Coates

This is an action to recover the possession of real estate in which plaintiff recovered judgment, and defendants appeal from the judgment and an order refusing a new trial.

Appellants, who are husband and wife, entered into possession of the premises in controversy under a contract with plaintiff dated August 8, 1883, by which they agreed to purchase the same for the sum of five thousand two hundred dollars, to be paid on the eighth day of August, 1886, with interest payable monthly. It was also stipulated as follows: “And it is further mutually agreed and contracted that in consideration that the said obligees have immediate and absolute possession of said property, that in case they do not pay said interest herein specified to the obligor, he may enter in and take possession thereof without process of law.”

Appellants have remained in possession ever since, and continued to pay the stipulated interest until about August 8,1889, when they refused to make further payments, and notified plaintiff that they claimed title adversely to him.

October 19, 1889, they executed, acknowledged, and recorded a formal instrument, by which they declared that they “ do hereby and now surrender…