ON PETITION FOR REHEARING. This case is again before us, on a petition for a rehearing, but as the petitioner has not raised any new questions, and as we have considered all the questions in our original opinion, it results that his petition must be denied.
Briefly stated, the petitioner had title to this land and conveyed it to his brother, John W. Atkinson, by deed. Defendant John W. Atkinson and defendant Bertha Atkinson went into possession and lived on this land under that deed. John W. Atkinson obtained a divorce from his wife, Bertha Atkinson, but no disposition of this property was made in the decree, and after the divorce was obtained he left her and her children in possession of the property. John W. Atkinson owed a balance of $50 on the purchase price and later redelivered the deed to W.B. Atkinson, who now claims to own the property. A pro confesso and final decree were taken against John W. Atkinson. No deed was executed by John W. Atkinson back to W.B. Atkinson.
Now the petitioner insists that defendant Mrs. Atkinson is in possession under her husband, John W. Atkinson, who went into possession under W.B. Atkinson, and therefore she cannot now deny complainant's title.
There is nothing in this contention. It is not shown by what title the defendant Mrs. Bertha Atkinson claims the property, but taking it for granted that she does claim under John W. Atkinson, by parol gift or deed, or that she does not claim under anybody, her possession is good against everybody except the true owner. Certainly the legal title is not in the petitioner, W.B. Atkinson, and he cannot recover in ejectment without the legal title, as shown in our original opinion; therefore the petition is denied and the costs will be taxed against the petitioner.
Faw. P.J., and Felts, J., concur. *Page 275