The opinion
On Rehearing.
ANDERSON, Chief Justice.
The movant, Woodham, insists that the foregoing opinion does not conform to the rule laid down in section 227, 21 C.J. pp. 1223-1225, quoted in brief, mainly because it does not appear that a judgment or decree on the answer to the original cross bill was rendered in favor of said Wood-ham. As we understand, frbm the provision of law quoted from C.J., to wit: “It is necessary, however, that the claim or positipn previously asserted or taken should have been successfully maintained,” that a specific decree or judgment did not have to be rendered in favor of Woodham on his first answer, if it otherwise appears
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that said answer had been successfully maintained. Mrs. Hillman’s original cross-bill proceeded upon the theory that the first mortgage had been satisfied, then when Woodham, the mortgagor, asserted in his answer that said first mortgage had not been satisfied hut was still a valid and subsisting encumbrance on the land, Mrs. Hillman, relying on said answer, acquired ' the first mortgage and was compelled to change her ’ course of procedure by amending her cross-bill. This was, in effect, a successful maintenance of the position first asserted by Woodham and he was thereby estopped from setting up the defense to amended cross-bill, that the first mortgage had been satisfied — a position contradictory to the one taken in his previous answer. Hodges v. Winston, 95 Ala. 514 , 11 So. 200 , 36 Am.St.Rep. 241 ; McQuagge Bros., Inc., et al. v. Thrower, 214 Ala. 582 , 108 So. 450 .
The rehearing is 'denied.
THOMAS, BROWN, and KNIGHT, JJ., concur.