The only matters seriously urged by the plaintiff in error in his petition for rehearing, are: First, the two agreements admitted in evidence as exhibits "22" and "23," being contracts executed by the plaintiff in error and the Shaffer Oil Refining Company, corroborate the assertion of plaintiff in his testimony *Page 31 to the effect that he did not receive any consideration for the notes sued on; second, that the court overlooked section 5247, Comp. Stat. 1921, to which the attention of the court was not called in the briefs and oral argument.
Upon the first proposition it is sufficient to say that the court in the instant case construed the contracts as it had a right to do to mean that the ownership by the Shaffer Oil Refining Company of the leases in controversy was not absolute but special, and that the leases were held by it only as collateral security for the indebtedness evidenced by the notes sued on. If this construction is correct, it follows that the Shaffer Oil Refining Company would have a right to waive its security and enforce liability upon the notes in a personal action against plaintiff in error.
Upon the second proposition, that under section 5247, supra, the Shaffer Oil Refining Company is estopped to deny that the legal effect of the contracts introduced in evidence was to vest the absolute ownership of said leases in it without offering to return the leases assigned, it is sufficient to say that section 5247, in our judgment, has no application to the facts as disclosed by the record in the instant case. To make said section 5247 applicable would be to assume the precise matter in dispute, viz., that the ownership by the Shaffer Oil Refining Company of the leases in controversy was absolute and not conditional.
For the reasons stated, the petition for rehearing, in our judgment, should be and is hereby denied.
By the Court: It is so ordered.