We think the only reasonable inference is that the suits Nos. 124 and 315, were separate and distinct causes. In *Page 89 addition to the difference in numbers, the bill filed January 30, 1846, was upon its face an original proceeding. It also asked that the widow and children of John G. Jouett be made parties. As they appear to have been cited in No. 124 (at least the widow appears to have been), this is not consistent with it being a pleading in the old suit. However this may have been, it is clear that there is nothing that shows that this tract was drawn into controversy until the filing of the bill on January 30, 1846.
Upon the second subject mentioned in the motion, we simply held that the decree partitioning the lands was invalid for the reasons given. As between the parties to that proceeding, the original order made by the special judge was valid, but the subsequent proceedings were void. The order of partition was a consent adjudication between the parties that they were equal owners of certain lands, among them the headright of Thomas Jouett. But before the proceeding was instituted, Thomas Jouett had sold this survey to Timms, and vested in him the legal title, and upon the evidence in this record the plaintiff's claim consisted merely of what was adjudicated in the order of partition, which standing alone is of no effect against the conveyance to Timms.
The only theory upon which plaintiff could base a superior right would be that of innocent purchaser for value, and it would not be possible to admit such claim, unless we give effect to the partition, which we hold to be void for reasons already stated. Even then, it would have devolved on plaintiff to establish such equity as would prevail over the legal title, and it is doubtful if any facts exist in this record sufficient to lead to that result.
It is also insisted that the sale by the trustee was premature and void, because the note was given April 24, 1890, and the deed of trust February 5, 1892, when three installments of interest were in default, and therefore this must be taken as a waiver of the provision in the note for its maturity on default of three interest installments, and that the effect of taking of the deed of trust under such circumstances rendered it incapable of being executed until April 24, 1895. Applicant places this contention particularly upon the fact that the deed of trust is silent as to the provision for earlier maturity of the note. The record does not bear this out. The statement of facts may be said not to show distinctly that the deed of trust mentioned this clause, but the bill of exceptions taken to the admission of the trustee's deed, on this very ground, sets out the deed of trust in h???c verba, and it is shown to recite that the note in reference to which it was given, was due on the 24th day of April, 1895, and that it was expressly provided in said note that in the event of any three installments of interest shall be due and unpaid, then the whole debt shall become due.
These cover all the points raised in the motion for rehearing.
We see no good reason to change our opinion, and therefore overrule the motion.
Overruled. *Page 90