OPINION ON MOTION FOR REHEARING. Appellant's motion for rehearing attacks our opinion on the sole ground that we erroneously held that the occupants of the property were tenants of Charles P. Woodbury, and appellant concedes that, if the record contains any evidence of such tenancy, the motion for rehearing is without merit. *Page 535
[4] The undisputed evidence shows that the record title was in Charles P. Woodbury; that he made written application for the loan in his own name and, with his wife joining, executed the deed of trust on the property to secure the loan.
Two tenants occupied the property. Mr. Stratton rented the upstairs portion and Miss Thompson rented the lower portion. Stratton testified that he verbally rented from Charles P. Woodbury, with the understanding that witness could later buy the property if he so desired. Witness also said that, at some time not stated, Woodbury told him that the property had been acquired with funds of his uncle's estate, but he (Woodbury) controlled the title and could make a good title if witness decided to buy. Later, this witness testified that what Woodbury told him was that he had purchased a second mortgage on the property with funds of the estate, "and that he had foreclosed the second which he bought and acquired the title." That he could not recall definitely that he (Woodbury) said he personally acquired it in his name, but he did say he controlled the title.
The other tenant, Miss Thompson, testified she verbally rented a portion of the property from Stratton and paid the first few months' rent to him, after which she paid the monthly rent to Charles P. Woodbury, making the checks to him personally.
Regardless of what Woodbury may have said as to the source from which he acquired the funds to pay for the property, the evidence shows that he at all times held himself out as the owner and both Stratton and Thompson were his tenants.
The motion for rehearing is overruled. All concur except Hays,J., absent.