The opinion
On Rehearing.
PER CURIAM.
In the original opinion it is said, in effect, that when section 1158 Rev. Laws of 1910 is considered the very most defendant Prank Phillips and those claiming under him were entitled to was protection for the purchase price paid, etc., as provided by said section. On rehearing it is urged that section 4021, Rev. Laws of 1910,. is squarely in conflict with section 1158, supra, and that in the event it is filially decreed that the deed executed by Minnie Armstrong to her grandfather is a mortgage, the rights of defendant Prank Phillips and those claiming under him are governed by section 4021. This section was not called to the attention of the court in any of the briefs filed in the cause previous to the decision of this court, and the provisions of this section were overlooked and not considered by the court. The section reads as follows:
“When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such grant is not defeated or affected as against any person other than the grantee or his heirs or devisees or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the county where the property is situated.”
It is in the Statutes of 1890. Section 1158 was enacted in 1897, and being in conflict with section 4021, repealed the same by implication. This was the state of the law on this question until the adoption by the Legislature of the 1910 Code. Both sections were incorporated therein. Section 1158 is found in the Code under the subject of “Conveyances,” chap. 13, p. 291, Rev. Laws of 1910, and section 4021 is found in the Code under the subject of “Mortgages,” chap. 40, p. 1049. Rev. Laws of 1910. It thus appears that these two provisions of the Code were adopted by the Legislature at the same time, and since we. are of the opinion, as contended. that they are in conflict and both cover the same subject-matter, it is necessary to determine which controls. The solution of this question is found in chap. 76, sec. 8158 of the same Code, which reads:
“If the provisions of any code, title, chapter or article conflict with or contravene the provisions of any former code, title, chapter, or article, the provisions of the latter code, title, chapter, or article must prevail as to all matters and questions arising thereunder out of the same subject-matter.”
It seems to us that the clear import of this provision is that if any former code conflicts with the present code the present code shall govern, and that if any chapter, title or article of the present code conflicts with the provisions of any former title, chapter, or article in the same code, the provisions of the latter title, chapter, or article must prevail. We think, under the above rule of construction, the word “latter,$>’ as applied to two conflicting provisions in the same code, must be held to have reference to" place or arrange
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ment. From this it follows that section 40:21 is the applicable provision.
We have re-examined the record and are still of the opinion that as to whether the Minnie Armstrong deed should be deemed a mortgage, plaintiff’s evidence is sufficient to withstand the defendant’s demurrer. If upon the trial the deed is held to be a mortgage, the 'burden will be on the defendants to show that they are innocent purchasers.
We therefore adhere to the former opinion, except as herein modified, and the petition for rehearing is denied.