¶1OPINION DENYING A PETITION FOR REHEARING.
¶2In a petition for rehearing duly filed in this case it is claimed the court overlooked a matter duly submitted to it for decision. In the judgment of the district court no provision was made for the protection of the defendant’s title to the real estate in question in case he should pay the judgment for the purchase-price. The plaintiff recovered only because he had made a tender of abstracts of title and deeds in proper form, and continued to stand ready to deliver them. These documents should have been ordered deposited with the district court for the benefit of the purchaser in order that he may not be left without a conveyance in case he satisfies the judgment. To this extent the judgment was erroneous.
¶3In the brief of the defendant filed in this court the matter is referred to in two places in what amounts all together to five lines of type. The court observed these references, but did not feel called upon to modify the judgment because of the manner in which the question was presented. Neither the petition in error nor the specifications of error in the brief referred to it. The motion for a new trial, the overruling of which was assigned as error, asked for a reexamination of the facts and not for a modification of the judgment, and if, as the petition for rehearing assumes, the error was one reviewable without exception, it should have been assigned in the petition in error.
¶4Inasmuch, however, as the matter is one of indifference to the plaintiff and does affect a substantial right of the defendant, the court is inclined to grant a modification of the judgment of the district court to *664an extent sufficient to meet the difficulties of the defendant's situation, as above described. Such will be the order, but without costs to the plaintiff in error in this court. In all other respects the judgment of the district courtis affirmed, and the petition for a rehearing is denied.