Thurber

January 1, 1883, plaintiff made a contract in writing with Otto Heves, under which Heves entered into the immediate possession of a tract of about forty acres of land belonging to plaintiff, the whole of which available for the purpose Heves was to clear up and cultivate to such fruit trees, grape vines and small fruit plants as should be furnished for the purpose by plaintiff—a certain acreage to be cleared and set out each year during the period of four years; and under which contract Heves was to erect certain fences and open up a certain private way or road; in consideration of which services plaintiff was to convey to Heves on January 1, 1888, the title to the north half of said premises.

On Harch 10, 1884, Heves borrowed of plaintiff one hundred and fifty dollars, for which he gave his promissory note payable two years from date, with interest at one per cent per month, payable quarterly, and to secure payment of which he gave plaintiff a writing which referred to the first mentioned contract, and provided that said contract should be held as'security for payment of the note, and making the right to the conveyance therein provided for, “dependent upon the payment thereof at…

On the doctrine of equitable conversion, and the theory that defendants are equitable owners of the fee in the land subject only to a lien for the money due plaintiff, I think it was error not to decree a foreclosure of the lien. The pleadings would have warranted such a decree and equity demanded it. As it is, plaintiff is turned over to another action for the relief he should have bad in this action with costs.

For this reason I think the case should have been ordered to a rehearing.