Both plaintiff and defendants by their testimony seek to vary the terms of this written agreement of December 18, 1909, by parol, the plaintiff claiming that he was to receive back his $3,000 .from defendants upon demand, with interest, and in his supplemental complaint he asks that he be declared to be the owner of the legal title to said mining property, unless the defendants pay him the said sum of $3,000, with interest, within 60 days from the date of said judgment.

The defendants seek to vary the terms of said written agreement by parol, by their testimony to the effect that plaintiff was not to receive back any money advanced by him under said *79agreement of December 18, 1909, unless he should first have paid all the debts, liens, and claims against the said California-Alaska Mining Company and the said mining property.

It seems clear to me that neither plaintiff nor defendants should at this time be permitted to vary the terms of said written agreement by parol. This can only be permitted in cases where the court is unable to ascertain from the language used in the writing what the real intent or agreement of the parties was. In this case the plaintiff and defendants have both given a construction to this written agreement which clearly shows their intent by the three receipts given by defendants and accepted by plaintiff, and following the well-established rule of the construction of contracts, the court will not seek to give the agreement of the parties another or different construction than what the parties themselves have placed upon it. From these three receipts for the three payments of $1,000 each, made by plaintiff to defendants under said agreement, it clearly appears that as each $1,000 payment was made the plaintiff became the owner pro tanto of an interest in the mortgage. Deducting the $1,000, paid by the mortgagors upon this mortgage, it left about $13,000 of a mortgage indebtedness, and the defendants evidently chose this 13 as the basis of the valuation to be placed upon said mortgage, and upon the payment of each $1,000 by plaintiff the defendants admitted in writing that the plaintiff became thereby the owner of a one-thirteenth interest in the said mortgage, amounting in all to three-thirteenths interest.

I am therefore of the opinion that it is eminently fair and equitable, in construing this agreement and the effect given it by the parties themselves, that the plaintiff be decreed to be the owner of three-thirteenths interest in the said mortgage, and as a resultant trust, an undivided three-thirteenths interest in and to the mortgaged property purchased or bought by the defendants at said foreclosure sale held on June 16, 1913, and that the defendants Skeen and Dechner hold the same in trust for plaintiff, and they be required within a reasonable time to convey said undivided interest to. plaintiff by good and sufficient deed of conveyance, or in default thereof some person designated by this court execute such deed of conveyance. As to the interest on said $3,000, no interest will be allowed, as the mortgage itself drew interest, and the plaintiff is entitled *80to his proportionate share in whatever interest accrued on the mortgage.

As to the assessment work it is altogether probable that neither plaintiff nor defendants did so much assessment work as they claim to have done, still no question has been raised by any other party as to the requisite amount not having been done to hold the ground.

In view of the fact that the plaintiff was a large stockholder in the company holding the legal title to this property, it may reasonably be assumed that not only in advancing this $3,000 was he seeking to1 protect his own interest, but álso in doing whatever assessment work he may have done. No allowance will therefore be made either party for or on account of assessment work.

As to the claim of the defendants that the plaintiff dissipated and sold machinery from off these mining claims of the value of $5,000, there is no satisfactory proof as to. who put this machinery on, what its character was, as to being permanent or temporary, real or personal property, nor who1 took it off, or who got it. It is unfortunately like too many wrecked mining ventures, a case where the remnants of the property seem to be looked upon as common loot, and no satisfactory accounting made for the improvements and property that somebody’s money paid for. The only pity in this case is that the laborers and others who seem to have just claims against this California-Alaska Mining Company could not have come in ahead of this mortgage, if there is any possibility of getting anything out of the property.

Findings and decree may be entered accordingly.