ON PETITION FOR REHEARING
OAKS, Justice:In a petition for rehearing, Lockhart urges that the rules discussed in the Court’s opinion do not apply to the facts of this case since Lockhart’s $14,089.39 advance was paid to the sellers under the real estate contract rather than to the lienholder, Zions Bank. Consequently, Lockhart should be entitled to include that advance in its decree of foreclosure under the rule in Young v. Corless, 56 Utah 564, 191 P. 647 (1920), discussed in the opinion.
Lockhart’s argument is not supported in the record. Lockhart’s complaint refers to the sellers under the real estate contract by name and as “sellers.” In contrast, the complaint and Lockhart’s affidavit in support of summary judgment repeatedly refer to Lockhart’s advance as having been made to a “first lien holder,” who is never identified by name. The same reference without name identification appears in the district court’s decree. The only identification of any “lien holder” by name in the record appears in Lockhart’s Memorandum of Points and Authorities in support of its motion for summary judgment, which states that “Zions Bank had a lien which was prior to the interest of Lockhart.” Likewise, Lockhart’s brief in this Court states that subsequent to TSC’s purchase of the property on the real estate contract and before its assignment to Lockhart, “Zions First National Bank obtained a lien on the property through an assignment by T.S.C. of all its interest in the property.” If Lock-hart’s advance went to the sellers instead of to Zions Bank, this fact is contrary to the plain meaning of the words “first lien holder” in Lockhart’s complaint (a seller under a uniform real estate contract is not a “lien holder”), and contrary to Lockhart’s clear identification of Zions Bank as senior lien-holder elsewhere in the record and in its brief.
A losing party cannot use a petition for rehearing “to present to this court a new theory or contention which was neither in the record as it was before this court nor in the arguments made.” Swanson v. Sims, 51 Utah 485, 498, 170 P. 774, 778 (1918). Rehearing is denied.
HALL, C. J., and STEWART, HOWE and DURHAM, JJ., concur.