ON PETITION FOR REHEARING
Laurence Morley and Morley, Thomas, Orona & Kingsley, Lebanon, and Charles Boardman, Bend, for the petition. David M. Spiegel and Spiegel and Spiegel, Portland, contra. HOLMAN, J.This was a dispute over the ownership of a house and lot. The trial court awarded title to plantiffs. This court awarded title to defendants. Plaintiffs filed a petition for rehearing, not upon the merits, but for the purpose of having the matter referred back to the trial court for the taking of testimony so that plaintiffs can be given credit for (1) improvements, (2) taxes, and (3) payments made on a mortgage to which the litigated interests of both parties were subject. These payments are claimed to have occurred between the time plaintiffs agreed to purchase the property from a third person (May of 1963) and the present time.
The defendants’ position is that any payments made by plaintiffs were either before plaintiffs had secured any title check or after plaintiffs had notice *354of a possible defective title and therefore were made at plaintiffs’ risk.
Credit should be allowed plaintiffs for any payments of taxes or principal and interest upon the first mortgage. These payments had to be made to protect the litigated interests of both parties. Defendants would have had to pay them had plaintiffs not done so. If plaintiffs have been delinquent in any mortgage payments and additional interest has accrued because of this, plaintiffs should not be given credit for such additional interest paid by them.
Credit should be allowed for any permanent improvements made upon the premises by plaintiffs which were made prior to the time they learned there was a possible title defect. Improvements made after they learned of a title defect were made at their own risk. No allowance should be made for cleaning the premise's.
Defendants acquired the outstanding interest of the trustee in bankruptcy September- 23, 1963, and this' was the basis for this .court’s decision that title rests with defendants. Plaintiffs have had the use of the- property since that- time. The reasonable rental value of the property from September 23, 1963, should be offset against any credit to which plaintiffs are entitled. If-the reasonable rental value is greater than the credit, judgment in favor of defendants should be entered for the surplus. If plaintiffs are entitled to a net credit, it should be made a lien upon -the-property.
This court’s decision on the merits is modified to the extent that the matter is ref erred to the trial court for the purpose of adjusting the equities of the.parties in accordance with the foregoing.