This case was affirmed at a previous day of this term. In his motion for rehearing appellant insists that we failed to pass upon his third bill of exceptions, which contains the following: Appellant for the purpose of showing that the identical land upon which the fence alleged to have been injured was situated was not in the quiet and peaceable possession of Mrs. M.L. Dimmitt and William Wood, or either of them, at the time it is alleged to have been injured, offered in evidence a general warranty deed to said land from F.W. Caruthers to Mrs. S.G. Pate, wife of defendant, which deed conveyed said land to Mrs. Pate as her separate property. We held, as stated by appellant, in the original opinion that the title to the land not being an issue in the trial of this case, that the court did not err in excluding the deed; and the question involved in this bill is similar to that discussed in the other bills. However, appellant insists that said deed was admissible for the purpose of showing that the prosecutor was not in the quiet and peaceable possession of the land. He cites us to McCune *Page 487 v. State, 68 S.W. Rep., 180. The majority of the court hold that said case supports appellant's proposition. The writer believes the case cited in the original opinion and Kalklosch v. State, 10 Texas Ct. Rep., 169, are clearly authorities to the converse and should be followed. In accordance with the opinion of the majority the motion for rehearing is granted, and the judgment is reversed and the cause remanded.
Reversed and remanded.