Respondent and interveners have filed a petition for a rehearing, setting out several grounds which have all been considered. It is now urged that since the propery, when first acquired by the Olsens from Stevens, was mortgaged to the Bank of Ephraim to secure money borrowed to pay the purchase price, along with some other indebtedness of Olsen, and since the property had never been free of mortgage since that time, the respondent may now assert its mortgage is a purchase-money mortgage and in equity should be paid.
The facts are that, when the Olsens bought the property in 1919, they mortgaged the same to the respondent bank to secure money borrowed from the bank to pay Stevens the purchase price and also to secure other indebtedness owing by Olsen to the bank in the total sum of $9,500. In 1923, Olsen borrowed from the North Sanpete Bank at Mt. Pleasant a certain sum of money with which he paid all his debts to the Bank of Ephraim, and the bank released and canceled the aforesaid mortgage as paid in full. Olsen then mortgaged the property to the North Sanpete Bank to secure his debt there. From time to time payments were made, new loans also effected, and the mortgages released and replaced by new mortgages for the amount at the time owing by Olsen. In 1930, Olsen borrowed from respondent Bank of Ephraim a sum of money to pay his then existing indebtedness *Page 381 of $6,000 to the North Sanpete Bank and, to secure this loan, mortgaged to the respondent the sheep involved in this action together with other property.
It is now urged that the original purchase price had never been paid in full, and respondent should be permitted to shuttle its claim back and forth between, and through, all these subsequent creditors and mortgagees and claim a subrogation of its present mortgage to the debt represented by its first mortgage paid off and canceled in 1923. But respondent and interveners made no such defense in the action. They asserted no such claim. They raised no such issue. They alleged and relied on the defense that the property really was Olsen's and that legal title only was in the children. They did not claim, allege, or assert that they had a purchase-money mortgage, in law or in equity, or that they were entitled to subrogation, except the right to be subrogated to the claim of Anthon Olsen against the children for moneys expended for their education, care, and maintenance. They made no claim to other subrogation. They relied upon a different and inconsistent defense to that they now seek to employ. They cannot now be heard to urge a defense not set up before the trial court.
It follows that the petition for a rehearing should be, and the same hereby is, denied.
FOLLAND, C.J., and HANSON and MOFFAT, JJ., concur.