DEEMER, J.
[1] The land contract upon which the assessment was based was entered into between Rampton, party of the first part, and Milne & Milne, party of the second part, on October 29, 1907. It is an ordinary contract for the sale of certain lands in Benton county, Iowa, for the agreed consideration of $34,560; the agreement of the first parties being to sell to the parties of the second part on performance of the agreements of said second parties by good and sufficient warranty deed the premises described. The agreement of the second parties was as follows: “And the said party of the second part in consideration of the premises, hereby agree to and with the party of the first part to purchase all his right, title and interest in and to the real estate above described for the sum of thirty-four thousand five hundred sixty dollars, and to pay said sum therefor to the party of the first part, his heirs, or assigns, as follows: Nine hundred 00-100 dollars on the execution of this agreement, and the party of the first part hereby acknowledges receipt of the same. Thirty-three thousand six hundred sixty dollars in two payments, to wit: First payment, 1st day of March, 1908, $28,660.00 cash, and by assuming a mortgage of $5,000.00 now against the premises with interest thereon from March 1, 1908, all subject to a lease between first party and Powell Bros., expiring March 1, 1909, which is to assign to second parties on March 1, 1908, with rent notes for the year 1908. Second party will insure the buildings on the premises and if buildings should be damaged or destroyed by fire prior to March 1, 1908, second party shall be entitled to insurance collected and shall accept same in full of damages done to premises. With interest from this date at the rate of _______ per cent. per annum on all sums as shall remain unpaid, until all is paid, payable at Dysart Savings Bank, Dysart, Iowa.”
And the agreement further provides: “And it is expressly agreed by and between the parties hereto that the time and times of payment of said sums of money, interest, and taxes as aforesaid is the essence and important part of the contract, and that if any default is made in any of the payments or agreements above mentioned to be performed by the party of the second part in consideration of the damage, injury and expense thereby resulting or that may be incurred by or to the party of the first part thereby, this agreement shall be void and of no effect, and the party of the second part shall have no claim in law nor equity against the party of the first part, nor to the above-mentioned real estate, nor any part thereof; and any claim, or interest, or right, the party of the second part may have hereunder up to that time by reason hereof or if any payments and improvements made hereunder, shall, on all such default, cease and determine, and become forfeited, without any declaration of forfeiture, re-entry, or any act of the party of the first part. And if the party of the second part, or any other person or persons, shall be in possession of said real estate, or any part thereof, he or they will peaceably remove therefrom, or in default thereof, he or they may be treated as tenants holding over unlawfully after the expiration of a lease, and may be ousted and removed as such. But if such sums of money, interest, and taxes are paid as aforesaid, promptly at the times aforesaid, the party of the first part will, on receiving said money and interest, execute and deliver, at his own cost and expense, a warranty deed of said premises as above agreed. Possession reserved until March 1, 1909.”
On the face of it, this contract was taxable as moneys and credits under a long line of authorities. See Talley v. Brown, 146 Iowa, 360, and cases cited. But, to avoid its listing for taxation, Rampton and one of the Milnes took the stand and gave testimony which it is claimed shows that the contract was not taxable because it was a mere option. That we may have the testimony before us, we here quote:
Rampton testified, in substance: “Made a contract with Mr. Milne to sell the farm the 1st of March. $900 was paid. Q. In case of nonpayment of the purchase price the 1st of March, what, if anything, was to happen? A. I was to still hold the farm. Q. This money that was to be paid, what was to be done with that? A. It was to be forfeited. * * * At the time of signing the contract to sell the farm to G. H. Milne and J. S. Milne, $900 was paid. The balance was paid according to the terms of the contract shortly after March 1, 1908, and deed was executed to these parties in March, 1908. * * * I paid the taxes on the farm for 1906 and 1907. Mr. Milne paid the taxes for 1908 which became due January 1, 1909. He took possession of the farm in March, 1908, after the deal was closed up. * * * The place had been insured, and just run out, and I told him it would not pay me to go get insured. I was responsible for the building up to the 1st of March, because I owned the farm up to the 1st of March. I supposed if the buildings burned he would not want to take the farm without me losing the buildings. I supposed he expected to take it. * * * Q. Do you wish the court to understand that Milne and his brother and yourself entered into a contract in good faith, which provided in substance that you were to receive from Milne the sum of $900 that you were to keep, that you were to give them any and all right that you might have in the proceeds of the insurance policy on the premises if the improvements would burn prior to the 1st day of March, 1908, and after the signing of the contract, and that you at the same time would have no right under the contract to compel Mr. Milne or his brother to carry out the provisions of them if they didn't want to? A. Provisions of taking the place? Q. Yes. A. No, I could not compel them to take the place. Q. That is what you wish the court to understand? A. Yes, sir. Q. You were to keep the $900 in that event and not give them any part of it? A. That, according to contract. Q. They were willing to give you $900 simply for the right to buy on March 1, 1908? A. Yes, sir. Q. Without any rebate if they decided not to buy? A. Yes, sir. I came right home and never saw the Milnes until I went back the 1st of March. * * * Received the purchase price on the farm on the 1st of March or thereabout, A. D. 1908.”
Milne gave this testimony: “My brother and I bought Mr. Rampton's farm October 29, 1907, made the first arrangements for the purchase at Dysart. Found Mr. Rampton at his sister's at Dysart, talked the matter over there, and went uptown and drew up the contract. Henry Mohler, cashier of the Savings Bank, drew the contract. * * * Q. What was said or what was your understanding, in regard to this $900 that was paid, in case you failed to make further payments the 1st of March? A. The way I took it, we was to lose it if we didn't meet the terms. Q. You was to lose it? A. That is the way I had it figured out. Q. And if you made the payment according to the terms, that was to apply on the purchase price of the farm? A. Yes, sir. We got possession of the farm March 3, 1908, when we got the deed. We paid the money and got the deed March 3, 1908. Rampton paid the taxes due the 1st of January, A. D. 1908. The place was rented for a year and we got possession subject to the one year lease. * * * We talked over the terms first at the house, and then with Henry Mohler when he drew the contract. $900 was paid cash; the balance, the following March. Did not have the money on hand to pay for the farm. We borrowed a good part of it. We made arrangements to borrow the money to pay for the farm along in February. Did not make any arrangement in October, November, or December. Did not ask anybody to loan us the money at that time. Q. When you signed this contract, you agreed in it, didn't you, to buy the farm? A. In one way we did; if we could not meet it, we had a right to forfeit that. Q. I am asking if in the contract you did not agree to buy the farm, and didn't Mr. Rampton agree to sell the farm to you? A. Yes, he did; but at the same time we had a right to forfeit. Q. I am asking if you did not agree to buy it by signing the contract. When you signed that contract, and your brother signed it, when you paid the $900, it was your intention to carry it out, wasn't it? A. Yes, it was our intention. Q. You had no other intention? A. That was our intention. But at the same time, if we did not do it, we had a chance to forfeit the $900 and let it go. Q. What was said about forfeiting the $900 if you did not? A. If we didn't take the place, that was the last of it. Q. Who said that? A. I think the contract did. Q. Who else said that? Did Rampton tell you before the contract was written that was to be the understanding? A. It was the understanding between the three of us when he drew it up. Q. How did you reach that understanding? What was said about it? That is what I want to know. A. Because he wanted some kind of a bond he would get something out of it if we didn't take it. Q. You had paid $900, and he was to keep it if you didn't carry out the contract? A. That is the way I understand it. Q. But you intended at the same time always to carry out the contract? A. Yes, intended to if we could. Q. You know that if there had...
