& Investment Company, instituted an action against J. D. Halstead to quiet title to and recover possession of a quarter section of land situated in what is now Golden Valley county, in this state. Said Halstead defended such action, and claimed to have purchased the land under a contract from the Missouri Slope Land & Investment Company, and asserted that he was entitled to occupy said premises and to have the same conveyed to him upon payment of the sum due on the contract. The Missouri Slope Land & Investment Company denied the validity of the contract. Halstead was in possession of the land. A trial of the action resulted in a judgment in favor of the Missouri Slope Land & Investment Company and against Halstead; said judgment being entered February 3, 1909. 27 N. D. 596, 147 N. W. 643. Thereafter said Halstead proceeded to take proper steps to move for a new trial. Such motion was made and granted on January 14, 1911. 27 N. D. 597, 147 N. W. 643. An appeal to this court resulted in an affirmance of the order granting a new trial. 27 N. D. 591, 147 N. W. 643. Ona retrial of the action Halstead prevailed. The Missouri Slope Land & Investment Company appealed to this court, but it subsequently attempted to withdraw the appeal, with the result that this court ordered the appeal to be dismissed, and the judgment of the trial court then became final.
The written instrument which is involved in this controversy was executed during the time when Halstead was taking steps looking toward moving for a new trial, to-wit: on June 6, 1g1o, and is in words and figures as follows:
“State of North Dakota, County of Billings.
“In District Court, Tenth Judicial District.
“Missouri Slope Land & Investment Company, a Corporation, Plaintiff, v. J. D. Halstead, Defendant.
“Undertaking
“Know all men by these presents, that the Missouri Slope Land & Investment Company, a corporation, as principal, and A. L. Martin and Mary J. McGillivray, as sureties, of Dickinson, N. D., are firmly bound unto J. D. Halstead in the sum of five thousand five hundred dollars ($5,500.00), lawftl money of the United States of America, to be paid to the said J. D. Halstead, his executors, administrators, or assigns, for the payment of which, well and truly to be made, we bind ourselves, our
