On Motion for Rehearing.
[2] Both parties have submitted motions for rehearing in this case, and the one presented by appellee has been granted, and appellant’s has been overruled, with the exception hereafter noted.
In deciding this case, this court proceeded upon a misunderstanding concerning appel-lee’s pleading. That oversight is attributable to this writer, and he assumes sole responsibility for the mistake referred to.
On account of that mistake, this court disposed of the appeal upon the theory that appellee’s pleading showed that she had enjoyed the possession and use of the premises for more than two years, and failed to allege that she was holding it all of that time under a contract of rent with the appellant, and that she had complied with its terms. In the opinion heretofore filed the writer set out what was then believed to be all the pleadings relating to that subject. But, as a matter of fact, in appellee’s supplemental answer she alleged that—
“Pending the negotiations between plaintiff and defendant with reference to the performance by plaintiff of his said contract of sale, defendant agreed to pay, and did pay, plaintiff rent on said premises on the basis of one-fourth of the cotton and cotton seed, and one-third of the corn raised on said premises, all of which defendant has paid to plaintiff.”
That allegation, in connection with those copied in our former opinion, takes the case out of the rule of law announced and considered applicable in our former opinion; and therefore this court fell into error when it reversed the case upon that ground.
[3] As shown by our former opinion, all of the other questions presented in appellant’s brief had been duly considered, but, as requested by appellant’s motion for a rehearing, they have been considered again, with the conclusion that they should all be decided against appellant, except one. That question is presented by the second assignment of error, which charges that the court erred in decreeing a foreclosure of the lien created by the judgment and ordering the sale of the land in controversy, and directing that the proceeds, after satisfaction of defendant’s judgment, should be paid over to the defendant, because any balance of proceeds of the sale should have been decreed to the plaintiff. The proposition of law asserted in that assignment is correct.
By the decree of the trial court the land in controversy was awarded to the plaintiff, subject to the defendant’s claim against the plaintiff for $750 and interest, and when the latter is satisfied from the proceeds of the sale of the land, as decreed by the judgment of the court, the excess of such proceeds, if any there be, should be paid to the owner of the land, who is the plaintiff in this litigation, and not to the defendant, who does not own the land, and has no interest in it beyond her lien to secure the payment of the $750 awarded to her. Therefore the judgment will be reformed so as to require such excess to be paid to appellant, Lon A. Speer, who was plaintiff in the court below, and as thus reformed it will be affirmed, and the costs of this appeal taxed against appellee.
We do not care to discuss the other questions presented in appellant’s brief further than to 'say that the findings of the jury, which are not without evidence to support them, support the judgment that was rendered, and that the court did not abuse its discretion when it taxed the costs against the appellant. According to the findings of the jury, the appellant breached the contract to sell the land to appellee; and therefore she was entitled to an equitable lien to secure the $750 payment she had made upon the contract, and was entitled to hold possession of the land until her debt was paid. This being the case, and it appearing from the findings of the jury that appellant was wholly in the wrong, and that appellee was free from blame, we do not think the trial court abused its discretion in adjudging the costs of that court against appellant.
Rehearing granted, and judgment reformed and affirmed.
Rehearing granted.
Judgment reformed and affirmed.