The nature of this suit is fully stated in the opinion rendered on the former appeal of this- case, to be found reported in 102 S. W., p. 750.
We are inclined to the opinion that the two abstracts of title filed by the appellants in the court below of date January, 1908, and September, 1908, should be considered together, and that the trial court erred in not permitting the appellants to introduce in evidence the deed from Eidson and wife to Guess Swift and Gay, of date March 17, 1893. There is nothing appearing upon the face of the record that the abstract of September 22 was to entirely supersede the former abstract filed in January, and we can see no reason why the two could not be considered together in determining whether or not the appellee had received notice of the title papers proposed to be introduced in evidence by the appellants.
The point raised in the second assignment of error will doubtless be cured before another trial by the appellants filing an additional or a new abstract of title, which would embrace the execution and the evidence that they propose to offer in connection therewith. If the execution, or the evidence showing that one was issued and was lost, is introduced upon another trial, of course, the appellants would have the right to offer in evidence the sheriff’s deed executed thereunder. What we have said, in effect, disposes of the fifth assignment.
The error pointed out in the sixth assignment will doubtless be corrected upon another trial. As we construe the statute it only authorized a recovery for the use and occupation of the premises two years prior to the filing of the suit.
The question of limitation presented! in the seventh assignment of error is not properly presented in the brief. The special charge requested is not set out and the facts in connection with it are not sufficiently stated in order to determine whether the charge would have been proper. If the facts justify it, the appellants will have the opportunity to have this issue passed upon on another trial.
The eighth and ninth assignments are disposed of by our reversal on the first question discussed.
The meager facts stated under the tenth assignment are not sufficient to show that the appellee is estopped to question the title obtained by Wylie at execution sale. Of course, if he' leased from Wylie he could not question Wylie’s title during the continuance *272of that lease, but when that relationship terminated he had the right to assert against Wylie any title that he had.
For the reasons stated the judgment is reversed and the cause remanded.
OPINION ON REHEARING.
In the motion for rehearing it is claimed that we erred in not striking out the statement of facts. The appellee filed in this court on May 15, 1909, a motion to strike from the record the statement of facts for several reasons stated in the motion. On the same day that the case was reversed and remanded, June 2, 1909, we overruled this motion without passing upon the merits of the motion or determining whether the reasons advanced by appellee were well taken or not. Appellee doubtless overlooked the endorsement that we made upon the back of the motion when the same was overruled. It is as follows: “Without passing upon the merits of the motion, the same is overruled because not necessary to be considered as case is reversed on a question of law not dependent upon the facts.” We reversed and remanded because the trial court refused to admit in evidence certain deeds offered by the appellant, which, if admitted, would have had the effect of showing that the appellee Eidsón and wife, had parted with their title. The action of the court in this respect and the relevancy of the evidence referred to all appeared from the bills of exception, consequently, the error was one of law and would require a reversal of the judgment in favor of appellee, independent of what may be shown by the state of facts.
In the' original opinion, in disposing of the question presented by appellant’s sixth assignment of error, we said: “The error pointed out in the sixth assignment will doubtless be corrected upon another trial. As we construe the statute, it only authorized a recovery for the use and occupation of the premises two years prior to the filing of the suit.” The specific point of error here raised is claimed by the appellant to be the refusal of the court to give an instruction to the effect that the plaintiff would not be entitled to recover for use and occupation of the land in controversy for a longer period than two years prior to the commencement of the suit. This is clearly the meaning of the statute as indicated by article 5273 and subdivision 2 of article 5278. But upon a re-examination we find there is an exception to and a qualification of this rule as fully appears in article 5279, and that is to the effect that where the claim for improvements is greater than that for the use and occupation during the period of time indicated in the two first mentioned sections, value of the use and occupation for a longer period may be considered for the purpose of balancing the claim for improvements.
If upon another trial a charge is so framed as to embody this view, appellants would be entitled to have the question submitted to the jury if the facts justify it.
We have considered all the other questions raised in the motion, and the same is overruled.
Reversed and remanded.