After a very thorough examination of-the settled case herein, we are compelled to hold that the finding that defendant Parry delivered to Smith, this plaintiff, the note and mortgage herein involved, is without evidence to sustain it.

There is no real controversy in respect to what occurred in the *313office of counsel for plaintiff, Smith, when these instruments were brought there by Mrs. Parry’s agent. It had been verbally agreed that Smith should foreclose the mortgage bearing date February 15, 1892; that Mrs. Parry should pay the costs of the foreclosure; that some person, to be selected by her, should bid in the mortgaged premises for the amount due on the mortgage note; that the sheriff’s certificate should be issued to this person; that the latter should then assign this certificate to Smith; that he should also execute and deliver his note, payable in four years, to Smith’s order, for the amount due, and for which the premises sold; that Mrs. Parry should indorse this note, and should execute and deliver a mortgage upon certain real property, of which she was the owner, to secure its payment; that, if redemption was made from the foreclosure sale, any sum in excess of the amount due on the last-mentioned note, and on account of taxes on the property paid by plaintiff, Smith, should be paid over to Mrs. Parry; and that, if no redemption was made from the sale, Smith was to convey the property covered by the 1892 mortgage, and described in the foreclosure certificate, to Mrs. Parry, or her assigns, and was to take a new mortgage thereon as security for the payment of the new note, which bore date November 9,1895.

It was in compliance with the terms of this verbal agreement that the foreclosure was made, the premises bid in by defendant Gar-wood, and the costs of foreclosure paid by Mrs. Parry; and the terms of the agreement were being observed when Garwood signed the new note, and when Mrs. Parry indorsed it and executed a mortgage to Smith upon her own real property to secure its payment; and there was no departure from the terms of this agreement when Mrs. Parry’s agent demanded and insisted, as a condition of a delivery of the note and mortgage last mentioned, that the verbal agreement in reference to the latter and to the mortgaged estate— nonenforceable under the statute of frauds — be reduced to writing, and be signed and acknowledged by Smith in due form of law. She was properly protecting her interests and securing her rights when she insisted upon the execution and delivery of the written instrument left in the hands of counsel for Smith on the day of the foreclosure sale, December 16, 1895.

*314The evidence is conclusive that, before handing the note and mortgage to counsel, Mrs. Parry’s agent demanded the written contract, already prepared for Smith’s signature, and was informed that counsel had no authority to execute it, but that it should be forwarded to Smith at his residence in a distant state, and his signature obtained; that thereupon, and upon the condition that the written instrument be signed by Smith and returned to Mrs. Parry, the note and mortgage were handed to counsel. That the delivery was conditional upon the proper execution by Smith, and a return of the contract to Mrs. Parry’s agent, was not only conclusively established by the evidence of all of the witnesses as to what was said, but it was also shown in the letter written by Smith’s counsel to his Minneapolis agent, .when transmitting the new note and mortgage, together with the already prepared contract. As Smith refused to sign the paper, there was no actual delivery of the note and mortgage on which this action was brought. The finding that there was is without evidence to support it.

It has been suggested by counsel that because there was no dispute over the terms of the agreement, as the same are found in the writing, defendants cannot rely upon this defense. They had the right to insist upon proper evidence of the contract entered into, and to make a conditional delivery of the note and mortgage, and this they did. Smith’s counsel were not compelled to accept the papers upon this condition; but they did accept, and their client is bound by their act.

Order reversed, and, on remittitur, the court below will amend its conclusion of law by ordering judgment for defendants.