On Petition eor a Rehearing.
Elliott, J.— Appellant claims, in his petition for a rehearing, that we did not give due weight to the allegation of his cross complaint, that he had paid part of .the purchase-money for the real estate sought to be recovered. Appellant seems to have forgotten that, when this alleged payment was made, the title of the purchaser at the sheriff’s sale had become an absolute and perfect one, and he seems also to have lost sight of the familiar rule, that payment of all the purchase-money will not take a case out of the statute of frauds. Payment might have given a right of action to recover back the money against the person to whom the money was paid, but certainly not against his grantee.
It is insisted that the agreement made during the pendency of the foreclosure suits gave the appellee’s grantors only an equitable title, and that, as they have founded their action on a legal title, they must fail. The agreement named did not, in any wise, affect the lien of the mortgages, nor the rights of the parties thereunder, and a sale upon the decree conveyed a perfect legal title.
Petition overruled.