This is an action to rescind a contract for the purchase and sale of 160 acres of land, in Hettinger county in this state, and to recover the consideration paid under the contract.
The plaintiff’s claim, as stated in the complaint is that the defendant R. A. Grant “falsely and fraudulently represented that said land was much nearer Mott, North Dakota, and Burt, North Dakota, both market points for said land, than the same in fact is; that he falsely and fraudulently represented that said land was all good farming land with no gumbo or stone-on the same, when in truth and in fact the said land has stone on the same and much of the same is gumbo; that he falsely and fraudulently represented that said land or place had a good well of water thereon, when in truth and in fact the water thereon caiinot be used; that he falsely and fraudulently represented that said land was worth $40 per acre and that all land adjoining and, near was selling for that amount, when in truth and in fact said land is not worth to exceed the sum of $25 per acre; that he falsely and fraudulently induced this plaintiff to buy said land for the sum of $39 per acre or a total of $6,24-0.” And that the plaintiff, relying upon said representations, agreed in writing to buy the premises, and paid to the defendants the sum of $1,000 as paid of the purchase price. That by reason of the falsity of said representations, the plaintiff was deprived of all the benefits which he otherwise would have derived from the purchase, and that as soon as he discovered that the representations were false, he demanded a rescission, and a return of the $1,000 which he had paid to the defendants. ■.
The defendants, in their answer, admit that they sold the land in controversy to the plaintiff under the written contract attached to the answer, and that the plaintiff paid $1,000, as part of the purchase price according to the terms of such contract. The answer further avers that the plaintiff has defaulted in the terms of the contract, rendering the same subject to cancelation, and that the defendants have elected to cancel and terminate the contract. The defendants prayed judgment:
That plaintiff’s action be dismissed; that the land contract be canceled and terminated, and all rights of the plaintiff thereunder foreclosed, and that the $1,000 paid by the plaintiff be forfeited to the defendants as liquidated damages under the terms of the contract.
*549The case was tried to the court without a jury. The court made findings of fact, among others, to the effect: “That prior to entering into said contract the plaintiff personally examined the land on two different occasions, that the defendants did not misrepresent to' the plaintiff that there was no gumbo or stone on the land; that the defendants did not misrepresent the distance of said land from Mott and Burt; that the defendants did not misrepresent the value of said land; that prior to the purchase of the land the plaintiff rode out from Mott to said land on two different occasions and had an opportunity to observe the distance of said land from Mott and Burt; that the plaintiff did not rely upon any of the statements made by the defendants relative to the situation of the land or the character of same; that at the time of entering into said contract the reasonable value of said land was $40 per acre; that the defendants did not misrepresent the well; that at the time of making said contract said well did contain average North Dakota water; that said land contained 160 acres and had 150 acres broken thereon and under cultivation, and that it was 8-J miles from Mott and 6.miles from Burt; that the defendants did not commit any fraud upon the plaintiff in connection with the sale of said land.”
The court further found: “That on the 24th day of September, 1917, the plaintiff and defendants entered into the following agreement' in writing: ‘September 24th, 1917. I hereby agree to surrender to B. A. Grant contract for deed which I hold conveying the N. E. ¿ of 14-132-92, upon payment of $200 on or before December 1st, 1917, providing that he will be put to no further expense in connection with this settlement.7 77 .
The court also found that the defendants have at all times been willing, ready, and able to comply with the terms of said land contract and settlement agreement, and that the defendants have incurred expenses aggregating $200 in conducting the litigation in the instant case. The court ordered judgment': (1) That the contract “be and the same is hereby in all things foreclosed and canceled, and the plaintiff barred from all right to redemption thereunder, and the defendants be and they are hereby given immediate possession of said premises, and defendants7 title to said premises is quieted as to any and all claims of the plaintiff to said land;” (2) that the plaintiff have judgment against the defendants for the sum of $200, with interest thereon at 6 *550per cent from September 24, 1917; and (3) that each party pay his own costs and disbursements. Judgment was entered as ordered, and defendants appeal.
The only error assigned on this appeal is that the court erred in rendering judgment against the defendants for $200, and interest. The appeal is taken from the judgment roll proper. No statement of case has been settled. Hence, we have no means of knowing what evidence was introduced, stipulations made, or proceedings had in the court below. We have before us merely the pleadings, the findings of fact, conclusions of law, and the judgment. It is, of course, elementary that the judgment comes before us with all presumptions in its favor. And the appellant has the burden of showing error. And he must present a record affirmatively showing such error. 2 Enc. Pl. & Pr. 423, 424; Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592. “A mere suspicion or color of error is not sufficient, but every reasonable intendment establishing the regularity of the decision rendered must be removed, as all doubtful interpretations will be resolved in favor of the validity of the action of the trial court.” 2 Enc. Pl. & Pr. 425. Where a material fact or circumstance essential to establish the error is omitted, the presumption on appeal is that it would have sustained the decision objected to, if included. And where the record does not affirmatively show error, it will be presumed “that every proceeding below essential to its legality was validly taken, and that every fact essential to its regularity was legally shown. And where, on any contingency supposable in the state of the record, the decision below might have been valid, such contingency will be so presumed.” 2 Enc. Pl. & Pr. 425, 428-433.
And so, while the settlement agreement was not an issue under the pleadings, we must assume that it properly became one by action of the parties during the course of the trial. The plaintiff in his brief asserts that the agreement was offered in evidence by the defendants. As already stated we have no means of knowing what the fact is with respect to the admission of this agreement, but we must assume, in support of the decision appealed from, any contingency which might have occurred upon the trial under which it might have been proper for the court to render the judgment which it did. Hence, we must assume that the settlement agreement came properly before the court by action of the defendants themselves.
*551It will be observed that tbe defendants prayed for affirmative equitable relief against tbe plaintiff. And defendants were awarded tbe affirmative relief asked. The land contract was adjudged canceled, plaintiff’s rights in the land were terminated, and defendants were awarded the immediate possession of the land. In this connection it should be noted that there is nothing to indicate that the defendants ever served notice of cancelation of the land contract as required by article 4, chapter 30, Code of Civil Procedure. Nor is there any contention that the defendants have paid to the plaintiff the amount stipulated in the settlement agreement, or that they have made offer of payment, followed by deposit, in accordance with § 5815, Compiled Laws 1913, and thereby extinguished the obligation. The defendants availed themselves of the settlement agreement, and received the benefits of its provisions, upon the trial. The defendants were awarded immediate possession of the land; and all rights of the plaintiff thereto, including the right of redemption, were annulled. This portion of the judgment was decidedly favorable to the defendants. It was more favorable than the court was required to render under the facts found, —if the settlement agreement is excluded. It seems probable that it was on the strength, and by virtue, of that agreement that the court decreed that the plaintiff be barred from all right of redemption in, defendants given immediate possession of, and defendants’ title quieted against all claims of the plaintiff to, the land.
On this appeal, the defendants seek to retain the benefit of this favorable portion of the judgment. They have carefully limited their assignments of error so as to assail only that portion of the judgment which awards to the plaintiff judgment against the defendants for the amount stipulated to be paid under the settlement agreement. The only question presented on this appeal is whether that portion of the judgment should be eliminated and the remainder of the judgment allowed to stand. Upon the record before us we are not prepared to say that the trial court erred in rendering the judgment which it did. The defendants asked for and received equitable relief. We cannot say that the trial court erred in requiring these defendants to pay to the plaintiff the amount stipulated in the settlement or compromise agreement of September 24, 1917. It follows from what has been said that the judgment appealed from must be affirmed. It is so ordered.
*552Bruce and Birdzeul, JJ., concur.