On Petition for Rehearing.
McNutt, J.A very able brief has been filed by appellants on their petition, for a rehearing of this cause, and the court has given very careful consideration to the only question raised thereby, viz., the construction that should be put upon §3001 Burns 1914, supra, and after such consideration, we are of opinion that this court is bound by the construction placed upon said section by the ease of Binns v. Dazey, supra, and that such construction is correct.
4. But upon a re-examination of the record in this cause, we find that one matter raised by the assignment of error, and presented by appellants’ brief, was not decided by the original opinion. It is contended by appellants that the trial court erred in finding and adjudging that, from the proceeds of the sale of the real estate, the costs of this action, including a reasonable fee for plaintiff’s attorneys in this action, be first paid. It appears that appellants, the defendants in the court below, vigorously and in good faith resisted appellee’s claim to any part of the real estate involved in the litigation. In such a case it has been decided by the Supreme Court, and rightly, we think, that the defendants should not be required to pay any part of plaintiffs’ attorneys’ fees.
*657In the case of Bell v. Shaffer (1899), 154 Ind. 413, 424, 56 N. E. 217, 221, it is said: “No reason exists why a defendant in a partition suit, who appears by attorney, to contest the title of the plaintiff, should be compelled to contribute to the payment of the attorney’s fees of his adversary, and we can not believe that the statute was intended to subject him to such liability.” See, also, St. Clair v. Marquell (1903), 161 Ind. 56, 67, 67 N. E. 693; Osborne v. Eslinger (1900), 155 Ind. 351, 58 N. E. 439, 80 Am. St. 240. It follows that the portion of the judgment directing appellee’s attorneys to be paid a reasonable fee out of the fund derived from the sale, as part of the costs of the action, was erroneous.
The cause is remanded, with instructions to modify the judgment by eliminating therefrom the following portion thereof: “And a reasonable fee for plaintiff’s attorneys in this action”. It is ordered that the costs of this appeal be paid by the parties to the appeal in the following proportions: Appellee one-third and appellants two-thirds.
The petition for rehearing is overruled.
Note. — Reported in. Ill N. E. 644, 113 N. E. 310.