dissenting:
I respectfully dissent. A reading of this court’s previous opinion clearly establishes that it was not intended to finally adjudge both issues addressed in that appeal. Only one issue was finally determined, i.e. that the deed from Sampson to Stewart conveyed Mr. Sampson’s interest in all of his real estate in Knox, Clay, and Laurel Counties except 300 acres known as Sampson Hill to Mr. Stewart. The remainder of the trial court’s summary judgment was reversed. This court did indicate, however, that the defense of equitable estoppel might apply to this case, and that the settlement agreement between Stewart and the Sampson heirs was evidence which bore on the issue. Significantly, though, our opinion did not state that the settlement agreement, standing alone, was sufficient evidence to prove the defense.
As with any affirmative defense appel-lees had the burden of proof on the issue of equitable estoppel. Unfortunately on remand no further proof was adduced by either side. At the time the court entered a final judgment on the merits, therefore, the only evidence before it which bore on the issue of appellees’ defense of equitable *540estoppel was the settlement agreement. In my opinion that agreement, standing alone, was insufficient as a matter of law to meet appellees’ burden to prove their defense of equitable estoppel.
Accordingly, I would reverse the court’s judgment with directions that it enter a judgment in favor of the appellants in both appeals.