(dissenting).
The majority, by supplementary opinion, has determined to deny the respondent’s petition for a rehearing. On reconsideration, I adhere to my dissent to the original majority opinion as to the law and equity. The petitioner-respondent also strenuously argues, in his petition for rehearing, that we misconstrued the facts when we found that Knauss had actual knowledge of Miles’s mortgage before the commencement of the cancellation action. He has prayed, by separate petition filed in this court, for leave to file a motion for remand with a mandate to the trial court to take additional evidence on the question of Knauss’s actual knowledge on this question. The testimony upon which we have concluded that Knauss had actual knowledge of the recording of Miles’s mortgage was elicited from hostile questioning by the attorney for Miles and is, at best, very indefinite and lacking in probative force. The cancellation action was commenced in March of 1963. In December, 1965, at the trial of the instant action, Knauss testified that “maybe a couple years ago” he first knew a mortgage had been recorded. Another time he testified, “Well, two or three years ago.” Knauss is a man who was oyer seventy years of age at the time of trial, and it is evident from the answers that he gave to the questions asked of him at the trial that his memory of past, recent events was not clear to him. I believe it would be in the best interests of justice to determine that material evidence on this question was excluded and to issue a mandate *907to the trial court to take such evidence and to certify and return it to this court, during which time all proceedings in this court shall be stayed pursuant to authority contained in Section 28-27-32, N.D.C.C.