The following opinion on rehearing was filed May 3, 1906. Judgment modified:
Letton, J.The facts in this case are set forth in the former opinion, ante, p. 746. Upon rehearing it was strenuously urged by the appellant Colton that in our former consideration of this case we had not given sufficient weight to the argument that he who seeks equity must do equity, and that the plaintiffs who are seeking the removal of the cloud upon their title created by the mortgages should be required to pay such portion of the mortgage debt as was used to defray the mortgage lien and taxes upon the homestead at the time of the death of Gayman, as a condition precedent to the relief prayed. We think it clear that, under the holdings of this court upon the right to subrogation, the former opinion was correct upon that question, and that if the appellant had brought an action to foreclose his mortgage claiming by virtue of being subrogated to the mortgage made by Gayman before his death, he could not have succeeded.
A part of the money of appellant which was loaned upon the void mortgage was used to extinguish a mortgage debt which was created in part to release the homestead from the lien of a mortgage debt of $230 incurred in Gayman’s lifetime. To the extent that this mortgage has been paid off the plaintiffs have been benefited, and it is no more than just that, before they ask a court of equity to relieve them from the cloud created by the void mortgage, they should refund to the appellant as much of his money as relieved *753them from this burden. 2 Pomeroy, Equitable Remedies, sec. 688. The case is similar to one where an action is brought to remove the cloud created by a usurious mortgage. The plaintiff in such case would be required to pay the debt, with legal interest, as a condition of relief, though, if an acLion to foreclose had been begun by the holder of the mortgage, and the defense of usury maintained, he would lose either the entire debt or all of the interest, depending upon the statutory penalty imposed by the particular jurisdiction in which the debt was incurred. It will be noted that the plaintiffs in their petition pray: “That the court shall fix, ascertain and determine the amount, if any, for which the mortgages held by Colton are liens on said land, and this amount the plaintiffs are ready and willing to pay.” As to the money Avhich was used to pay taxes upon the homestead, it is impossible from the evidence to tell how much was used for that purpose, or how much was applied upon the taxes upon the land in section 12, and further, since it was the duty of the widow as tenant for life to pay the taxes, the plaintiffs were not directly benefited by their payment. In other points we agifee with the conclusions of the former opinion.
In the former opinion no mention was made of the complaint of plaintiff as to the judgment in favor of Aultman, Miller & Co. The contention is that this was not supported by the evidence. The record fails to contain the transcript which it states is attached, but, since the judgment is alleged in the pleadings and no denial made, the fact must be taken as true, and the judgment of the district court therefore is not without support.
The former judgment of this court is adhered to, except so far as modified by the foregoing opinion, and the cause is reversed, except as to the judgment in favor of Aultman, Miller & Co., and is remanded to the district court, with instructions to ascertain the amount that would be due upon the original mortgages given by the deceased, Simon (layman, upon the east half of the southeast quarter of section four, township eleven, range twenty-four, if still un*754paid, with interest, and to require the plaintiffs to pay the same to the appellant Colton, as a condition to obtaining the relief prayed in their petition as regards said eighty acre tract.
Judgment accordingly.