dissenting.
I respectfully dissent from the opinion of the Court. While it is conceivable that a duly exercised option to purchase realty might, in certain circumstances, be given legal effect as a security interest, the facts do not justify such a result in this case. By the Court’s opinion, a clearly worded option to purchase is transformed into a mortgage by the testimony of other interested parties as to their belief of LesterHibnes’ intent ten years earlier. The record indicates one of the reasons LesterHibnes entered into the option agreement was to protect their interest in Fretwell’s equity in the property, but absolutely no evidence indicates the exercised option was enforceable as a lien for repayment of a debt. When determining the effect of a deed absolute on its face — or, as here, an unequivocal option to purchase — as a mortgage, the dispositive question is whether a debt remains after execution of the instrument. After noting the factors listed in Dickens which are recognized by the foregoing majority opinion, our Supreme Court stated in Credit Bureau of Preston v. Sleight, 92 Idaho 210, 216, 440 P.2d 143, 149 (1968), that “[w]hile all these factors are to be considered, the controlling test to be applied is whether the grantor sustains the relation of debtor to the grantee after the execution of the instrument.” No evidence in the record indicates, and no one contends on appeal, that Miller was a debt- or to Lester-Hibnes after the option was exercised.
Nor am I convinced the evidence yields favorable responses to the criteria listed in Dickens. For example, in considering the second factor, the majority indicates it believes the debt survived execution of the option because Miller-Anderson’s agreement to pay Lester-Hibnes contemplated future performance. The Court’s opinion does not explain how Lester-Hibnes could use the option to enforce payment of a perceived debt. In fact, there was no legally recognizable debt until the trial court in' its judgment created a lien in favor of Lester-Hibnes. Even so, McGill offered to pay $12,000 to Lester-Hibnes in the summer of 1972, but Lester-Hibnes declined to withdraw their claim, insisting they were the equitable owners of the property by *567virtue of their exercise of the option to purchase. The majority also places significance on the payment Lester-Hibnes made to Miller-Anderson because it “merely covered Fretwell’s delinquent payments and did not compensate Miller-Anderson for their ownership ‘equity’ — i.e., the remaining balance (approximately $15,000) on the Fretwell contract.” But Lester-Hibnes, by exercising the option, obligated themselves in writing to assume the Fretwell contract terms. Thus, Miller-Anderson would receive compensation for their equity in installments. The Miller-Anderson/McGill transaction appears to be an assignment, in exchange for immediate cash payment, of Miller-Anderson’s right to receive installment payments according to the terms extended to Fretwell. Lester-Hibnes also agreed in writing to assume the Skidmore payments, and McGill did not. LesterHibnes maintained at trial they tendered no further payments on the Fretwell or Skid-more contracts because Miller-Anderson did not establish an escrow account or provide Lester-Hibnes with escrow instructions. Shortly after they exercised the option, Lester-Hibnes were faced with McGill’s claim to the property. I believe much in the record is consistent with Lester-Hibnes’ assertion that they intended, by exercising the option, to purchase the property.
An option creates in the optionee an opportunity for a limited time to purchase the property for a specified price. Gard v. Thompson, 21 Idaho 485, 123 P. 497 (1912). For the period fixed by the option, the optionor is committed, unless the option is revocable, to make a sale to the optionee at the latter’s election. Crockett v. Lowther, 549 P.2d 303 (Wyo.1976). When the optionee elects to purchase within the time specified in the option, a bilateral contract binding on both parties is formed. Boothe Financial Corporation v. Loretto Block, Inc., 97 N.M. 496, 641 P.2d 527 (App.1982); Crockett v. Lowther, supra. Upon exercise of an option to purchase, the optionee becomes the owner of a contract interest in the property as the vendee under the exercised option. 77 AM.JUR.2d Vendor and Purchaser § 46, 230-31 (1975).
The record in this case indicates that Lester-Hibnes sought the option from Miller-Anderson because Fretwell had defaulted on his purchase of the property. By purchasing the property on the same terms available to Fretwell, Lester-Hibnes could later sell the equity Fretwell had acquired in the property, thereby recouping the amount owed to them by Fretwell. The option agreement was not rendered less effective if Lester-Hibnes, by exercising the option, hoped eventually to recover a debt. After Lester-Hibnes elected to purchase the property, Lester-Hibnes became an equitable owner of the property. Because McGill purchased from Miller-Anderson with notice of an interest claimed by Lester-Hibnes in the property, McGill is not entitled to the protection afforded a bona fide purchaser under I.C. § 55-812. McGill’s interest in the real property remains subject to the prior contract of Lester-Hibnes to purchase the property. Accordingly, I would reverse the trial court and remand for a determination of the equitable lien, if any, McGill (not LesterHibnes) is entitled to in the property.