It is contended that we erred in reforming the judgment of the court below, because the question as to whether or not Mrs. Bentley had abandoned her contract of purchase was neither passed upon in that court nor assigned as error in this court.
Waiving the question as to whether or not the seventeenth assignment of error, copied on page 54 of plaintiff in error's brief, is sufficient to present the issue in this court, we have concluded that the judgment rendered by us is as favorable to defendants in error as they were entitled to under the allegations of their petition; and they are therefore in no position to complain, even if it be conceded that the special verdict did not directly find the facts upon which our decision is made to rest.
From defendants in error's petition it will appear that their suit is one in equity to recover from their vendor the amount for which it is alleged he had sold their land, above what was due him from them thereon. It is alleged, that the original sale by Evans to the plaintiffs was made in August, 1874; that the purchase price was $725, of which $500 was paid in cash, and a note for $225, payable in six months, was executed for the remainder; that the vendor expressly reserved a lien in the deed to secure this deferred payment; that in 1878, this note being still unpaid, the vendor instituted suit thereon, and attempted to foreclose his lien, but failed to make the wife, in whose name the deed was made, a party to the suit; that this suit was prosecuted to judgment against the husband, and the lot was sold thereunder during that year (1878), and at this sale the original vendor became the purchaser; that in 1884 the vendor resold the land as his own (it in the meantime having greatly enhanced in value), for the sum of $5500; that in 1891 this suit was instituted by the vendee (who is not shown to have made any effort for fourteen years to pay the amount promised by her), to recover the balance of this $5500 and interest, after deducting the amount due on her note, basing her right upon the ground that she was not made a party with her husband in the foreclosure suit brought by the vendor.
We are of opinion that this petition does not make a case in equity which entitles the vendee to recover of the holder of the superior title *Page 117 the enhanced value for which he had sold this lot, and doubt if it stated facts which entitled her to recover even her cash payment for which we gave her judgment with interest; and therefore, no matter what the verdict may have been, she should not have been given judgment for more than she was entitled to receive under her allegations.
Plaintiff in error does not complain of the judgment rendered by us, and we think defendants in error recovered all, if not more than they are entitled to; and while it might have been more regular for us to have remanded the cause, we see no good to be accomplished thereby, and as neither of the parties ask that this be done, the motion for rehearing will be refused.
Refused.