The following opinion on rehearing was filed November 10, 1906.. Former judgment modified and cause remanded with directions:
Duffie, C.Our attention has been called to the fact, not noticed in the briefs filed in this case, that the appellant paid $200 on his contract of purchase which has, been set aside by the court. Plaintiff, on commencing this action, paid into court the sum of $371 which has not been disposed of by the decree. It is quite apparent that Lydia McGargill and Ellen Nealon have had the benefit of the payment made upon this land by the intervener and appellant. Equity requires the repayment of this money upon the cancelation of his contract of purchase, and the money paid into *116court for the benefit of the defendants should be used for that purpose. The defendants and intervener were jointly taxed with the payment of all the costs. Under our statute an intervener who fails in his action can be charged only with the costs made by his intervention. Code, sec. 50?;. The decree of the district court and the judgment of this court heretofore entered will be so modified as to require the payment to the appellant of $200 from the money deposited in court by the plaintiff, and to direct the district court to ascertain the amount of costs made by the intervention of the appellant and to tax him with the payment of such costs, and for this purpose the case will be remanded to the district court.
ALBERT and Jackson, CO., concur.By the Court: For the reasons stated in the foregoing-opinion, the decree of the district court and the judgment of this court heretofore entered are modified and the cause is remanded to the district court, with directions to require the payment to the appellant of $200 from the money deposited in court by the plaintiff, and, further, to ascertain the amount of costs made by the intervention of the appellant and to tax Mm with the payment of such costs..
Judgment accordingly.