On Petition for Rehearing.
(216 Pac. 1020.)
Messrs. Manning & Harvey for the petition.
Mr. 8. 8. Johnson, contra.
McCOURT, J.Counsel for defendant have filed a petition herein, requesting a rehearing, or if such rehearing be denied, that the cause be remanded to the *456Circuit Court, with leave to defendant to file an amended answer in the Circuit Court, followed by such further proceedings in the suit in that court as shall be proper.
We find nothing in the petition or in the additional authorities brought to our attention which entitles defendant to a rehearing, but upon further reflection, we are of the opinion that the cause ought to be remanded and defendant allowed to file an amended answer in the Circuit Court, if she desires to do so.
The record in its present state shows that the plaintiff purchased Kaser’s interest in the land, title to which it now seeks to have quieted as against defendant, with notice of the contract between Kaser and defendant and the obligation of Kaser in that contract to pay bis debt to defendant at the time of the conveyance to plaintiff. The failure of Kaser to make the payment, or any part thereof, and the omission of plaintiff to see that the same was made, together with the commencement of this suit by plaintiff shortly after it received a conveyance from Kaser, in the absence of satisfactory explanation, suggest that the consideration to be paid Kaser is dependent upon the outcome of this suit, or that plaintiff is aiding Kaser to escape his obligation to defendant. The position of plaintiff in either case would be inequitable. Plaintiff is seeking equitable relief, and must do equity before such relief will be awarded to it by a court of equity. The maxim applies that he who seeks equity must do equity: 5 R. C. L. 664.
The directions contained in the opinion herein which were ordered to be given to the Circuit Court upon remand of the cause are modified to conform to the foregoing observations. The decree of the Circuit Court is reversed and the suit remanded to the Cir-*457cu.it Court with, directions to enter an order sustaining plaintiff’s demurrer to defendant’s further and separate answer, with leave to defendant to apply to the Circuit Court for permission to file an amended answer, and for such other and further proceedings as may he proper.
Rehearing Denied and Original Opinion Modified.