On Application for Rehearing.
Provosty, J.In the original opinion we said:
"There is in the record no proof of the allegation that the banks, plaintiffs in rule, are holders of bonds, as alleged, or are creditors at *314all; hence the case on this appeal must be considered as if the sheriff were sole plaintiff.”
On application for rehearing, counsel for the Metropolitan and Germania Savings Banks call our attention to .'the fact that there’ is in the transcript a supplemental transcript, and that by this supplemental transcript it appears that Mr. Gowland was attorney for plaintiff in a rule taken on the Banks in which rule it is alleged that the Banks are owners of the bonds in question; and counsel contend that this judicial allegation made by Gowland, as attorney, was binding on him individually to the extent of dispensing the Banks from making proof of their ownership of the bonds.
We entirely agree with that view, and frankly confess that this supplemental transcript, consisting of a few sheets loose in the transcript, escaped our attention.
But our decision was not based mainly on the fact that the banks had failed to make this proof of their ownership; we never doubted that the Banks were owners of the bonds, and that if the proof had not been made, the reason was that the fact was one as to which there, could be no serious dispute; hence, if the decision of the case had turned on this question of ownership, we should, in all probability, have considered whether the absence of this easily made proof was not mere accident, and whe/Sher, iln justice, ■this case should not be remanded’ for further proof; our decision was 'based on another ground, on which the co-litigant of the Banks had equal standing with them to litigate.
As to this other ground, we adhere to the views expressed in the original opinion. The pleadings of the plaintiffs allege ’that there was a sale, and that the defendant failed to pay the price of this sale. Not a word do the pleadings contain in denial of the sale and of its perfect validity. The sole and only question involved under the pleadings is as to whether, where a sale has been made for cash, the purchaser may retain part of the price to satisfy mortgages. We thought the Code of Practice answered that question and after reconsideration of the matter we feel constrained to adopt again the same conclusion.
Behearing refused.