ON REHEARING.
Day, J.Within the time by rule prescribed the plaintiff filed a petition for rehearing, to which the defendant, as directed by1 the court, replied.
It is claimed by plaintiff that the foregoing opinion is in conflict with an opinion announced in this case at a former term of the court, and reported in 41 Iowa, page 697. Such is not the case. By reference to the former opinion, it will be seen that permission was given to amend the abstract so as to show that it contained all the evidence. Such amendment was made. We have not tried the case de novo, but have found that the evidence is not sufficient to sustain the finding of the court below. The opinion does not authorize final decree in this court, nor was it the intention to deprive plaintiff of a re-trial, if he desired to have such trial.
All we intended by the former opinion was that upon the evidence as now submitted the petition of plaintiff should be dismissed, and a decree' entered quieting defendant’s title.
If plaintiff can change the aspect of the case by the production of further testimony upon a re-trial, he may do so. The petition for rehearing is
Overruled.