#### J. L. Fisher, appellee v. Fred J. H. Lawson, appellant.

Filed April 12, 1918.

No. 19934.

1. Land Contract: Agreement, to Assign: Rights of Assignee. An agreement to assign a land contract between third parties lor the sale and purchase of real estate is not a contract for the_ sale of land. The assignee of the contract takes only the righrs of the assignor.

2. Specific Performance: Review. The evidence reviewed, and found sufficient to sustain the findings and decree of the district court, and the same are adopted by this court.

Appeal from the district court for Wheeler county: James R. Hanna, Judge.

*Affirmed.*

*T. F. A. Williams, A. L. Bishop*and *F. J. Lawson,*for appellant.

*O. A. Williams, Williams & Kryger*and *B. O. Williams, contra.*

Hamer, J.

This action was brought in the district court for Wheeler county to foreclose a contract between the plain*399tiff and defendant by which the plaintiff sold a certain contract between the Omaha Safe Deposit & Trust Company, by which the trust company agreed to sell to one Russell O. Woodworth the northeast quarter of section 19, township 24 north, of range 10 west, of the sixth principal meridian, situated in said Wheeler county, and by which Woodworth agreed to purchase said land and pay $2,400 therefor. By the terms of tl|3 contract in question in the case Lawson agreed to pay Fisher the sum of $2^800 for the said contract and the assignment of it to him as follows.: $1,600 to he secured by a mortgage on land owned by Láwson, and to assume the payment of $1,200 the remainder due to the Omaha Company. When such payments were made, the Omaha Safe Deposit & Trust Company was to transfer said premises to Fisher’s assignee. A trial in the district court for Wheeler county resulted' in a decree for plaintiff, and the defendant has appealed.

Appellant contends first that the contract in question was one for the sale of land, and that' plaintiff was required to furnish him with a good merchantable title to said real estate before .appellant paid any part' of the purchase price for the assignment of the contract in question, and that the finding and judgment were erroneous for that reason. An examination of the contract is a sufficient answer to this assignment. The agreement between Fisher and the appellant is one whereby Fisher simply agreed to assign and deliver the contract between the Omaha Safe Deposit *&*Trust Company and Woodworth to Lawson, with the consent of the trust company, which the plaintiff obtained in writing. The finding of the district court on that point appears to be right.

It is further contended that the evidence is insufficient to sustain the decree. The record shows that Lawson was to have possession of the premises in question when he executed the mortgage for $1,600 to the plaintiff. It clearly appears that appellant took *400possession of the land without executing the mortgage for about four years; that plaintiff sent a note and mortgage to the bank at Elgin, Nebraska, for $1,600 for appellant to execute; that the bank gave him notice that they were there to be signed and acknowledged, yet the defendant failed and refused to sign and execute the same. It further appears that appellant never paid the remainder due on the Woodworth contract to the trust company, and never assumed the payment of i!.e $1,200, or any other sum whatever, and never carried out any part of his contract with Fisher.

Defendant never paid any taxes on the land in question, but purchased an outstanding certificate of tax sale when lie ought to have paid the taxes himself. His only excuse for his conduct was that plaintiff had not furnished him with a good title. It appears that there was a mortgage of record on the land in question which had not been released of record, and to comply with the defendant’s demands the Omaha Safe Deposit & Trust Company brought a suit in the district court for Douglas county for a cancelation of the $800 mortgage and to quiet the title to the land described in the Woodworth contract, and obtained a decree quieting the title and perfecting the same so that it could make a good, perfect and merchantable title to the defendant; that the plaintiff paid the trust company the rémainder dueon the Woodworth contract, and has always been ready and willing to make a good and perfect deed to the said land in question to defendant upon the performance by him of the conditions of the contract between them. As we view the record, there appears to be no sufficient excuse for defendant’s failure to perform his agreement.

While it is earnestly contended that the land itself Was sold, the language of the contract is: “Within 30 days after this date, upon the payment of said party of the second part of the price above named and delivery of said securities, said J. L. Fisher agrees to assign contract for the (describing the land).” This *401would clearly appear to be an agreement to assign the contract. It is certainly not an agreement to execute a deed. The contract made does not seem to justify the defendant’s contention, and the finding and judgment of the district court is fully justified by the evidence.

The decree of the district court seems to be clearly right, and it is

Affirmed.

Sedgwick, J., not sitting.