ON PETITION EOR REHEARING.
Stiles, J. —A strong appeal has been made to us in a petition for rehearing filed by respondents Spinning and Frost that we foreclose their lien for purchase money, or decree a rescission of the contract after the appellants have been allowed a reasonable time to pay the balance of purchase money, and upon their failure to so pay.
The superior court might, perhaps, have done this upon additional evidence which it might have called upon the *299parties to produce. But, as was stated in the opinion heretofore filed, this court cannot do it in the condition of the record before it. The case was brought and tried upon two theories — first, that a contract for the sale of land must be in form a deed; second, that no delivery of the deed had been made. The evidence showed that a modification of the contract had been agreed to, so that the second $1,000 was not to be paid, or the mortgage given until the title should be made clear. The contract also provided that the third $1,000 should be due in ninety days from August 1, 1889, but no time was fixed for the maturity of the note to be given for the balance of $3,000, to be secured by mortgage. The record is barren of any evidence which would enable us to adjust these matters, and particularly in view of the fact that while it appears that Mrs. Drake did take possession of the land, it also appears that respondent Frost, within a few days thereafter, retook the possession, and retained it for a time which is entirely indefinite. For these reasons the petition is denied.
Anders, O. J., and Hoyt and Scott, JJ., concur.
Dunbar, J., not sitting.