ON PETITION FOR REHEARING. It is true, as contended by appellees, that the court, in the action brought by appellant, did not, in express words, find and decree that appellee Burket was the owner of the real estate in question and *Page 417 order that the balance of the proceeds arising from the sheriff's sale after the payment of appellant's judgment be paid to said appellee "as the owner of the equity of redemption." The complaint in that action alleged that appellee Burket was the owner of the real estate, and sought a foreclosure of the street improvement against her upon the theory that she was the owner. The court found that the allegations of that complaint were true, foreclosed the lien against appellee and McCool, ordered the real estate sold, and that the proceeds arising from such sale should be applied, "first to the payment of the costs and accruing costs in this action, then to the payment of the judgment herein, with interest, and that any balance remaining, be paid to the defendant, Ruth Burket." That decree has never been vacated; it is still in force. By its terms, the proceeds remaining after the payment of appellant's judgment were to be paid to appellee. That decree, whether right or wrong, positively and finally adjudged that the real estate in question should be sold, and that, out of the proceeds from that sale, the judgment therein rendered should be paid. That decree was binding on the trial court in the instant case, and is binding on this court.
Appellees say that the year allowed for redeeming from the sheriff's sale has expired, and that neither appellee McCool, as owner, nor appellee Burket, as holder of a tax lien, can 8. now redeem from that sale, thus depriving the one of his title to the property and the other of her lien. If that be true, it cannot change the legal effect of the decree ordering the property sold.
Rehearing denied. *Page 418