On Petition ror Rehearing.
Mr. Chief Justice Mooredelivered the opinion.
2. It is insisted in a petition for a rehearing that the part of the thirty-one acres to which plaintiff claims to be entitled is not described in the complaint, evidence, or decree with sufficient certainty for identification, and that the decree is broader than the pleadings and findings, in *495that it awards to plaintiff the absolute use of a five-acre tract out of the land that was reserved for a common pasture. The complaint states that the defendant, during her natural life, is entitled to the exclusive use of about three acres of the land, whereon are erected her dwelling house and barn, and also to a common right of pasturage in the premises, and contains the following allegation: “The plaintiff and her said husband, C. W. Pugh, have grubbed and cleared a five-acre tract, and that the remainder of said premises have been used jointly, as aforesaid, by both the plaintiff and defendant.” No motion having been made by the defendant in the court below requiring the plaintiff to describe the premises to which she claimed to be entitled with greater particularity, it is now too late to litigate the question here presented.
The facts detailed in the opinion are criticised as not being in accordance with the testimony, but we believe a careful examination of the transcript warrants the statements so made. The petition will therefore be denied, and it is so ordered. Rehearing Denied.