*296Modified and rehearing denied May 25, 1915.
On Petition for Rehearing.
(147 Pac. 1199.)
Opinion by
Mr. Chief Justice Moore.In a petition for a rehearing attention is called to a clause in the original opinion wherein it is stated that, unless the sum of money awarded the plaintiffs is paid them within 60 days from the entry of the mandate in the lower court, the decree appealed from would stand as and for a conveyance to the plaintiffs of an undivided one half of all the real property involved, including all interests therein of the defendants as of April 23,1910, when the deed was executed to the Richardson-Sharkey Company. It is asserted that, prior to the commencement of this suit, many tracts of the land referred to were sold and conveyed to innocent purchasers, who would sustain loss if a lien were impressed upon the real property which they purchased from the corporation last named and from its successor, the Richardson Investment Company. In answer to this contention it is sufficient to state that such, purchasers were not parties to this suit, and the decree rendered herein can have no binding force as to them. When the decree is undertaken to be enforced against such persons, they will undoubtedly be given an opportunity to show that they were innocent purchasers, for a valuable consideration, and without notice of the plaintiffs’ equity in the real property. It is maintained that an error was committed by this court in determining it was Richardson’s duty to allege and prove that he paid a valuable and adequate consideration for an assignment of the remainder of Sharkey’s corporate stock, since the bona fides of the transfer *297was not challenged in the complaint. The complaint was framed on the theory that Richardson was in fact the corporation, though a few other persons held stock which he had purchased in order to enable them to qualify as directors, so as to vote as he commanded in all matters pertaining to the management of the corporation. Sharkey was in equity a trustee, and held one half of the corporate stock for the plaintiffs: Bisbee v. Mackay, 215 Mass. 21 (102 N. E. 327). It appears from the petition for a rehearing that Richardson controls this block of stock, having purchased it and paid therefor a valuable consideration, a fact which was not disclosed at the trial. Such evidence of corporate indebtedness having been obtained directly from the trustee by Richardson, his ownership thereof can be protected only by affirmatively showing he was not chargeable with notice of the fact that the stock equitably belonged to the plaintiffs and that Sharkey was disposing of it in breach of the trust: Cook, Stock and Stockholders (3 ed.), § 325. In preparing the complaint in the case at bar the plaintiffs’ counsel evidently were not aware • of the transfer of the remainder of Sharkey’s stock to Richardson, and the initiatory pleading should be treated as a bill for a discovery, requiring Richardson to set forth in his answer the nature and extent of his title and to substantiate such averment by evidence that he had paid an adequate and valuable consideration for the stock without knowledge or notice of any rights of the plaintiffs thereto. In speaking of that which is put forth by the party proceeded against as a reason in law or fact why the plaintiff should not recover what he seeks, a text-writer, touching particularly upon the subject of a bona fide purchaser, remarks: “Unless the facts appear on the face of the complaint, so as to permit a *298demurrer, there can be no doubt that in the new system, as well as in the old, the defense must be pleaded, iñ order to be available”: 2 Pomeroy, Eq. Jnr. (3 ed.), § 784. It was stipulated by counsel for the respective parties that a clause in the former opinion should be amended, so as to require the plaintiffs, upon receiving the sum of money awarded therein, or in default thereof by taking an undivided one half of the premises, to convey to the defendant Sharkey the interest which they held by deed as security in the Waverleigh Heights lots. As thus modified, the original opinion is adhered to, and the petition for rehearing denied.
Modified and Rehearing Denied.