■ The following opinion on motion for rehearing was filed July 8, 1918. Former'judgment of reversal set aside, and judgment of district court affirmed.
Sedgwick, J.,This case upon this appeal was first argued before the court commission, and an opinion written by the court upon the facts reported by the commission, ante, p. 255. The plaintiff upon motion for rehearing com*259plained that there had been no opportunity to present the case to the court on argument, and the court ordered oral argument on the motion for rehearing, and the case was argued and submitted to the court.
It is contended in the brief that some of the statements of facts in the opinion are not supported by the evidence in the record. It is conceded that, at the close of the negotiations, the agent Murphy stated the understanding- of the parties in his letter quoted in the former opinion, in which he said that the plaintiff should send the deed to the hank, with instructions to turn over t]je papers, “upon receipt of $1,650, less $25 commission, the expense of extending abstract up to date and taxes, if any, against the property.” Pursuant to this statement of the matter the plaintiff sent a warranty deed to the bank to be delivered under their agreement, in which she guaranteed against all taxes. When the agent called upon the bank, proposed to make the payment, and demanded the deed, the bank found that there were discrepancies in the correspondence and misunderstandings between the parties. It is conceded by all parties that the taxes were just and were a valid lien upon the land. The natural thing for the bank to do, if disinterested, would be to receive the tenders made by the purchaser of the land upon condition that the deed should not be delivered until, the plaintiff, after being informed of the amount deducted for the taxes, should consent to such a consummation of the transaction. The bank thereupon held the deed, but did not inform the plaintiff fully of the situation. The bank held the deed for at least ten days, but failed to inform the plaintiff of that fact, and, on the other hand, by sending the tax receipt to plaintiff and stating that it was- hoped that the plaintiff would be satisfied, and in other ways, the bank led the plaintiff to understand that the transaction was closed. The taxes in question were mostly for improvements that are presumed to enhance the value ’ of the property *260more than the amount of the taxes. The plaintiff did not know that these improvements had been made, and stated her price upon the supposition that she was selling the property as she understood it to be, and was not aware that out of this purchase money she would be compelled to add largely to the value of the land without an equivalent return to herself. These taxes, although payable at once, were not collectable against the property then, but were payable in instalments running through a period of years. It is quite usual in such cases to sell subject to the lien, and, as these taxes represent the incrgased value of the property, it would not ordinarily be expected that the owner would pay them and still sell for the same price offered before the improvement was made. The majority of the judges conclude that the evidence shows that the bank knew of these circumstances, and causedi the plaintiff to understand that the transaction was closed, and that she could not include the . value of the improvements in the price to the purchaser, and that, in this view of the evidence, this defendant participated in this wrong to the plaintiff, and the judgment of the district court is sustained. . The syllabus of our former opinion in that respect is incorrect.
Our former judgment is set aside, and the judgment of the district court is affirmed.
Judgment accordingly.