On Motion for Rehearing It is asserted on motion for rehearing that the theory of this court that appellants were only remaindermen and not entitled to possession, fails to take into account that appellants sued as owners in fee simple, entitled to possession, and not as remaindermen. The statements of the *Page 501 court referred to by appellees were in answer to their claim that the cause of action was barred by statutes of limitation which began to run in 1936. It may be that something did occur later that accelerated the remainder into a fee-simple title; but, if so, it does not appear in the recprd.
There are two answers to this contention; first, it appears from appellees' answer that they do claim the entire title and thereby brought it to the attention of the appellants; and secpnd, if necessary we will treat the complaint as amended by the facts in evidence. Mesich v. Board of County Com'rs, 46 N.M. 412, 129 P.2d 974, 977. In that case we said: "The appellee asserts that as appellants had plead that they had a fee simple title to the property, they could not claim to be the owners of a less estate. But the question of ownership was litigated, and this court will treat the pleading as having been amended to conform to the proof. Lopez v. Lucero, 39 N.M. 432,48 P.2d 1031."
So far as the evidence shows, the appellants are remaindermen, and that was our conclusion. However, it would seem that in the trial of the case the pleadings might be amended to show when, if at any time, the appellees had repudiated the title and brought it to the attention of the appellants in the manner the law requires.
The secpnd contention is as follows: "Certain statements in the decision should be modified or re-phrased in order not to be possible of miscpnstruction or to be unduly prejudicial to appellees in a trial on the merits."
It is said under this second point, that the following statement in the opinion should be modified:
"It follows that if the quitclaim deed in question is a forgery, then the appellants are entitled to recpver on thefacts stated." (Emphasis ours.)
We find nothing wrong with this statement. Our intention is clear. On the facts as stated by us in the opinion, the appellants are entitled to judgment if the deed is a forgery. It may be that the facts on the trial of the case will be different; and if so the result might be different.
But to make the matter plain, the case is to be tried anew and the result is to be determined by the evidence. The law, as laid down in the opinion, will be the law of the case. We see no reason to change any of our phraseology.
We did not state, as appellees assert, that the life tenant was living. We stated, "So far as the recprd shows the life tenant under the will is living." Nor do we find, as asserted by appellees, that we have "drawn an entirely different conclusion from the factual matters than that *Page 502 made by the trial court." The only difference between this court's conclusion and that of the trial court is on questions of law.
We adhere to our opinion and the order therein made. The trial court, however, may allow such amendments of pleadings as the parties may desire. The motion for rehearing is denied.
BRICE, C.J., LUJAN, SADLER, and McGHEE, JJ., concur.