On Petition For Rehearing

• Decision Date: 31 May 1905
• Citation: 10 Idaho 659
• Parties: On Petition For Rehearing.
• Court: Idaho Supreme Court

10 Idaho 659

On Petition For Rehearing.

Supreme Court of Idaho

May 31, 1905

AILSHIE J.

-Respondent's petition for a rehearing in this case does not present anything new or any question not originally considered by us, though it again discusses some questions which we did not deem it necessary to pass upon in the original opinion. The persistence with which counsel insists that we have mistaken both the law and the equities in this case has led us to again examine the case at length, and after so doing, we are unable to see wherein the judgment of the trial court could be affirmed. It must necessarily be true that the court cannot see either the law or the equities of a case in the same light in which they are viewed by counsel for the losing party; and it may be, indeed, that sometimes the court mistakes them entirely. However notwithstanding counsel's studied argument to the contrary, we are convinced that this is not a case where we have mistaken either.

We are asked in the petition to announce more definitely the position of the court as to what title White took under the deed of January 25th. The only interest the appellant claims and for which he is litigating, is an undivided one-half interest in this property, and we have held that under the record he is entitled to such interest. Under the deed of January 25th, the entire legal title passed from Beery to White. Under the contract of April 25th, Beery recognized that the entire legal title had passed from him and that all the interest he retained in the property was an equity. What that equity was is not recited, but we would infer from the record that it consisted in a vendor's lien for the unpaid purchase price. By that contract Beery parted absolutely with all of his equity in an undivided one-half interest in this property. It therefore follows that after the execution of the contract of April 25, 1900, that both the legal title to the entire property and equitable title to an

undivided one-half interest therein was vested in White, and that by the terms of that agreement White recognized a remaining equity in Beery to the other undivided half interest in this property, and for that equity agreed to pay the sum of $1,750 on or before January 1, 1901. White does not appear to have paid this sum or to have received any further deed from Beery to his equity in this remaining half interest. On the contrary, Whitney appears to have received a deed from Beery for the entire tract of land on May 13, 1901. So far as the facts, therefore, disclosed by this record are concerned, we conclude that the appellant Dewey now owns an undivided one-half interest in the property as described in the deed taken by him and Whitney the other one-half interest.

It is suggested that White acquired all the interest he obtained in this property while sustaining a fiduciary relation toward Whitney, his partner, under the agreement of September 7 1899. This we think is correct, and it is equally true with reference to Whitney. But counsel contends that this relation had been terminated prior to the date on which Whitney acquired his deed. To this we cannot assent. The...