(dissenting). I cannot agree to the legal principles announced by my associates in this case. This action was brought to determine adverse claims under the provisions of chapter 31 (§§' 8144-8165) of the Code of Civil Procedure of the Compiled Laws of 1913. The complaint is drawn in strict conformity with the form provided by § 8147, Compiled Laws, and the prayer for judgment demanded involves all six of the grounds provided for in the prayer for judgment in this section. The complaint alleged that the plaintiff was the owner of the premises, and in the fifth subdivision of the prayer for judgment asked for $2,000 damages for the use and occupancy of the premises. The defendant in his answer, after denying the allegations of the plaintiff’s complaint, further alleged “that he is the owner in fee of the real estate described in the complaint, *97having purchased the same from Frank Havlicheck, the owner thereof, and that possession of the said premises was delivered over to him at the time of the purchase by the said Frank Havlicheck,” and prayed for judgment that he be adjudged the owner in fee of the premises, and that plaintiffs be decreed to have no right, title, or interest therein, and be enjoined from further asserting the same. It is true as stated in the majority opinion that upon the request of the defendant, certain issues were submitted by the trial court to a jury. The only questions submitted were whether or not the plaintiffs had complied with their part of the agreement with Havlicheck, and the value of the rents and improvements. The jury returned a verdict in favor of the plaintiffs, and also found the value of the use and occupancy of the land to be $750. The court thereupon made findings of the fact and conclusions of law the same as in an action in equity, and judgment was entered pursuant to such findings and conclusions. The answer of the defendant asserting title in himself and asking for affirmative judgment was a counterclaim. Power v. Bowdle, 3 N. D. 107; 21 L.R.A. 328, 44 Am. St. Rep. 511, 54 N. W. 404; Betts v. Signor, 7 N. D. 399, 75 N. W. 781. Section 8153, Compiled Laws, provides: “ . . . A defendant interposing a counterclaim shall, for purposes of trial, be deemed plaintiff, and the plaintiff and codefendants against whom relief is sought, shall be deemed defendants as to him. The court in its decision shall find the nature and extent of the claim asserted by the various parties, and determine the validity, superiority and priority of the same.” It was the duty of the court to determine and adjudicate the claims set forth in defendant’s answer, even though plaintiffs’ cause of action might fail. Reichelt v. Perry, 15 S. D. 601, 91 N. W. 459. Spencer v. Beiseker, 15 N. D. 140, 107 N. W. 189. Whether or not the action is to be regarded as a legal or equitable .action must be determined by the pleadings, and under the issues framed by the pleadings, this is an equitable action. Mitchell v. Black Eagle Min. Co. 26 S. D. 260, 265, 128 N. W. 159, Ann. Cas. 1913B, 85; Tracy v. Wheeler, 15 N. D. 248, 249, 6 L.R.A.(N.S.) 516, 107 N. W. 68; Powers v. First Nat. Bank, 15 N. D. 466, 470, 109 N. W. 361. While a jury may be called to try certain or all issues of fact, the verdict is advisory only, and it still remains an action in equity. Reichelt v. Perry, 15 S. D. 601, 91 N. W. 459; O’Neil v. *98Tyler, 3 N. D. 47, 53 N. W. 434; Spencer v. Beiseker, 15 N. D. 140, 107 N. W. 189. The fact tbat the trial court considered this an action in equity is apparent from the fact that findings of fact and conclusions of law were prepared and signed by the trial court, and the judgment in the case was entered pursuant thereto. It is true, the trial court adopted the verdict of the jury, but this did not change the case to an action at law. In the majority opinion it is said: “This appellate court is confronted with the fact that this action, though in equity, was tried as one at law, and with an appeal taken as in the law case.” This fact, however, in no manner changed the form or scope of the action. This court has held that in an equity case, where the district court calls in a jury for advisory purposes, that an appeal to this court cannot be taken under the provisions of the so-called Newman act. Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 759; Spencer v. Beiseker, 15 N. D. 140, 107 N. W. 189. Hence, surely no inference can be drawn that the scope of the action is limited by the fact that the appeal was taken as in an action at law.
One of the propositions which is most earnestly contended for by appellant in this case is that the plaintiffs had mistaken their remedy, and that their proper remedy would be to bring an action for specific performance. It seems to me that this reasoning is fallacious and entirely contrary to the provisions of the statute under which the action was brought. One of the principal objects intended to be accomplished by this form of action was to avoid a multiplicity of suits, and make it possible to have the estates and interests of the various persons claiming adversely to one another adjudicated and determined in one action. In such action the court may decree that plaintiff do equity by paying whatever sum is necessary, before granting equitable relief. Powers v. First Nat. Bank, 15 N. D. 466, 471, 109 N. W. 361. Judgment may be entered reforming deed, and foreclosing same as a mortgage. Murphy v. Plankinton Bank, 18 S. D. 317, 100 N. W. 614. The very purpose of the action, as defined by the legislature, is to determine adverse claims. The defendant has interposed a counterclaim, — alleging that he is the owner and that the plaintiffs have no interest in the premises. Defendant asked that a jury be called, and certain issues of fact tried to the jury. Can he now be permitted to say that because this favor was granted that the action *99has been changed from an equitable to a legal action, or the scope of the action limited? I believe not. Under the express provision of the statute, the court, under the issues as framed by the pleadings in this case, should adjudicate “the nature and extent of the claims asserted by the various parties, and determine the validity, superiority, and priority of the same.” Comp. Laws § 8153; Spencer v. Beiseker, supra. Mitchell v. Black Eagle Min. Co. 26 S. D. 260, 265, 128 N. W. 159, Ann. Cas. 1913B, 85. In my opinion all the rights and estates, both legal and equitable, of these parties, should be determined in this action, and even though it be conceded that the judgment should be reversed, still the action ought not to be dismissed, but remanded for a new trial in order that the proper proceedings might be had in the trial court.
Prior to the escrow agreement, the plaintiffs and the Havlichecks entered into executory .contract whereby the Havlichecks agreed to convey the premises involved to the plaintiffs. “While there is a diversity of judicial opinion as to the relations existing between the parties to such a contract, the great weight of authority is to the effect that upon the execution of the contract the purchaser becomes the beneficial owner in equity, and the vendor retains the legal title in trust for such vendee.” Woodward v. McCollum, 16 N. D. 42, 49, 111 N. W. 623. “Equity treats things agreed to be done as actually performed, and where real estate is sold under a valid contract, and the deed executed and placed in escrow, to be delivered at a future date on payment of the purchase money, evidenced by promissory note-due on said day, the equitable title passes at once to the vendee.” Fouts v. Foundray, 31 Okla. 221, 38 L.R.A.(N.S.) 251, 120 Pac. 960, Ann. Cas. 1913E, 301. This executory contract remained unaffected by the escrow agreement. Even though the delivery of the deed be held void, still the plaintiffs are the equitable owners of the premises, and the defendant, Olson, having purchased with notice, merely holds the legal title in trust for the plaintiffs. Plaintiffs’ equitable title has been held sufficient to sustain their position in this action. Mitchell v. Black Eagle Min. Co. 26 S. D. 260, 267, 128 N. W. 159, Ann. Cas. 1913B, 85; Collins v. O’Laverty, 136 Cal. 31, 35, 68 Pac. 327. But even though plaintiff’s title was insufficient, still under the issues tendered by defendant’s answer claiming *100title in bimself, the rights of these parties could and should be determined in this action.
Nor do I agree that the failure on the part of the plaintiffs to pay $3,000 in currency is such departure from the terms of the .escrow agreement as will avoid the delivery of the deed to the plaintiffs. In the usual course of commercial transactions, actual currency is seldom used, and even in cases where a tender or deposit is required to be made in currency, it may be done by check unless specific objection is made thereto. Comp. Laws, § 5816; North Dakota Horse & Cattle Co. v. Serumgard, 17 N. D. 466, 29 L.R.A.(N.S.) 508, 138 Am. St. Rep. 717, 117 N. W. 453; Ugland v. Farmers’ State Bank, 23 N. D. 536, 137 N. W. 572. It is true that it is a rule of law that where an instrument is deposited as an escrow, it cannot be operative until the conditions’or the event stipulated upon is performed or has happened. But in applying this rule, it should be borne in mind that it was laid down nearly four centuries ago, and that while it has been adhered to since that time, and remains a correct statement of an abstract principle of law, still the conditions under which it was formulated no longer exist, and it should be construed in accord with the conditions of to-day. “When the reason of a rule ceases, so should th'e rule itself.” “The law respects form less than substance.” These are among the maxims of our jurisprudence.’ In the days when this rule was formulated, a payment meant payment in money. To-day, in commercial transactions the actual currency, is rarely used, and, as indicated by this court in the two decisions cited above, a check drawn upon a solvent bank, where the drawer has ample funds on deposit so it will be paid on presentation, is for every purpose as good as cash.
Havlicheck never called for the money. If he had it would have been paid to him, and the papers delivered to him. In what manner was he prejudiced ? If he had gone to the depositary, he would have received exactly what he claims to be entitled to receive under the escrow agreement. It appears that no objection was made to the fact that the payment was. made by check, and in view of the fact that the bank accepted the check and treated it as cash, and stood willing and ready to pay to Havlicheck the full amount thereof in cash at any time he called for it, it seems to me to be indeed a highly technical *101and unjust rule to say that this alone avoids the delivery of the deed. “Where the obligee may fairly be said to have performed his part, although not all the conditions have been complied with, the delivery will be sometimes upheld, if no real injury is caused thereby.” 16 Cyc. 577. In Boyd v. American Sav. Bank & T. Co. 40 Wash. 511, 82 Pac. 904, the syllabus reads: “Where the assignee of the prospective purchaser of stock in escrow made arrangements with the holding bank whereby drafts of the prospective seller, drawn on the payments which by the escrow agreement were to have heen made to the bank for the prospective seller’s credit, should be honored, and the seller was informed by the bank that, when he drew, the amount due would be placed to his credit, and prior to any declaration of forfeiture the amount due was in fact so deposited to the seller’s credit, there was a substantial compliance with the contract, so as to prevent a forfeiture, though at the time the seller was informed of the arrangement there were payments overdue under the contract.”
In this case the depositary was a responsible financial institution. And there can be absolutely no question but that Havlicheek could have had his $3,000 in cash any time he might have asked for it.
The assistant cashier of the bank testified as follows:
This check was presented to us by Willets & Thornhill for the purpose of complying with this agreement.
Q. And it was received by you as such ?
A. We would have paid the money at any time.
Q. Mr. Byorum, after the receiving of this check, “exhibit 1,” by you, were you ready at all times, was the bank ready at all times, to turn over the amount to the parties entitled thereto .under the contract ?
A. It was.
Q. And did you receive that check as cash ?
A. We received it the same as cash.
Q. Beady to pay the cash any time it was demanded?
A. Yes, any time it was demanded.
The trial court and jury found that the defendant took title with full knowledge of the rights of the plaintiffs, and that the plaintiffs had performed their part of the escrow agreement, and it seems to me that this holding is correct; but even though it is not, this case should *102not be dismissed, but remanded for a retrial in tbe district court, as all the rights and estates of the parties can and ought to be determined in this action. I am authorized to state that Justice Burke concurs in this dissent.