ON REHEARING.
SULLIVAN, J.Upon a careful consideration of this case on rehearing, we conclude that the demurrer ought to have been overruled. An attempt was made to set up in the complaint an equitable lien, when the contract sued on clearly, shows that the only lien the respondents have is upon the shares of stock deposited with Antisdel, trustee. The validity of the $75,000 trust deed or mortgage was put in issue by the *797pleadings, and tbe record shows that the trial court erred in holding that said security was fraudulent and void. The record shows that Dalliba knew of the contemplated execution, and knew of the execution thereof and of the execution of the $3,000 mortgage on the personal property, and did not object thereto. It also shows that said securities were executed for the purpose of raising funds for the improvement and development of said mining claims; that one Eoundtree, a confidant or friend of Dalliba, endeavored to sell said securities, and failed to do so, and reported to the Thomases that the amount was too large, and must be reduced to $50,000, which was done by indorsement of $25,000 on said $75,000 note and mortgage. Said Eoundtree failed to make a sale thereof after said reduction, and thereafter Ella C. Thomas purchased the same for $37,000, and paid said sum to the officers of said company, and thereby became the owner thereof to the extent of $37,000. There is no conflict in the evidence upon that point. It is also shown that said money was expended upon said mining claims and in the payment of the corporation’s debts. While there is some conflict in the testimony as to the value of the wrak done on the mining claims by the Thomases, we think the evidence of the plaintiffs upon that point is of such character as not to be of much weight. Under the contract set forth in the complaint the net profits arising from the working of the mines are required to be paid on the $60,000 of the purchase price remaining unpaid, and it is alleged in the complaint that large net profits have been realized to the extent of more than $40,-000 in the operation of said mines, which allegation is denied by the answer. The evidence fails to show that any net profits have been made in operating said mines. It follows that the judgment must be reversed on the ground that respondents have no lien upon said mining claims, and the decree of foreclosure must be reversed. We are of the opinion that said trust deed or mortgage is a valid subsisting lien on said mining claims and property to the extent of $37,000, with interest thereon as provided therein.
The cause is remanded for further proceedings in conformity with the views expressed in the original opinion herein as *798modified by the views expressed herein. Costs of this appeal are awarded to appellants.
Quarles, C. J., and Stockslager, J., concur.