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ON PETITION POR REHEARING.

Stiles, J.

— With the main decision in this case we continue satisfied, for the reasons therein given. But in the petition for rehearing the appellant, Muzzy, earnestly endeavors to obtain a change in our holding in the matter of the $5,421.15 allowed for the land conveyed to Spokane College.

As will be observed, we sustained the rule adopted by the superior court, viz.; That the measure of recovery proper under the facts was the value of the land at the date of the conveyance to the college, and not at the date of the commencement of the action. The appellant, Muzzy, appealed on the whole case, and the appellee, Tompkinson, appealed from this part of the decree, she claiming that at the latter date the property was greatly more valuable than at the former one.

At the hearing the time of counsel for argument was greatly extended, but neither side reached this subject, but left it to the decision of the court on their briefs.

Our decision was against the appellee in this particular, and from the briefs of the appellant we obtained the impression that if the main case, were decided against him he was satisfied with the judgment for the value of the college land. Upon this point the brief said:

i?We think if the court erred in that matter it erred against the appellant, and not against the appellee.”

And again;

“No reason can be conceived why the rule of damages in a case of this kind should be more onerous than in trespass and conversion, yet in those cases the rule is universal *636that the measure of damages is the value of the article at the time it was taken or converted, with legal interest from that date.”

Now, however, it is urged that there should have been no recovery at all against appellant for the college land, but that, inasmuch as the Spokane College took the land as a gift, and was, therefore, not a purchaser for value, it should have been made a party defendant, and the trust should have been impressed upon its land to the relief of Muzzy. If it were true that the conveyance to the college was without consideration, perhaps the position of the appellant would be sound. But let us see how the facts stand.

The complaint alleged that the appellant had conveyed certain land to the college, and that its value was thirty thousand dollars, and the answer did not deny either of these allegations. The testimony was all taken so that both sides rested, and the cause was set for argument June 16, 1890, without a word being said upon either side as to the college land. On December 30, 1890, however, upon the plaintiff’s motion, the court allowed her to take testimony as to the value of this land, and to introduce the deed to the college. On January 3, 1891, the testimony was taken, the court excluding all inquiry as to the value at the time the action was commenced, but allowing the value at the date of the deed to be shown. At the conclusion of the testimony both parties stipulated the value at the date of the deed to have been f350 per acre. Then the deed was introduced, which expresses a consideration of “one dollar, and other good and valuable considerations,” and, after describing the tract conveyed, contains the following:

“It is expressly agreed by and between the parties to this instrument that the tract of land last above described is to be platted by the party of the second part, its successors or assigns, in accordance with the general plan *637adopted by said party of tbe first part in the platting of the addition above mentioned (Muzzy’s addition to Spokane Falls), to the end that all streets shall be of the same width as those in the above named addition, and continuation of the same. It is intended to convey eight blocks of land exclusive of streets,”

Now, with no plea of a defect of parties, and not a word further said in the case about this land, how can we say that there was no consideration for the' deed, or that the Spokane College, when the action was commenced, still held any portion of the tract?

But were it to appear clearly that the conveyance in question was not such as to vest the title in the college as a bona fide purchaser, it would be still a subject for discussion whether the cestui que trust could not elect either to follow the property into the hands of the voluntary grantee or to obtain in equity the proceeds of the conveyance or the value of the property from the trustee. Lathrop v. Bampton, 31 Cal. 17 (89 Am. Dec. 141) ; Bradley v. Luce, 99 Ill. 234; Long v. Fox, 100 Ill. 43,

Being satisfied with the correctness of the decision heretofore made, the petition for rehearing will be denied.

Appellant moves this court to render judgment against appellant’s sureties on his appeal bond. The statute (Code of 1891, § 1432) provides that the supreme court may render such a judgment for the amount of the judgment, damages and costs referred to in the bond, in case such damagés can be accurately known to the court without an issue and trial. But in this case the bond secures to the appellee the payment of all rents or damages to property during the pendency of the appeal out of the possession of which she is kept by reason of the appeal, and as such damages cannot be known without an issue and trial, the motion is denied.

Hoyt and Dunbar, JJ., concur.

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