On original submission of this appeal, the question was raised that the only controversial issue in the suit was one involving title to land, and that partition of the land among the joint owners was merely an incidental matter; thus, when the disputed title is settled, the partition would necessarily follow without controversy. It can hardly be seriously contended that there is a controversy over the partition of the land involved in suit, the controversy centering on the question of title. The record reveals, as expressed in our opinion (118 S.W.2d 358), that on the trial of the plea of privilege, voluminous documentary evidence was introduced by each party, bearing more or less upon their respective contentions affecting the title in dispute. Therefore, a question of title is involved. I see no reason to repeat the findings of fact here; as reflected by our former decision, they are reaffirmed.
The Supreme Court (Tide Water Oil Co. v. Bond, 143 S.W.2d 751), on application for mandamus, forwarned that a formal writ would issue to this court, requiring questions of law affecting venue to be certified to that court, unless we reverse our decision and remand the cause to the District Court of Rusk County, Texas. On such mandate, this court reconsidered its decision, but declined to follow the suggestion of the Supreme Court; on the contrary, reaffirmed all that was said and decided in our original opinion. I was not in accord with our action. Consequently, in the light of facts disclosed in our original and supplemental opinion, writ of mandamus was issued by the Supreme Court, expressing the opinion that the statement of the record, as disclosed in our decision, presents a question of title. Tide Water Oil Co. v. Bond, Chief Justice, et al., Tex.Sup., 148 S.W.2d 193, not yet reported [in state report]. I adhere to our findings of fact in the case, but, on further consideration, have decided to express briefly my opinion that a question of title, to an undivided interest in the land, is involved, such as is comprehended by Subd. 14 to Art. 1995; therefore, in deference to the record and the decision of the Supreme Court, I dissent from the action of the majority, believing our former decision should be reversed and the cause remanded to the District Court of Rusk County. This, I think, should satisfy the writ of mandamus; if not, the cause on certified questions should be submitted to the Supreme Court. *Page 209