(on rehearing). On reading the petition and brief of the appellee for rehearing, we are convinced that we were in error in holding that the appellee had abandoned her rights in the decree to the SW frl. % °f Sec. 14-6-20, and this conclusion makes it necessary to consider whether or not the decree of the court was correct in awarding the appellee an undivided one-fourth interest in the SW frl. % of section 14-6-20. Upon an examination of the record as to this tract we find that the appellants and the appellee do not trace their title to this particular tract to a common source. The appellee traced her title to the Key wood place to a suit in partition in which, by the judgment of the circuit court of Yell County at its November term, 1870, the court awarded to Lavina McCraekin and Sarah Price, sisters jointly the S% of the SE 14 of section 15-6-20, known as the “Keywood tract,” .being 66 acres. It will be observed that this decree, from which the appellee deraigns her title, did not adjudge to Mrs. Sarah Price Wooten, through whom the appellee claims, any title whatever in any lands in section 14.
After the judgment for partition, but before the final report of the commissioners was made and approved, W. P. Wooten married Sarah Price. Sarah Price Wooten took possession of the lands awarded her under the partition decree. She died about June 12, 1871, after the birth of a son by Wooten. After her death, W. P. Wooten again married. On May 16, 1883, Lavina McCraekin and her husband, E. L. McCraekin and W. P. Wooten and his then wife, Mary E., joined in a warranty deed in which they conveyed the “SV2 of the SEi/j, of Sec. 15, township-N., and range 20 west, containing 66 acres more or less” to James K. Perry. On the 9th of June, 1891, James K. Perry and wife conveyed to Mrs. Elizabeth C. Sadler for her natural life and Rufus C. Sadler, and his heirs and assigns forever in remainder after the death of Elizabeth C. Sadler, the following described land in the Dardanelle District of Yell County, Arkansas, to wit: “The S— of the E fr. containing 68 acres more or less, and 32 acres off of the south side of the N% of the SE fr. all in Sec. 15, tp. 6 N. of base line, and range 20 west of the fifth principal meridian, making in the aggregate 100 acres more or less.”
It will be noticed that the deed from McCraekin and wife and Wooten and wife does not convey to Perry any lands in section 14, but only 66 acres in section 15, describing it; nor does the deed from Perry to the Sadlers convey any land whatever in section 14. After these deeds passed, the Sadlers claimed that Perry should have conveyed to them, and intended to convey to them, a small tract of .62 of an acre described as the SW fr. 1/4 of section 14, Tp. 6 N., R. 20 W., and its accretions, and in a snit between Perry and the Sadlers it was so held. Perry v. Sadler, 76 Ark. 45. In that snit it was shown that Perry and Sadler entered into a written contract containing, among others, the following clause: “Said Perry to deed unencumbered to said Sadler, the Keywood place, say about 618 acres more or less, and 32 acres off lower side of Brown place along the upper side of the Keywood place.” The court, in that case, said: “It is indisputably shown that it was an unintentional oversight in the conveyance to Perry and from Perry to Sadler that said fractional quarter' section of section 14 was not included. It was a small wedge-shaped tract running almost to the dwelling house on the Keywood place, including part of the yard and garden. This part of it was enclosed with other land, and all of it under control of the owner of the Keywood place. The parties did not know that this fraction did not pass under the deeds, as they supposed all of this land was in section 15, and it was clearly shown that it was intended to be conveyed.” After quoting the above, counsel for the appellee say: “The Supreme Court has held and declared that the SW fr. % of section 14 is a part of the Keywood place.” But the appellee was not a party to that suit, and neither she nor the appellants in this case are bound by that decision. That decision could not settle the rights of the parties to this litigation, and the appellee could not use that decision as proof that the lands in section 14, which she now claims, were embraced in the “Keywood place” which was partitioned to Sarah Price and Lavina McCrackin. The decision of Perry v. Sadler, supra, was not competent to show that Mrs. Sarah Price Wooten ever acquired any possession to tlm lands in section 14. She and Mrs. McCrackin, so far as the parties to this suit are concerned, must be held under the partition decree to have taken possession of the “Keywood place” described as in section 15 and not in section 14. Wooten, by his curtesy rights, acquired only such possession as his wife, Sarah Price Wootm, had. lie and Mrs. McCrackin conveyed the lands to Perry in section 15 and not in section 14, and Perry likewise conveyed to the Sadlers the land in section 15 and not in section 14. So, as far as the record evidence of title is concerned, there is an utter absence of proof to show that the parties to this lawsuit deraigned title to the lands in section 14 from a common source. Such being the case, before the appellee could have her title quieted and dispossess the appellants of the lands in section 14, it devolved upon her to show that she had perfect title by tracing same back to the government. This she has wholly failed to do. It follows that the decree of the chancellor as to the lands in section 14 was erroneous and must be reversed for the reason now given. The appellee’s motion for a rehearing as to this tract is therefore overruled.
The appellant’s motion for rehearing as to the lands in section 15 is overruled. Mrs. Sarah Price Wooten was the common source of title as to this tract. Therefore, appellants are not allowecl to challenge her title or to inquire of its source. When she died, her son Newton inherited her estate. His estate was ancestral from her, and at his death, intestate, and without issue, his estate ascended to the line of the mother from whom he inherited, as stated in the original opinion.
The trial court, having rendered a decree in favor of the appellee for both the lands in section 14 and in section 15, awarded a judgment in favoh of the appellee in the sum of $700 as rents for both tracts. Since our conclusion is that the appellee is not entitled to a decree for the lands in section 14, it follows that she is not entitled to a judgment for rents as to this tract. There is no proof in the record from which we can enter a satisfactory decree as to the betterments, rents and profits when same are apportioned between the lands in sections 14 and 15. The decree of the chancellor in favor of the appellee in the sum of $700 for rents must therefore be reversed.
The decree therefore will be reversed as to the lands in section 14, and the cause remanded with directions to dismiss the appellee’s complaint for want of equity as to that tract and quiet appellants’ title thereto; and also with directions, if the parties are so advised, to allow'them to further develop the cause on the issue as to betterments, rents, 'and taxes. In all other respects the decree is affirmed.