(dissenting). This is an appeal from a rather drastic foreclosure judgment on notes and mortgages given by the plaintiff to defendant for a separator and two tractors. The plaintiff sued to cancel the securities and defendant obtained a foreclosure judgment for over $5,000. The deal commenced by the purchase of a 20 mogul tractor for $1,850, and a separator for $475; then a Titan tractor for $2,270. On the Titan tractor the mogul was taken in at a margin of $1,200, and notes were given for $400, $400, $270, in all, $1,070, making $2,270. It is conceded that on the first deal there was paid on the four notes given for the tractor and separator sums as follows: $217.74, $250, $87.70, and $271.10, amounting to $724.54. The contention relates mainly to the Titan tractor. It appears that this was no good; it was a worthless piece of junk. It was a damage to plaintiff. Defendants tried their best to make it work and failed. Then they took it to their yards, where they still have it, or had it at the time of the trial. The plaintiff refused to have anything to do with it. They first sold it to one Sanderson, who, it seems, had no use for it. Then they arranged with Sanderson to sell it, in his name, to the plaintiff, and in like manner they tried to arrange with the plaintiff to sell it, in his name, to some other party. Of course there was a direct conflict in the testimony, but there are facts in the case which speak louder than words. It is certain that in selling the tractor to the plaintiff that the defendants and Sanderson worked together. It is certain the Titan was no good, and one of the facts which bears most strongly against the defendants is the pains they took to make evidence in their favor and to weave a net around the plaintiff, and to hamper him with mortgages on every particle of his property,— his machinery, his crops, and his lands. On March 13, 1913, to secure $3,444, .the Harvester Company took a real estate mortgage on a quarter section of land (S. W.J 8-162-85). On March 13, 1913, they took a mortgage on personal property described thus:
“One 45-horse power Titan gas tractor d£TA354E, International *290Harvester Company make; one bay horse 8 years old, weight 1,100 pounds, named Bill, valued $150; one sorrel mare 11 years old, weight 1,300 pounds named Beauty, valued $200; one black mare 4 years old, weight 1,100 pounds named Topsey, valued $250; one black horse 5 years old, weight 1,300 pounds named Prince, valued $250; one cow spotted red and white 8 years old, weight about 1,000 pounds; one wide tire Lake City wagon, complete with double box; one McCormick 7 ft. binder, complete vdth track, new 1911; one Racine separator 28x48, complete with main drive belt and all other belts, feeder, blower & weigher; one 580 galvanized oil tank for gasolene, complete with wagon gear, together with all increase of said live stock, and all repairs and supplies for the remainder of said property; also all wild and tame crops of every nature now growing or hereafter planted, sown or grown, cultivated or harvested during the year 1913 on the following described real estate situated in Renville county, State of North Dakota, more particularly described as follows, to wit: the southwest | of section 8, township 162, range 85, also undivided f interest in crop on east J of the northeast of section 19, township 162, range 85.”
On September 28, 1914, they took a mortgage on the same and some other property and on the crops to be grown during the year 1915 on the S.W.J of Sec. 8-162-85 and the N.E.-J of 9-162-85. Under the crop mortgage they took the grain produced on the land, which was sold, and the proceeds, about $960, is held in a bank to satisfy the judgment. Plaintiff says: “They told me that if I did not turn the wheat over they would clean me out.” (33) According to the testimony of plaintiff, the second and third mortgages were obtained by fraud and deception, and by threatening the plaintiff to send him over the road for selling a separator described in the first mortgage. The testimony is long and conflicting and covers 230 typewritten pages. It does show that the plaintiff was sadly overreached, and if he did knowingly give such mortgages he was a mere dolt who needed a guardian. However, we may rest the decision of the case on the fact that the Titan which defendant sold the plaintiff for $2,270 was mere worthless junk; that it was a damage to plaintiff while he experimented in trying to work with it. The notes given by plaintiff for that machine were dated September 6, 1912. They should be canceled and adjudged void, and on the same date the plaintiff should be given credit for $1,200, paid on the machine. *291Then all payments which have been made should apply on the prior deal, that is, on the first four notes given for the mogul and the separator, and judgment should be entered in favor of the defendant for the balance due. The money in the bank, $960 more or less, will be at once applied on the same and on payment of the balance if any. The mortgages should be canceled and discharged. The judgment should be reversed and vacated. The plaintiff should recover costs and disbursements on this appeal.
Judgment should be entered accordingly.