*593On Petition for a Rehearing.
Mitchell, J.Counsel for appellee insist that a rehearing of this cause ought to be granted, because the court erred in holding at the former hearing, that the stipulation in the conveyance from Conner to Mrs. Thompson, by which she covenanted to pay certain judgments which had been taken against Conner, and through which judgments the appellee claims title, did not have the effect to create or extend the liens of such judgment.
It is said, in effect, that because Conner held the legal title to the land in controversy, at the time the judgments were taken against him, such judgments became liens on thé title so held, and because Mrs. Thompson afterwards accepted a deed from him, which contained a stipulation therein written, that she should pay these judgments, it therefore follows that the judgment liens which, prior to that time, affected only the naked legal title which Conner conveyed to her, were thenceforth effectual to bind her whole estate, both legal and-■equitable. This conclusion is said to follow from the fact that Alexander M. Thompson, who had from the first a complete and perfect equitable right to the land, agreed with Conner that the latter should convey the naked legal title which he held to Mrs. Thompson, ánd that by such agreement he recognized the judgments, and consented that they should constitute a valid and binding lien on the land.
This we understood to be the appellee’s position from the beginning, and it seems to us the opinion given at the former hearing makes it clear that the position thus taken was not regarded by this court as tenable.
At the time the judgments, through which the appellee claims title, were taken, Conner had no interest whatever in the land, except that, without knowing the fact, he held the naked legal title, Thompson being in possession and both sup*594posing the latter had a perfect title. The authorities cited in the opinion abundantly show that under such circumstances-no effectual lien whatever attaches, as against the actual owner of the land, especially where he is in possession. This, as we understand the appellee’s argument, is not disputed.
How, then, can it be said that the liens of the judgments are made more effective on account of the fact that without any consideration whatever Thompson consented that the title which Conner held should be conveyed to his (Thompson’s) wife? Ther'e was no dispute but that the land belonged to-Thompson. Conner set up no claim to it. He had no right in it. If he had conveyed the land to Thompson, under the circumstances, and exacted from him as a condition such an agreement as that contained in the deed, an agreement to pay for that which was confessedly his own, would any one claim, that either Conner or his judgment creditors could have enforced the agreement thus exacted against Thompson ?
Hence we say again, as we said in effect' before, that no> matter what voluntary agreement Thompson may have made-with Conner, in order to get that which was without adverse claim or dispute his own, and no matter that without any consideration Mrs. Thompson accepted the deed with the stipulation referred to, the judgment liens were in no wise extended or enlarged.
If the agreement had been supported by an adequate consideration, Mrs. Thompson would have been held estopped to assert that the land was not bound by the judgments which it was stipulated she should pay, or if the appellee stood in the attitude of an innocent purchaser for value, like principles would afford him protection. .In either case protection would be afforded, not because the liens of the judgments, against Conner were extended by any subsequent agreement, but because by the subsequent agreement, supported by an. adequate consideration, the appellant would have been estopped to show the facts.
Filed Dec. 23, 1886.There is nothing in the record which calls for an application of the doctrine of estoppel—there is no such pretence.
The petition for a rehearing is overruled, with costs.