The broker accepted it, "upon condition that sale is perfected", a condition which the court said was probably inserted for the protection of the broker against any obligation on their part to buy the land, but which operated also in favor of the seller. The court further said, that the sale for $11,250 net was to be for cash, in the absence of contrary specifications, and that the conclusion of a binding contract for the sale would not fulfill the broker's obligation, but the sale itself must be perfected within the time limited. In Wolverton v. Tuttle, supra, the Supreme Court of Washington say that "the use of the expression 'net' to the vendor necessarily precludes any inference that Tuttle was to pay a commission in the event of a sale, unless the sum received should exceed the specified 'net' price. It can only be inferred that plaintiffs were either to look to this excess, if any, or to the purchasers for their compensation.” Plaintiff strongly relies upon Yoder v. Randol, 16 Okla. 308, 83 Pac. 537, as sustaining his contention that upon the facts in the case his commission was earned when the contract of sale was entered into. That case, with respect to the point here involved, was decided upon the pleadings, the trial court having rendered judgment upon the pleadings, and the Supreme Court held that the answer not only failed to rebut the averment in the petition of the employment and of a compliance with the terms thereof, but recognized the procurement of a purchaser by plaintiff, and acceptance of such purchaser by defendant, and it is stated in the opinion in the case that the petition alleged that the contract was to pay plaintiff a commission to consist of the excess above the net price to defendant of $2,750, that a purchaser was procured for $3,000, that defendant entered into a written. contract of sale with said purchaser, "and has since then duly conveyed said land to said purchaser." A very different situation from that disclosed by the pleadings and evidence in the case at bar. The later Oklahoma case of Hopkins v. Settles, supra, which was cited and quoted from in our former opinion, shows the opinion of the Supreme Court of that state with reference to the right to recover a commission upon facts quite similar to those in this case, and, in effect, substantially the same. And, in that case the right to recover was denied. The point is made in the petition for rehearing and brief that there was a variance between defendant's proof and the allegations of the answer. And it is argued in support thereof that the answer admits the contract of employment alleged in the petition, and fails to allege a special contract. We think it very clear that the answer does not admit the contract between the parties as alleged in the petition, but does allege a special contract. It first denies, generally, each and every allegation of the petition not specifically admitted, and then alleges that defendant advised plaintiff it was willing to sell at the prices of $30,000 for the ranch and $17 per head for the sheep, but would not pay any commission at those prices, and that upon plaintiff then representing that he had a purchaser who would pay $35,000 for the ranch and $17 per head for the sheep, defendant agreed that, if plaintiff produced a purchaser who would purchase and pay for the property at the prices named, then the defendant would pay plaintiff the sum of $5,000, "the difference between the price for which plaintiff was willing to sell and the price plaintiff represented the purchaser produced by him would pay therefor." By that averment plaintiff was to receive or be paid the sum named out of the purchase money when paid, and it was to be the excess above the net price to the owner of $30,000. It seems to be also contended that by the execution of the contract of sale the defendant actually received the purchase money. Of course, no authority so holds, and it is perfectly obvious that no part of the purchase price, except the sum of $10,000, was received by the defendant. The balance was surely not paid, nor secured by the purchaser, and could not, therefore, have been received. The petition for rehearing must be denied. Rehearing denied. BEARD, C. J., and BLYDENBURGH, J., concur. ROBINSON MERC. CO. v. DAVIS. (No. 937; Decided March 8, 1920; 187 Pac. 931.) MORTGAGES MORTGAGE TO PARTNERSHIP-MORTGAGE CREATES A LIEN BUT DOES NOT PASS TITLE-NOTICE OF FORECLOSURE-SUFFICIENCY OF DESCRIPTION IN NOTICE-EVIDENCE-JUDICIAL NOTICE OF BOUNdaries—Estoppel-SubsequenT ACQUISITION OF TITLE BY MORTGAGOR DOES NOT INURE TO BENEFIT OF Mortgagee. 1. Since a mortgage merely creates a lien upon the land and does not pass title thereto, a real estate mortgage may be executed to a partnership. 2. In this state, the title to property mortgaged, does not pass by the mortgage, to the mortgagee, even on condition broken. The mortgage simply creates a lien upon the land which must be sold on foreclosure to pass the title. 3. A foreclosure sale of land under a valid mortgage lien, will at the expiration of the redemption period, extinguish a subsequent judgment lien. 4. Notice of foreclosure of a mortgage executed to a partner- 5. The description of land in a mortgage by abbreviations in- 7. A mortgage given on land to which mortgagor had no title, containing no covenants of warranty, is insufficient to pass title to mortgagee on mortgagor's subsequent acquisition of title. ERROR to the District Court, Weston County; HON. E. C. RAYMOND, Judge. Action between the Robinson Merc. Co. and Leaman Davis and others. There was a judgment in favor of the Upton Lumber and Hardware Co. and the Robinson Merc. Co., brings error. Metz & Sackett, for plaintiff in error. Plaintiff in error is a judgment creditor and claims a lien upon the lands involved, superior to a mortgage deed to the Upton Lumber Co., which, though prior in time to plaintiff's judgment, is attacked on the ground that the alleged mortgagee is a partnership and incapable of taking a mortgage; also that as to 40 acres of the land, mortgagor did not have title to it, on the date of the mortgage, but acquired title subsequent and, under the circumstances, the judgment lien attached as a first lien; the published notice of foreclosure was defective for insufficient description of the land; the certificate of sale under the mortgage foreclosure did not show that a sale had taken place, and it was not acknowledged nor entitled to record, hence insufficient to authorize a sheriff's deed. The 40 acres was acquired after the execution of the mortgage and became subject to the lien of judgment of plaintiff in error (23 Cyc. 1376-81; Coad v. Cowhick, 9 Wyo. 316); the mortgage to the partnership, defendant in error, conveyed no title and could not be foreclosed by advertisement (Menage v. Burke, 45 N. W. 156; Gille v. Hunt, 29 N. W. 2; Tidd v. Rines, 2 N. W. 497); findings numbered 15, 18, 19, 20, 23 are unsupported by the evidence; conclusions of law numbered 5, 6, 13, 14, 16, 17, 18, 21, 25 are not sustained by the evidence or the findings of fact; important portions of the decree are not supported by the evidence and are contrary to law. Camplin & O'Marr, for defendants in error. There is but one assignment in the petition in error, towit the overruling of the motion for a new trial, but it does not appear in the petition that it was excepted to; errors of law complained of in the motion were not excepted to at the trial, and are, of course, not reviewable (Elliott App. Pro. 795); this is insufficient (12 Kinkead Code Pleading 1275). The petition does not describe the cause wherein the errors occurred, or the judgment to be reviewed as required by Court Rule No. 10. The bill of exceptions is not properly authenticated; the mortgage of the Upton Lumber Co. was prior in time to the judgment of plaintiff in error; the attaching of a judgment lien does not disturb existing equities (13 Cyc. 1377); the mortgage given the Upton Co. was not a conveyance, but merely a security (40 N. W. 255; 12 A. S. R. 736; 41 N. W. 1056; 95 A. S. R. 742; 75 N. W. 1109); in this state a mortgage is not a conveyance; the judgment of plaintiff in error never attached to the 160 acres (Section 2296, U. S. R. S.); irrespective of the Upton Lumber Co. mortgage, the plaintiff in error could get out an execution against W. H. Ware and take the 160 acres, for the reason that it was exempt from claims that accrued prior to patent (45 Pac. 766; 32 Pac. 460; 70 N. W. 933); but the owner can mortgage it (7 Pac. 693); a mortgage covers after acquired title (42 N. W. 88; 37 N. W. 417; Fuller v. Hunt, 20 Pac. 425). The judgment of the court below should be affirmed. BEARD, CHIEF JUSTICE. The only controversy in this case in this court is between the plaintiff in error, Robinson Mercantile Company, and the defendant in error, The Upton Lumber and Hardware Company, The Upton Lumber and Hardware Company claiming to be the owner of two hundred acres of land situated in Weston county, upon which the Robinson Mercantile Company claims a lien by virtue of a certain judgment. The court found in favor of The Upton Lumber and Hardware Company and entered a judgment and decree accordingly, from which the Robinson Mercantile Company brings the case here by proceedings in error. The facts as they appear by the record are that, December 15, 1909, William H. Ware made final homestead proof and received the receiver's receipt for the N. 1⁄2 of the N. W. 4, the S. E. 14 of the N. W. 4, and the N. E. 4 of the S. W. 4 of section 35, township 48 North, Range 67 West of the 6th principal meridian, containing 160 acres. That he received a patent therefor from the United States July 12, 1913. That December 29, 1909, Henry E. Ware and wife gave to said William H. Ware a warranty deed to the |