On Petition for a Rehearing.
Olds, J. —Counsel for appellants contends that there should be a rehearing granted in this case, for the reason that there was a misapprehension and misstatement of the counsel’s position in the original opinion; and he contends that the complaint affirmatively shows that appellees and appellants de*137rived title to the real estate in question from the same grantor, who first sold and conveyed to the appellees the one-half of the real estate, and afterwards sold and conveyed to appellants the remaining one-half; that appellants have the right to have the appellees’ share of said real estate applied to the payment of the liens upon the same, and that the said appellees’ interest in said real estate was primarily liable for the payment of the liens which were paid off by appellees, and that therefore they cannot recover, and their complaint does not state facts sufficient to constitute a defence to the complaint of appellants to quiet their title.
Counsel is in error, both as to the misapprehension by the court of his position and as to the averments of the complaint in this action. The complaint avers ownership in the appellees of the undivided one-half of the real estate, that valid judgment liens had been recovered against all of said real estate, that the same had been sold thereon, and that certificates of purchase for all of said real estate had been issued, and appellees had purchased the same, and were the holders and owners of said certificates and the equitable owners of ■all of said real estate before the commencement of appellants’ action to quiet title to said real estate. In the complaint they set out a copy of the complaint of appellants in the action to quiet title, and the judgment rendered in said cause, which they ask to have set aside. In their complaint it is alleged that one George W. Price was the owner of said lot, and upon the — day of-, he conveyed one-half to appellants, and after said conveyance, on the— day ■of-, he conveyed the other one-half to appellees, and that the grantees in said deeds respectively agreed that each should pay one-half of a certain mortgage then on said real estate. The allegations show that, in effect, said two conveyances were all one transaction ; but the complaint, in this action, does not aver or admit the truth of the averments •of the complaint in the action brought by appellants; nor •does the finding of facts show that Price owned the real *138estate, and sold and conveyed to appellants and appellees each one-half, and that the sale and conveyance to appelleesantedated the sale and conveyance to appellants.
Filed May 18, 1889.It is further complained by counsel, that we did not set out in full the finding of facts which exonerated counsel from any wrong or unprofessional conduct on his part. This we did not, and do not now, deem necessary. The finding of facts fully exonerated counsel from any wrong or unprofessional conduct; but we do not deem the motives which actuated counsel to be material in determining whether the default and judgment should be set aside, as asked in this, case. The findings show a misunderstanding, and that appellees were misled, by reason of which they did not. appear, and suffered default.
Petition for a rehearing overruled.