Womble

Upon the rehearing we discover nothing to justify a different conclusion from that heretofore reached. For the reasons in our former opinion stated and also for the reasons set forth in the opinion in the same case, numbered 206, post, p. 535, the judgment is affirmed. Buckles, J., and McLaughlin, J., concurred. Case No. 206, above referred to, immediately follows the decision in this case, and the following is the former opinion heretofore rendered in this case, March 1, 1906:

This is an action to annul a certain agreement of sale of certain mining land between plaintiff John T. Womble and defendant Wilbur; also to cause to be delivered up to said plaintiff and canceled a certain deed made by him to said Wilbur and alleged to have been placed in escrow with defendant bank under said agreement; also for a certain sum as rentals for the use of said land, and for attorneys' fees. The court gave judgment: That the defendant bank deliver forthwith to defendant, Braddock, the deed in question, as assignee of defendant, Wilbur, and also the deed of Wilbur to Braddock; that plaintiffs recover judgment from defendant bank for the sum of $5,625.00, being the amount of the last payment due plaintiffs on account of said sale, which had been deposited to plaintiffs' credit by said Braddock; that plaintiffs recover from defendant Wilbur the sum of $2,151.00 as interest, less $300.00, rentals due him from plaintiffs; and that defendants, the bank and Braddock, recover their costs. Defendant Wilbur appeals from the judgment on the judgment-roll alone. It was alleged in the complaint that Womble and Wilbur entered into an agreement on May 24, 1900, by which the *Page…