The opinion
ON MOTION FOR REHEARING.
GARRETT, Chief Justice.
In giving our reasons for reversing the judgment of the court below in this case, we did not deem it necessary to discuss the two qiiestions presented in the motion for rehearing as having been passed over by this court in the opinion.
1. The evidence with regard to the depositing with the clerk of the pleading styled first amended original petition, utterly fails to show that it was done within five years from the time defendants took possession of the land under their deed from J. H. Shapard, and the finding of the court below that there was no satisfactory evidence to justify its being considered as a paper filed in the case, could not have been otherwise.
2. Defendants claimed the land under a deed from J. H. Shapard, executed September 2, 1883. '
The defendant
W.
T. Taylor testified: “I went' into possession of this portion under my deed from Shapard, and have held possession under this deed ever since, having always claimed the identical land conveyed to me by Shapard. I bought one-third of the Edwards league from the heirs, and also the 100 acres from Mr. Shapard, but afterwards it was found that in the first partition of the league, made before my purchase from Shapard and from this heir, that one heir was left out,
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and since this suit was brought there has been another partition, and each of us had to lose some land to make up the interest of this other heir, and they ignored my deed from Shapard entirely. In this second partition, the court set apart to me the part of the Edwards league of land conveyed to me by Mr. Shapard. The land sold to me by Shapard is the same land that Dr. Brown is now suing for.”
Delivered October 18, 1894.
Notwithstanding the statement of the witness that the deed from Shapard was ignored entirely, it is very clear that the defendants were holding the land in controversy at least as tenants in common under the Shapard deed, and that the identical land was set apart to them in the partition, which was proper, if it could be done with due regard to the rights of others. We think, therefore, that the contention in the motion for rehearing, that there was a want of title in the Taylors sufficient to support the plea of five years’ limitation, is not sustained by the evidence. There is a privity of title between the Shapard deed and the partition.
The motion for rehearing will be overruled.
Motion overruled.