Decided November 20, 1911.
On Petition for Rehearing.
[118 Pac. 1013.]
Opinion by
Mr. Chief Justice Eakin.The petition for a rehearing first suggests that it does not appear on what ground the court rests its decision, but it can hardly be misunderstood. The opinion concludes, from the argument preceding, “Therefore,” etc., and assigns four grounds why the suit cannot be maintained.
The principal argument of the petition is based on a misstatement of the effect of language of the opinion, viz., “Specific performance in such a case does not rest on the same principle involved where the vendor owns only an undivided part of the fee,” while the petition cites it as *213“does not rest on the same principle involved where the vendor owns less than the fee,” so that the argument is not in point.
Plaintiff also asks to have the decree modified to give plaintiff a contingent decree for specific performance against defendant for a conveyance of his title on payment of the contract price, if plaintiff elects to accept it, but there are two objections to such a decree: (1) Plaintiff should have elected whether he will accept before he asked for the decree. (2) The issues cannot be made up in this court. Defendant is brought into court on the contention that he must accept a reduced price for the property because he cannot give a clear title, and, as he is contesting that claim, it would be unjust to him to involve him in the-litigation and costs of the cáse on an issue not before the court.
The petition is denied.
Reversed: Suit Dismissed: Rehearing Denied.