¶1ON REHEARING.
¶2After the filing of the foregoing opinion, a petition for rehearing was filed by appellee, which we have considered.
¶3The argument of the petition is mainly directed to the proposition that, as before the foreclosure of the trust deeds the land was the property of Andrew Oberly, and L. S. Coyne *42and Daniel Oberly continued to reside on the premises with their father, the money which was paid to Miller and Birge was the proceeds of the land, and that, therefore, the land should be held as a trust for the benefit of the creditors of Andrew Oberly.
¶4As L. S. Ooyne holds her title under the trust deed, it was incumbent on the plaintiff to show that she acquired her title with the money of Andrew Oberly. The mere fact of her residence on the land falls very far short of making such showing, especially where it is not shown how much of the land was in cultivation, and as a consequence no estimate of rents and profits can be made.
¶5It is further claimed, in a supplement to the petition for rehearing, that because the plaintiff redeemed the land from tax sale, he should recover not only the amount paid for such redemption and interest, but also the costs of this action.
¶6The redemption from tax sale was made pending the suit. The whole controversy was as to the right of plaintiff to subject the land to the payment of his debt. The defendant L. S. Coyne is the successful party on that issue. We are unable to find that any costs were made upon the claim for reimbursement of the amount paid for the redemption from tax sale. Under these circumstances we do not think plaintiff is entitled to costs.
¶7Reversed.