ON PETITION FOR REHEARING.
HIXON, P. J.We need not recall in considering this petition for rehearing the rule of universal application in appellate practice that appellate courts ivill determine cases on the same theory on which they were presented to the trial court. In the discharge of our duty under this rule — to ascertain upon what theory this case was tried and determined in the circuit court the impact of our opinion was placed upon the word “taxes” as used in the agreement in which the parties to this controversy stated their liabilities.
But appellant again appears and in a petition for rehearing and insists with much warmth and ability that we should consider this case upon a different the*243ory in order that justice may be done. Lest some wrong be done, we again call attention to the facts in this case.
From the point of view that is now presented in the petition for rehearing, the question to be determined, as stated in the motion is — “In an action for specific performance by the vendee, will the vendor be compelled to pay special assessments and improvements made after the making of the contract between them where the contract is silent in regard to the payment of such special assessments.” The appellant, in support of this theory, has cited a large number of decisions to the effect that after a sale of land to a vendee, if an assessment is made by a municipality for the betterment of the land— like the assessment in the present case for a sewer — the cost falls upon the purchaser.
Recurring to the written agreement on which this suit was founded, its terms provide for a lease of the premises with an option in the respondent to purchase the same. By its terms, until this option is exercised, the rights of . the parties are only those of lessor and lessee. The indenture wras entered into on the 1st day of December, 1904, and provided that Emma C. Johnson should pay a rental of twelve dollars and fifty cents per month from that date, and when her rental payments amounted to three hundred dollars, she should have the option to purchase the same upon giving her promissory note for nine hundred and.fifty dollars, securing it by a deed of trust on the premises. The special taxbill for the construction of a district sewer became a lien on the premises sold thirty days after the 3d day of May, 1905. It will thus be seen that at that time, the relation and rights of the parties to this suit was that of landlord and tenant and continued such for months after this charge was made upon the premises. So that the whole reasoning of the petition for rehearing proceeds upon the false basis that the respondent was in possession of the land as vendee, wh^u the fact is patent on the face of the agreement that she had not and *244could not, under the terms of the contract, exercise her option to purchase the land. If then, the appellant had desired to throw the burden of this special assessment or any special assessment that might be levied upon the lessee — as he did the general taxes — he should have put such agreement in his contract. The law does not place such a burden upon the lessee in the absence of a specific agreement and we cannot do so. The petition for rehearing is denied.
All concur.