The following opinion on rehearing was filed February 21, 1907. Judgment of reversal and dismissal adhered to:
DUFETE, C.The former opinion by Mr. Commissioner Jackson is reported, ante, p. 147. On motion for rehearing, filed by the appellee, we recommended a reargument of the case, fearing that an injustice might have been done.. On the reargument, it is strongly insisted that our former opinion overlooked the nature of the consideration for the promise on the part of Kosch, which is the basis of the action. It is said: “It is undisputed that plaintiff was in possession under Klosterman asserting an equity in the property in question by virtue of an option to pur-*151díase from the latter. That claim was recognized by Klosterman, who, in a suit by a creditor of the plaintiff, testified that he was under contract to reconvey to plaintiff upon payment of what he had in the land. Shortly thereafter Klosterman contracted to sell and convey to the defendant, Kosch, who undertook to purchase for the use and benefit of the plaintiff, his brother-in-law. Klos-terman was, however, unwilling to convey, and Kosch unwilling to purchase, without the relinquishment of tin* plaintiff’s claim. The parties accordingly met at the office of Hastings & Hall, where plaintiff and wife, after mudi urging and hesitation, quitclaimed their interest to Klos-terman upon the express promise of the defendant, Kosch, to convey to plaintiff Avithin the period of five or ten years upon the payment of $8,000, the price of the conveyance to him.” If this claim is supported by the evidence, if Steger actually had a contract with Klosterman for the purchase of this land which a court of equity Avould recognize and enforce, and he surrendered his right therein and quitclaimed his interest to Kosch, the consideration being Kosch’s agreement to reconvey upon the payment of $8,000, then we were in ersor in our former opinion, and the decree of the district court should be affirmed.
This necessitates an examination to some extent of a voluminous record, and the writer has gone through the bill of exceptions with great care in order to ascertain what the facts are relating to the evidence attending the conveyance made by quitclaim deed from Steger and Avife to Kosch. Originally, Steger entered into possession of this land by purchase from Klosterman. He defaulted in payments to be made, and thereupon Klosterman took a reconveyance from him. While the evidence is not entirely clear upon the point, it appears that after this reconveyance Steger made some claim that Klosterman had obtained it by fraud, by misrepresenting the paper which Steger and his wife signed and acknowledged, and that thereupon Klosterman agreed to reconvey at any *152time when payment of the full amount of the original purchase money agreed upon between them was made, with interest. The testimony bearing most closely upon this point grew out of the fact that a judgment creditor of Steger commenced an action to set aside the deed made by Steger to Klosterman, alleging that it was fraudulent and for the purpose of defeating his claim. One of the witnesses, on the trial of the case at bar, testified to the effect that Klosterman, on the trial of the creditor’s suit, testified that he was under contract to reconvey the premises to Steger.. On the other hand, witnesses testified that Steger, on that trial, testified that his reconveyance of the land to Klosterman was made in good faith because he was unable to pay for the land, and that Klosterman had refunded to him some of the money which he had paid on the purchase in full settlement of all equity which he had in the land; that the conveyance was an absolute one, and that he remained on the premises as tenant of Kloster-man. There is evidence tending to show that Klosterman surrendered to Steger all evidence of indebtedness given by Steger for the purchase price. What evidence might have been produced on this question, had Steger brought an action against Klosterman alleging that his reconveyance was obtained by fraud and that Klosterman had agreed to reconvey, we cannot say; but certainly, from the evidence relating to the transaction between these parties contained in the record of this trial, no court would be justified in finding that any such contract existed between the parties as would justify a decree for a specific performance.
In the creditors’ suit the court, instead of declaring the conveyance void as to the plaintiff’s judgment and the judgment a first lien upon the land, entered a decree setting aside the conveyance from Steger to Klosterman, and ordering a sale of the premises if the amount of the judgment creditor’s claim was not paid within a time limited by the decree.. After this decree was entered Kosch commenced negotiating with Klosterman for the purchase *153of the land, and the agreement of purchase was finally concluded. Counsel for Kosch, with commendable caution, in view of the character of the decree entered in the creditor’s suit, advised Kosch that to make his title entirely clear it would be advisable to take a quitclaim deed from Steger and wife, and, as we gather from the evidence, it was in view of the terms of this decree, and not because the parties supposed that Steger had any actual interest in the land, that the quitclaim deed from Steger to Kosch was executed, and for which Kosch paid $8,000 which appears to have been the actual value of the land.
An examination of the plaintiff’s petition in this case discloses that no claim was made that Steger was in possession of the land under any contract of sale between himself and Klosterman, and that the quitclaim deed was made to convey any interest vested in him by such a contract. No claim of that kind was made in the original brief filed by the appellee, and upon the oral argument, when the case was first submitted, Mr. Commissioner Jackson interrogated counsel for appellee as to whether, at the time of making this quitclaim deed, Steger was claiming any interest in the land derived from Klosterman, or any other party, and such a claim was distinctly disavowed. We cannot avoid the conclusion, from an examination of the petition, which is entirely silent as to any claim of this character, as is also the original brief filed on behalf of appellee, that the claim is now made, based on evidence that, incidentally, Crept into the record on the trial of the case, but which was not directed to any issue of that character raised by the pleadings. The action was not founded on any such theory. The written opinion of the trial court does not touch upon the question. It was not advanced upon the trial, either in the district court or on the first submission of the case in this court, and a careful examination of the whole record convinces us that the plaintiff’s claim to specific performance was based solely upon the alleged naked oral promise of Kosch to convey this land to the plaintiff upon the payment of *154$25 an acre. That such oral promise cannot be enforced, even if established by uncontroverted proof, is sufficiently shown in the original opinion.
We recommend that the opinion first filed in this case be adhered to.
Albert and Jackson, CC., concur.By the Court: For the reasons stated in the foregoing opinion, the opinion first filed in this case is adhered to.
Reversed.