Decided August 1, 1911.
Respondent’s Petition for Rehearing.
Opinion
Per Curiam.The defendant’s petition for rehearing presents no new question, argument, or precedent to lead the court to a conclusion different in the main from the decision at which we arrived on the rehearing of this case.
It is only necessary to reiterate in substance that the effect of the dealings between the parties relating to the Miles deed deposited in escrow and the writing, Exhibit C, accompanying the same, was to substitute one conditional agreement for another concerning the sale of the land. The condition makes it analogous to security for the balance of the purchase price remaining unpaid, and requires foreclosure to divest the purchaser of his equity arising from his having paid part of the price, entered into possession and made valuable permanent improvements on the land. Of course the parties might settle their differences by the vendee making an absolute deed to the vendor and surrendering possession; but when the deed is attended with a conditional defeasance, as this one was, it falls short of a final conclusion of the whole matter. Moreover, the broad principles of equity are not fettered by fractions of an hour and a court of conscience will go far to prevent an overreaching forfeiture. The defendant, however, suggests that he has paid some taxes since the institution of this suit that should be taken into the account and the plaintiff states that the defendant has encumbered the land with a mortgage for $2,000 which ought to be abated from the balance of the purchase price necessary to be paid on the strict foreclosure decreed by this court.
Without comment upon this phase of the already complicated situation the decree here will be entered as already *344directed on rehearing, but with leave to either party to apply to the circuit court for permission to file supplemental pleadings and to take further proceedings not inconsistent with the opinion rendered on rehearing.
Further Order: Reversed.