On Petition for Rehearing
TAYLOR, Justice.Respondent’s petition for rehearing urges error in our finding that plaintiff (appellant) is entitled to rescission and cancellation of the option and timber deed. Two principal grounds are advanced to support this contention.
First, that the option and deed may not be rescinded and cancelled because certain of the parties to them are not parties to this litigation. With respect to the option, it is contended the optionee, Spafford, is a necessary party. This contention is without merit. The record is conclusive that he acted solely as the agent of the first partnership, and that the option was actually exercised by that partnership. The option thus became functus officio. Moreover, any personal interest in it which the agent may have or claim is in no way affected by the judgment herein. He may have been a proper party, but is not a necessary party. As to the timber deed, it is urged that the first partnership, the grantee therein, is a necessary party. The record i conclusive that the defendant (respondent)' is successor in interest of the first partnership. Defendant does not stand in the position of, a bona fide purchaser for value without notice.
The second ground of error urged is that' the timber was sold by defendant to the Prairie Lumber Company, and a down payment of $50,000 was made by the Prairie Lumber Company thereon prior to the commencement of this action. Mrs. Olga C. Berklund testified that the timber had been sold to the Prairie Lumber Company on a conditional sales contract and that a down payment of $50,000 had been made thereon. William Berklund, Sr., testified that the timber had been sold to the Prairie Lumber Company; he could not remember the date except that it was in the winter of 1956-57. He further testified that under the contract the buyer pays for the timber as it is taken off, and that so far as he knew no timber had been taken off the Morrow lands. Neither the date of the *443contract nor any of its terms are shown by the record.
In support of its contention that innocent third parties would be adversely affected by rescission and cancellation herein, and that such third parties are entitled to their day in court before such remedy can be granted, defendant has presented to this court, attached to its petition for rehearing, affidavits of O. C. Berklund, Curtis J. Berklund, and of its counsel, J. H. Felton.
The affidavit of O. C. Berklund has attached to it a newspaper clipping containing a news item of a sale of timber by defendant to the Prairie Lumber Company, and also a copy of the purported contract of sale. The purported contract is dated December 6, 1956. These affidavits and exhibits contain many evidentiary statements which could have been presented in evidence upon the trial under proper pleadings. Other purported facts set forth in the affidavits and exhibits, attempt to show what has transpired subsequent to the trial and during and pendency of this appeal.
In the affidavit of Olga C. Berklund it is alleged that the Prairie Lumber Company has cut and removed “several millions of feet of timber” from the Morrow lands. Assuming these facts to be properly before this court, it is hardly conceivable that any timber was taken during the twenty-one days in December, intervening between the date of the contract of sale and the date this action was commenced and lis pendens filed, December 27, 1956. Removal of timber by the Prairie Lumber Company subsequent to the date of filing of lis pendens would be done at its peril. I.C. § R. 5-505. As stated in the opinion, defendant in its answer alleged that at the date thereof, March 13, 1957, it was the owner of the timber. Such ownership was not alleged to be limited or qualified by sales contract or otherwise. Nor did defendant seek to amend its pleadings to conform to the proof that a sale had been made.
New issues cannot be framed in this court, nor can new or additional evidence be presented on appeal. 3 Am.Jur., Appeal and Error, § 835; Gibson v. En-right, 135 Kan. 181, 9 P.2d 971; Schmidt v. Equitable Life Assur. Soc., 376 Ill. 183, 33 N.E.2d 485, 136 A.L.R. 1036. In the affidavit of counsel for defendant it is alleged that the trial judge took judicial notice of a part of the record in a prior action between these parties. This allegation is supported by the record before us. However, the record so noticed was not made a part of the record on this appeal, and therefore cannot be considered. Preston A. Blair Co. v. Rose, 56 Idaho 114, 51 P.2d 209; Rea v. Rea, 195 Or. 252, 245 P.2d 884, 35 A.L.R. 2d 612. The motion of plaintiff to strike the affidavits and exhibits attached to defendant’s petition for rehearing is granted.
*444However, the petition for rehearing does present a strong appeal to equity on grounds which are supported by the record. The first of these is the lapse of time-intervening between the date of the timber deed, January 10, 1949, and the commencement of this action, December 27, 1956 — practically eight years. Over seven years elapsed from the date of the deed to the discovery of the fraud, by Mrs. Morrow in the summer of 1956. During this time the plaintiff had the use of fhe purchase price paid for the timber from the date the down payment and installments were paid, beginning January 10, 1949, and ending January 10, 1954. Also, we may take notice of the fact that during this period the value of timber and timber- products greatly increased. State v. ex rel. Graham v. Enking, 59 Idaho 321, 82 P.2d 649; In re Union Pacific R. Co., 64 Idaho 597, 134 P.2d 1073. The fact that a sale of timber was made by defendant to a third party, which the record indicates could have been made before this action was commenced, which sale included the timber on the Morrow lands, and upon which a down payment of $50,000 was made, tends to show that an innocent third party may be adversely affected by a rescission and cancellation of the deed. This is so even though the sale was conditional and the timber was to be paid for as removed, and even though none had been removed at the time of trial. The buyer may have materially changed its position in reliance upon the long continued recognition by plaintiff of her timber deed to defendant. The down payment of $50,000, a part of which would be considered applicable to the purchase of plaintiff’s timber, is some evidence of a reliance by the purchaser upon plaintiff’s long acquiescense in her sale to defendant. This long acquiescence on the part of plaintiff tends to show want of diligence on her part in discovering the fraud. This lapse of time between the making of the deed and the commencing of the action to rescind it, distinguishes this case, in that respect, from Dahl v. Crain, 193 Or. 207, 237 P.2d 939, cited in our original opinion. In that case the time lapse was approximately two years.
Having regard for the foregoing equitable considerations, we have concluded to vacate the mandate originally entered. The option and deed will not be rescinded and cancelled, but the deed will be limited to, and recognized as, a conveyance from plaintiff to defendant of 8,437,000 board feet of pine and 1,563,000 board feet of fir, and no more. When that amount of timber has been removed from plaintiff’s lands by the defendant, its transferee or successor, the conveyance shall be fully satisfied and the obligation of the deed fully discharged. *445The deed provides:
“This timber deed is given for a period of fifteen (15) years, beginning January 10, 1959.
“In case the purchaser fails to remove the timber in the time limits set by this agreement, the seller shall grant the purchaser additional time upon the conditions that the purchaser pay the seller five (5) per cent per annum upon the value of the timber remaining until timber has been removed.”
The district court is directed to provide for the performance by defendant of these and other pertinent provisions of the deed; also, that once logging is commenced upon any subdivision of plaintiff’s property, such logging shall continue, weather permitting, until such subdivision is logged clean of all merchantable timber. The decree shall define merchantable timber and contain such other provisions as the district court may find necessary to protect plaintiff against selection by the defendant, its agent, transferee, or successor, of the best or most desirable timber on her lands or any subdivision thereof, leaving to the plaintiff the less desirable of any of the species covered by the deed.
The district court is directed to take any additional evidence it may deem necessary or desirable, and to enter its decree in conformity herewith.
The judgment denying relief to plaintiff is reversed and the judgment giving effect to the option and deed, as modified herein, is affirmed.
Costs to appellant.
PORTER, C. J., and SMITH and Mc-QUADE, JJ., and GRAF, D. J., concur.