Opinion of the Court-Stewart, C. J.

of the contract or were able or willing to perform such provision, and such failure may be considered as a circumstance in determining the question as to whether the appellant and his assignors intended to insist upon a forfeiture of the respondent's rights under said contract.

Evidence of the intention of the seller not to rescind the contract because of default of payment, and that the time for payment was waived, is shown by the acts of the seller, in that for six months after the payment was due, the seller pursued the purchaser and attempted to collect the balance of the amount due upon said note. On the same day plaintiff made demand for the possession of the property, to wit, November 16, 1911, and before this action was commenced the respondent tendered to the appellant the amount due upon said note with interest. As further evidence of the necessity for a demand for the possession of the property, and notice of rescission, is a provision of the contract as follows: "With interest on said amount from the date of maturity of notes covered by this agreement until paid, at the rate of eight per cent per annum, said payments to be evidenced by interestbearing promissory notes, made by the party of the second part." This provision in itself indicates that the time fixed in the contract and specified in the notes for the payment of the several sums might be extended and interest charged at the rate of eight per cent from date of maturity of said notes.

It appears from the facts of this case that it was not the intention of the appellant or his assignors on the 10th day of May, 1911, to rescind the contract of sale and declare a forfeiture of the provisions of the contract by reason of the failure of the respondent to make payment on that date. The failure to retake the property on that date, and no effort being made to collect the purchase price at that time, and the extension of time being extended for a period of about six months, we think entitled the respondent to notice on the part of the appellant or his assignors of the election of remedy the appellant or his assignors intended to pursue. The seller under such a contract cannot mislead a purchaser by an effort on his part to pursue both remedies; he must either accept one or the other; and where, as in this instance, the entire

Opinion of the Court on Rehearing.

purchase price has been paid except a small per cent, and such balance is tendered before action is commenced, and such tender is paid into court for the benefit of the seller, the seller should be precluded from a retaking of the property under said contract.

In determining this question the trial court evidently realized the duty and power of the court to apply rules of equity properly applicable to a case where the plaintiff is seeking to enforce the specific performance of a contract, and this court is of the opinion that such rule should be applied to determine questions of fact such as are involved in this case. Where the entire facts are presented to the court in an action to enforce the specific performance of a contract, the rights of the parties to the contract should not be adjudged upon technical or narrow questions or considerations. so as to do injustice to the parties to the contract, but the court should give full consideration to all the facts and the intention and action of the parties, and give such judgment as will be just and equitable to the parties affected.

We have thoroughly examined the evidence in this case and the court's findings and judgment and discover no error in the record. We think that justice has been done. Judgment is affirmed. Costs awarded in favor of respondent.

Sullivan, J., concurs.

Ailshie, J., concurs in the conclusion reached.

Petition for rehearing granted.

ON REHEARING.

(January 4, 1913.)

PER CURIAM.-A petition for rehearing having been filed in this case, and the same having been granted, the cause was reargued upon rehearing. After this argument the court went over the case and made a thorough examination of the same, and are satisfied that the former opinion in this case was correct. For that reason we reaffirm the original opinion filed in this case.

INDEX-VOL. 22.

ABSTRACT COMPANY.

Actions for Damages-Limitations.

1. Where a prospective purchaser of a tract of land purchased
from an abstract company an abstract of title to such property,
accompanied by certificate to the effect that such abstract contained
a notation of all instruments of record affecting the title, including
tax certificates and tax deeds, and relying upon the correctness of
the abstract and the truth of the certificate annexed thereto, the
purchaser of the abstract subsequently purchased the land therein
described, and it thereafter developed that at the time of the
making and delivery of such abstract there was an outstanding tax
deed to such property which was not disclosed by the abstract, and
the purchaser of the abstract and land therein described was obliged
to expend money to procure a cancellation and release and satis-
faction of the tax deed, and thereafter commenced an action against
the abstract company to recover damages sustained on account of
the mistake and false representation made by the abstract and cer-
tificate thereto; held, that the limitation of such action is governed
by subd. 4 of sec. 4054 of the Revised Codes, and that the cause
of action in such case does not accrue until the discovery, by the
aggrieved party, of the facts constituting the fraud or mistake.
(Hillock v. Idaho Title & Trust Co., 440.)

2. An abstract company, duly and regularly authorized to transact
business under the laws of this state, which engages in the business
of making and selling abstracts of title, thereby represents to the
purchasers of such abstracts that its employees are competent and
qualified to make examinations of the records and to furnish such
abstracts and that they are expert therein, and that the purchaser
of such abstract may safely rely upon the statements and repre-
sentations contained in the abstract and certificate thereto. (Hillock
v. Idaho Title & Trust Co., 440.)

3. One who sustains damage by reason of the mistake and false
and fraudulent representation contained in an abstract may, under
the provisions of subd. 4 of sec. 4054 of the Rev. Codes, commence
his action to recover damages within three years after discovering
the fraud or mistake. (Hillock v. Idaho Title & Trust Co., 440.)

ACTIONS.

Action at Law-Equitable Defenses-Pleading-Findings and Judgment.
1. Where an action is brought to recover a debt alleged to be
due for maintaining and keeping up a canal through which water

(821)

ACTIONS (Continued).

is carried to the respective owners of said ditch, and said cause
is put in issue by general denials, and an equitable defense is also
filed to said cause of action by a cross-complaint alleging title in
the defendant and cross-complainant in the said canal and praying
that the title of defendant be quieted, it is error for the trial court
to submit to the jury the issues made by the complaint and answer,
and also the issues arising upon the cross-complaint and the answer
thereto, as a single question, to be determined by a general verdict.
(Penninger Lateral Co. v. Clark, 397.)

2. In an action at law, where a suit in equity is interposed as
a defense, and such equitable relief alleged constitutes an inde-
pendent cause of action and is properly plead and such defense as
may result in a decree in his favor, the party making such plea
becomes the actor and plaintiff as to all matters alleged in such
affirmative defense. (Penninger Lateral Co. v. Clark, 397.)

3. Where an action at law is brought and an equitable defense
is interposed by a cross-complaint and also in an action cognizable
in equity where a cross-action at law is interposed, the proper rule
of procedure for the court is to hear and dispose of the equitable
cause of action before proceeding to try the issues at law. (Pen-
inger Lateral Co. v. Clark, 397.)

4. Where an action is brought and an equitable defense is inter-
posed by a cross-complaint, and also in an action cognizable in
equity where a cross-action at law is interposed, the court may
direct the jury to find a general verdict upon issues made by the
complaint and answer. And if the court desires the advice or aid
of the jury in the equity suit made by the cross-complaint, it is
proper for the court to submit such questions as are proper and ap-
plicable to the issues to the jury for their answers, and may adopt
such findings of the jury as the findings of the court; but where
such special questions are not submitted to the jury, it is necessary
for the trial court to make findings in the equity action as a basis
upon which the judgment is founded. (Penninger Lateral Co. v.
Clark, 397.)

AGISTER'S LIEN.
See Liens, 3.

ALIENS.

Succession to Estate of Decedent—Appearance and Claim.

1. Under the provisions of sec. 5715 of the Rev. Codes of this
state, "Aliens may take in all cases by succession as citizens,"
provided, however, that "no nonresident foreigner can take by sue-
cession, unless he appears and claims such succession within five
years after the death of the decedent to whom he claims succession."
(Connolly v. Reed, 29.)