— The first question discussed is as to the proper construction to be given to the written agreement set out in the answer and admitted in the reply. That agreement is between Eva Harvey, Jarvis Harvey, Cora B. Ellyson, and J. T. Ellyson, parties of the first part, and Van Paten & Marks of the second part. It shows that the parties of the first part had that day— 'November 7,1888 — delivered to the second party their warranty deed for six hundred and forty acres of land, described, in Stark county, Dakota. Said agreement contains the following:
“Said second parties agree within a reasonable time to ascertain the value of said land, by personal inspection or otherwise, and, after the actual cash value has been so obtained by them, to apply the value of said land towards the payment of the note and mortgage of J. Harvey & Son, held by the parties of the ' second part, for the sum of twenty-three hundred and seven and six one-hundredth dollars, dated November 2, 1888, and secured by chattel mortgage on the stock of goods of J. Harvey & Son, in Pleasant Plain, Jefferson county, Iowa. And it is further agreed by the parties of the second part that, in the event the purchase price of said land should be for the amount of said claim or less, they give to the said J. T. Ellyson the option within one year to redeem said land upon the payment of the purchase price of said land and expenses, with eight per cent, interest from date, then ' the said second parties agree to deed to said J. T. Ellyson the six hundred' and forty acres of land *163described herein. And the said second parties further agree to give to the said.J. T. Ellyson the option to purchase said land at the price the said second parties may be offered for said land within one year from date hereof for the time of forty-eight hours from the time of notice to said Ellyson of said offer.”
The contention is whether the value of the land was to be* as ascertained by the appellants, or the actual cash value, as might be otherwise ascertained. The language of the writing is plain and explicit. The appellants were to “ascertain the value of said land, by personal inspection or otherwise, and, after the actual cash value has been so obtained by them, to apply the value of said land towards the payment of the note and mortgage.” It is the cash value so ascertained that is to be credited. It is certainly unusual for a vendor to permit a vendee to fix the value of the article sold, and, were it not for the right given to J. T. Ellyson to redeem from the sale to the appellants, we might hesitate to say that such was the intention of the parties. This right to redeem from the sale by payment of the price that the appellants might ascertain, with expenses and interest added, afforded ample opportunity against any undue estimate of the value, of the land. If the appellants underestimated its value, the right was reserved to redeem it at that value. The option to purchase the land at the price that might be offered to the appellants was also reserved. With these rights reserved, it was entirely reasonable to permit the appellants to fix the value, and we think such was clearly the intention of the parties.
There is no evidence that the appellants acted fraudulently in fixing the value they did. They acted largely upon information received from a person whom they sent to inspect the land and ascertain its value. There is a marked difference in the opinions of the witnesses as to the value of the land, and, so far as appears, *164we think the appellants fixed the value at what they honestly believed it to be worth. The appellees contend that that value is so grossly inadequate as to be a fraud upon their rights* A number of witnesses were called to testify to the value' of the land. Their opinions vary from two dollars to nine dollars per acre. A number of these witnesses showed that they had such limited information upon the subject as to entitle their opinions to but little weight. The appellants having, as we think, the right, under the agreement, to fix.the value at which the land should be credited, and the parties, in the absence of fraud, being concluded by that value, we need not inquire what the actual cash value of the land was. We make this mention of that subject for the purpose of saying that the evidence does not disclose such gross inadequacy of consideration as to justify an inference of fraud.
Our conclusion is that the judgment in favor of the appellees and against the appellants should be reversed, and that judgment and decree of foreclosure should be entered in favor of the appellants upon their counterclaim for the balance due them after crediting the appellees with the value of the land as ascertained by the appellants, less the expenses of ascertaining the same, and the payment of back taxes. Revebsed.