On Rehearing.
Appellee’s motion for rehearing presents nothing that would cause us to change our holding on the original hearing, and it is, accordingly, overruled.
But appellant’s motion to reform the judgment rendered in favor of appellee for the sum of $2,400 must be sustained. First, we were in error in allowing appellee to recover interest. The pleadings of appellant and the undisputed evidence and agreement of the parties in open court show that appellant tendered the amount of his note at its maturity, and also made a legal tender of the same in court on trial, and he should therefore be relieved from the payment of all interest.
Furthermore, we were in error in not allowing appellant a credit against appellee foil the amount of the'i?ents of the property in controversy. As stated on the original hearing, it was undisputed that appellee has at all times retained possession of the property awarded to appellant, and the jury find that its reasonable rental value from March 9, 1910, to the date of the trial is $40 per month. The judgment heretofore entered by us is therefore modified so as to be in ap-pellee’s favor for the sum of $2,400, without interest, less a credit in appellant’s favor of $40 per month from March 9, 1910, the date of Mrs. Marrett’s deed to appellant, to February 21, 1913, the date of the trial in the district court. This judgment is without prejudice, of course, to the rights of the parties accruing since the trial in the district court.
Appellant’s motion to reform the judgment is, accordingly, granted as herein shown.