On Rehearing.
In the original opinion we found that Mr. Oox, a witness for appellants, testified that he made the field notes of the 93 acres claimed by Hannah Rhone and described in the suit of 1910, and that he testified that the improvements north of the 93 acres were old at the time he made the field notes. We were mistaken in this statement. Mr. Oox did not make the field notes to the 93 acres, and he testified that the improvements north of the 93 acres .were new in 1908, rather than old'.
Appellants’ attorney also complains of our statement that it was contended by him that the opinion in the former appeal determined that the 1910 suit included all of this survey. This case was very ably argued, on submission, by both parties, and very probably we misconstrued his position. On his request, in this motion for rehearing, we withdraw that part of the original opinion.
Appellants, in their motion for rehearing, assign as error our finding that Hannah Rhone was the tenant of plaintiffs while occupying the lands claimed by plaintiffs in *815this suit, and that there was no testimony controverting this conclusion, their proposition being:
“Hannah Rhone was not the tenant of plaintiffs while occupying the land, because the jury were asked that question and so found, and this court is in direct conflict with the verdict of the trial jury, which finding of the jury is not even questioned on this appeal.”
Question No. 9 submitted to the jury was as follows:
“Do you believe from the evidence that Hannah Rhone while occupying a portion of section No. 5, I. & G. N. R. R. Co., was asserting in herself an independent claim to 160 acres thereof?”
To this question the jury answered “Yes.” This question directs the jury’s attention to no particular time. Hannah Rhone testified that she lived in the B. Snell house as the tenant of her father for several years, and moved from there to the 93 acres claimed by her and described by metes and bounds in the 1910 suit. This 93 acres she did claim. The suit was filed against her for the 93 acres after she had moved off of the lands claimed by her father in this suit, and after she had ceased to be his tenant. When the suit was filed in 1910, the appellees in this suit claimed no portion of the 93 acres, and, so far as this record discloses, they never at any time claimed any portion of the 93 acres, nor any portion of I. & G. N. survey south of the point where the Keaghey and F. M. Stewart almost touch. (See map in original opinion.) Hannah Rhone and the appellees in this case thought that this I. & G. N. survey all lay above this point at the time Hannah Rhone moved onto the 93 acres.
We have carefully examined the statement of facts, in view of appellants’ motion for rehearing, and are convinced that the record fully sustains us in our conclusion.
Again, appellants assert:
“The suit brought by appellants here against Hannah Rhone and Jim Brown on August 9, 1910, and prosecuted to judgment in 1913, in favor of appellants here for the land in controversy, said parties being tenants of appel-lees, in possession, broke the continuity of the possession of appellees commenced in 1902, and defeated, in possession, their limitation claim.”
If Hannah Rhone had been the tenant of appellees in 1910, the suit against her would have broken the continuity of appellees' possession, but, under the facts of this record, she was not their tenant in 1910, having moved off of the land claimed by them in this suit, and at that time was living on the land included in the field notes to the 93 acres.
The motion for rehearing is overruled.