*871 Upon a Petition to Rehear.
December 3, 1908.
By the court :There are two points made in the petition for rehearing, which require an answer:
Tirst: That the court did not consider all of the evidence in the record before it, but based its opinion upon the agreed facts in the ejectment suit, which appear as an exhibit in this record.
This is an error. All the evidence was considered. It is true the opinion refers especially to the agreed facts, because the evidence is there stated in a more convenient and accessible form, and that statement of facts in truth contains in great part the evidence upon which the controversy must turn. The whole record, however, was considered by the court.
The second point is, that the opinion sets out the four grounds upon which the appellant claims that the decree ought to be reversed, but fails to pass upon the fourth ground, which is, that “the contract from Horn to Litchfield and the deed from Horn to Greenway and Warner are void as to innocent purchasers under Meade (in which class the complainant and its vendors came) because (a) they were not recorded until after Horn conveyed to Meade, and (b) the description is not such as to give notice to third persons.”
It is true that the opinion does not in terms traverse this position, but its whole scope and effect from its statement of facts to its conclusion controvert and reject the appellant’s claim upon this point.
The appellant could only succeed by showing that there had been such a part performance of the contract on the part of those under whom it claims as to entitle it to come into a court of equity and demand its specific execution.
*872The court thought otherwise, for reasons set forth in the opinion, which are still deemed sufficient, and the petition to rehear is therefore denied.
Affirmed.
Rehearing Denied.