On Petition for Rehearing.
FrsK, Oh. J.A voluminous petition for a rehearing has been filed by appellant which in the main is merely a rehash of the points raised in his brief. We have duly considered the same and fail to discover any sufficient reason for granting a rehearing.
Our attention is therein directed to a few errors in our statement of facts in the opinion, but as we view it these are not of controlling importance as they in no manner materially affect the result. It is no *199«doubt true, as stated in the petition, that we were in error in saying that “E. Sanford thereafter paid and took up the loan from Hogue, and forwarded the papers to his son,. the appellant, in Aberdeen, for foreclosure. Later, the son procured from Wolfersberger a warranty deed of the premises,” etc. The record appears to disclose that the Hogue estate still held the first mortgage at the time foreclosure proceedings were directed by appellant’s father, and that the deed was obtained from Wolfersberger by appellant prior to the time his father paid and took up the loan. However, the action was tried and the appeal argued upon the theory that, assuming the Wolfersberger deed was intended to run to appellant, it conveyed the title, either to him in his own right or to him in trust for his father, and not to the Hogue estate. In other words, the court was asked to decide merely whether appellant or his father was the owner of the tract. The overwhelming weight of the testimony tends to show that appellant’s contention is not true. The Hogue estate is not a party and makes no claim of title, and when appellant’s father paid and satisfied the first mortgage running to the Hogue estate, it left him the holder not only of the second mortgage, but he was subrogated to the estate’s interest under the first mortgage.
Another error which crept into the opinion in the statement of facts is that wherein it is stated that “the plaintiff, as well as his sister and brother Frardc, all testify that appellant never made claim to this tract of land until after the commencement of this action.” We were in error in including the name of the brother Erank in the above statement, as it appears he did not testify as a witness, and the opinion is modified accordingly.
The petitioner is mistaken in thinking that we overlooked the rule announced in Carter v. Carter, 14 N. D. 66, 103 N. W. 425. We decided the case in the light of the presumption in appellant’s favor which arose from the fact that the deed runs to him, but we think such presumption was clearly overcome by the evidence which satisfied us to a moral certainty of the truth of respondent’s contention.
There may be one or two other minor misstatements of fact in the opinion, but if so they are of no controlling importance, and need not be noticed.
The fact that we did not expressly refer to the last contention in *200appellant’s brief, to tbe effect that a partnership existed between appellant and his father and that in any event it should be held that the deed was taken by appellant from Wolfersberger in trust for such partnership, and consequently that appellant is the owner of one half of the tract as such former partner, and that he inherited one eighth as heir, is because such contention was not urged here with much seriousness, and we deemed it unnecessary to specially refer thereto. Even if such partnership existed, which fact is denied by respondent, it appears that such partnership related merely to the negotiating of loans, and the act of purchasing this Wolfersberger title was not within the scope of the partnership business. Again, appellant’s main contention, that he took this deed in his own right, is, of course, wholly inconsistent with his later contention that it was taken on behalf of the alleged partnership aforesaid.
The petition for a rehearing is denied.