contract, which is the amount of the note and interest, to decree strict foreclosure unless payment is made within time fixed, and to decree that, in case of failure to make payment within such time, appellant be foreclosed: ,as to all rights in sueh land. As regards the other half interest in the land covered by the contract for sale, as well as the other lands, the finding's and conclusion's of the trial court should be affirmed, except that the charge of $2,100 should be $1,050, the credit of $1,000 should be eliminated, and the credit of $568.92 changed to $284.46.