
    HARDIN, Appellant, v. GRAHAM et al., Respondents.
    (160 N. W. 850.)
    (File No. 3932.
    Opinion filed January 6, 1917.)
    Courts — Comity Between Federal and State Conrts — Whether Realty, After Mortgage Sale Redemption, is Encumbered — Federal Court to Determine, When.
    In a suit for foreclosure of a mortgage, the mortgage trustee not being a (party, brought by a lien claimant to redeem tbe property from a sale .by Federal Court receiver, in a suit to foreclose the mortgage, such sale 'being for the purpose of satisfying receiver certificates, held, that the state court in the pending suit will not determine whether, after such, redemption. ¡by plaintiff, the property still stands encumbered by the mortgage, or whether such mortgage still stands unforeclosed, but will leave those questions to be determined by the federal court. Previous opinion modified.
    Appeal from 'Circuit Court, Lawrence County. Hon. James McNenny, Judge.
    On petition for rehearing.
    Opinion! modified, and' rehearing denied.
    For former opinon, see, 38 S. D. 57, 159 N. W. 859. See, also, 36 S. D. 525, 155 N. W. 782.
    
      Howard G. Fuller, D. M. Vinsonhcder, and B. C. Strode, for ■appellant.
    
      Ogden & Ogden, for Respondent.
    Appellant submitted1 that: • The court, in deciding this case on appeal, apparently overlooked the fact that the contention on both sides, as to the character of the sale, was intended exclusively to relate to the right of redemption from the sale, and not to any question whether or net the decree was executed; the contention being made on the one hand that the right of redemption existed because this was a foreclosure sale, and upon the other hand1 that it was a receiver’s -sale, and hence no right of redemption existed. Roth Graham and Hardin have indicated in every possible manner that the theory of the case did not include the decree as unexecuted or as constituting a lien. This ■point being especially significant in connection with the assertion that appellant has not been heard on this subject, presumably relied on the theory of the case as tried1 below and pleaded, and is taken by surprise in this- behalf.
   GATES, P. J.

A petition for rehearing has been filed on behalf of appellant, the successful party upon the appeal in this case, the opinion in which, appears in 159 N. W. 895, which petition, among* other things, attacks the decision for that we held that the mortgage still stands unforeclosed and rests -upon the unexecuted decree of foreclosure, and that if redemption is made such decree will stand1 as an incumbrance upon the property, and that upon redemption the premises be decreed tó 'be in appellant subject to the unexecuted decree of foreclosure.

Upon further consideration and in view of the fact that the Union Trust Company, the trustee for the bondholders, is not a party to this action, we deem it test to leave to the federal court the determination of whether the mortgage still stands unfore-closed and whether after redemption is made the decree of foreclosure will stand as an incumbrance upon the property and wliat the rights of the parties will ¡be after such redemption is made. Upon those questions we express no. view, and the previous opinion is to that extent modified.

The judgment appealed from is reversed, and the trial court is directed to enter judgment allowing" Hardin within a reaisonahle time to pay into court the amount requisite to redeem from the sale made by the federal court receivers, and that upon such payment it be adjudged that Hardin has. made redemption from such receivers’ sale. If Hardin shall fail to make such redemption within such reasonable time as the court may direct, then the judgment appealed from may he re-entered. The clerk will tax the costs under the notice therefor and exceptions thereto-heretofore filed, and no new notice need he given. The clerk will retain the remittitur for 15 days.

The petition for rehearing" is 'denied.

POUUEY, J., took no part herein.  