OPINION UPON APPLICATION FOR REHEARING.
Day, Oh. J.— A petition for rehearing was presented in this case, supplemented by an oral argument. No complaint is made of the legal propositions advanced in the foregoing opinion, but it is claimed that material facts established by *516the pleadings have been overlooked. It is said in the application for rehearing that the petition alleges that Clark and Boal have been in the continuous possession of said premises, by their tenant, until the sale to Fountain, and that the defendants admit such possession .from and including the year .1868. It is further said in the petition foi^rehearing that the answer alleges that “ Clark and Boal were the owners in fee of • said lands. by absolute conveyance from Paddock and others, the owners thereof, which allegations' were in the trial conceded to be true, and are now formally admitted to be so.” This last statement involves an entire departure from the theory upon which the case was at first submitted to us. Upon the former submission it was conceded by both parties that the deed from Paddock to Clark and Boal, in connection with the bond for a reconveyance, constituted a mere mortgage from Paddock to Clark- and Boal. And without any concession from the parties, it is clear that the deed and bond operated merely as a mortgage. If it should be conceded, then, that Clark and Boal and their grantee, Campbell, wero ■in possession of the land, they were in possession as mortgagees and not as owners.
When the plaintiff succeeded to the legal title, his proper remedy was to bring an action against them to redeem, and to compel them to account for the profits. The plaintiff, having succeeded to the land burdened with the payment of both mortgages, cannot compel the holders of the Clark and Boal mortgage to pay off the Amana or senior mortgage We are fully satisfied with. the disposition made of this case in the foregoing opinion. The petition for rehearing is overruled.