An inspection of the records in this case shows that the defendants, Thomas and Dashner, owned as tenants in common 240 acres of land in Mills County; that the mortgage of plaintiff covered only 197 1/2 acres of said land; that the defendant Dashner began an action in partition against Thomas, and in said action Dashner prayed that the real estate be appraised by three disinterested appraisers to be appointed by the court, and that after appraisement, that the land be ordered sold, either at public or private sale, but if at public sale, at the best and highest bid made therefor; and if at private sale, at not less than the appraised value thereof; and that after said sale, that the proceeds of the sale, after payment of any mortgage indebtedness thereon, and after the payment of expenses and costs, including attorney's fees for plaintiffs' attorney, be divided equally between the parties to said action.
In that partition action Thomas answering joined in the prayer of the petitioner, and asked that the land be sold, the debtors paid, and the balance of the proceeds divided between the parties. *Page 1033
The petition for rehearing complains that the opinion says the testimony of Dashner, Haney and Cook, was objected to properly, and motion made to strike. It was not meant by this holding to say that, ordinarily, the defendant in such a case is not permitted to show by such evidence, generally, what was the real contract, but even considering this testimony, under the record in this case, the court would necessarily arrive at the same conclusion as was arrived at in the opinion.
The defendant Dashner now contends he is not liable. He bought in the land. The court record shows that whoever got the land at private sale (and it was), the mortgage was to be assumed, under the pleadings of the parties themselves in the partition case. So Dashner received title to the whole of 240 acres; he also received the rents for 1934; he yet holds the land. And he now attempts to escape everything he prayed for in his petition. This would be unconscionable. Hence, the decision in the opinion is adhered to, and for these reasons, the petition for rehearing is overruled. — Overruled.