ON REHEARING. By a petition denominated a petition for rehearing appellee P. H. Supply Company has called to our attention conclusion of law No. 3, which was stated as follows:
"That the defendant and cross-complainant, The P. H. Supply Company, has a first and prior lien against the real estate described in plaintiff's complaint by virtue of its judgment in the sum of Fifteen Hundred Eighty-seven and 05/100 Dollars and costs and interest at rate of 6 per cent per annum from May 19, 1931."
and points out that this conclusion is inconsistent with the original opinion herein, and the mandate of this court should have directed a restatement of this conclusion. We agree with the appellee's suggestion, and the trial court is hereby directed to restate the third conclusion of law in conformity with this opinion.
We do not think a new trial is necessary.
The P. H. Supply Company, by its cross-complaint, asked the trial court to hold the original judgment of foreclosure of appellant's mortgage and the sale had thereunder valid; and 5. to hold that the subsequent action of the Allen Superior Court in setting aside the original judgment of foreclosure and the sale had thereunder to be void and of no force or effect. The trial court found for appellee upon its cross-complaint, *Page 107 and held that the subsequent action of the Allen Superior Court was of no force or effect and that appellant's certificate of title, issued by the sheriff of Allen County, was a valid certificate. Having induced the court to so hold, appellee is in no position now to urge that appellant's deed issued upon surrender of the certificate adjudged to be valid, does not vest a good and sufficient title to the real estate described therein in appellant. The P. H. Supply Company has no interest in the original proceedings. They were not made parties to the same and hence its rights could in no way be affected. The only purpose appellee could have had in filing its cross-complaint was to establish the priority of its judgment over the mortgage lien of appellant. Since we have determined this question against appellees the status of appellant's title under the sheriff's deed is of no concern to it. Appellee P. H. Supply Company is entitled to have execution issued upon its judgment and to have the real estate sold subject to appellant's mortgage and if it sells for more than enough to pay appellant what is due her under her mortgage and the costs, the residue is to be applied upon its judgment. This right appellee has had all the time, and the proceeding had in this cause has not added to nor taken away this right.
Petition for a rehearing denied. *Page 108