On Motion for Rehearing.
MR. CHIEF JUSTICE BRANTLYdelivered the opinion of the court.
Appellants have filed a petition for a rehearing of this cause. *249alleging two grounds therefor: (1) That the district court found that the property claimed by the appellants belongs to the estate, that this finding is recited in the opinion of this court, and that, though this court held that the district court upon application to sell real estate has no power to determine questions of title, as between the executor representing the estate, and the heir or devisee, yet, this finding having been recited and the order of sale affirmed, it follows that this court has in effect adjudicated the question of title; so that, in a controversy over the title in a court of competent jurisdiction, the order may be pleaded as res adjudicata and thus conclude the rights of appellants; (2) that this court, by affirming the order as made, has held that the district court was not in error in directing the sale of the property the title to which is in dispute, whereas that court should have deferred the sale until the question of title might be adjudicated in an action brought, or to be brought, for that purpose.
1. Though the finding referred to is recited in the statement of facts preceding the opinion of this court, it is clear from even a casual reading of the opinion that the judgment can have no such effect as counsel anticipate. If the question of title could not be inquired into and determined by the district court, it must follow that any finding upon that subject by that court was wholly outside of the purview of the application and immaterial. The concluding paragraph of the opinion applies to this finding, though special mention is not made of it. It was error for the court to make a finding upon a matter falling entirely outside of the purview of the application; yet it was error without prejudice and appellants cannot complain.
2. The second ground of the petition proceeds upon the assumption that one purpose of the objections made by appellants in the district court was to secure a delay of the sale, in order to protect the property from sacrifice until the question of title could be determined by a court of competent jurisdiction, whereas they were intended to prevent the sale altogether. *250No such theory was entertained by appellants in that court, nor is error assigned in the briefs of counsel in this court upon the refusal of the district court to stay proceedings until the question of title may be determined. The notion that such a stay should have been granted was, so far as the record shows, conceived after the cause was removed to this court. Under thi rule, repeatedly declared, this court will not consider errors not assigned in the brief. While we did not, and do not, decide that the district court might not, in its discretion, have postponed the sale of the property in dispute until the question of title could be determined, whether the court did in fact err in failing to do so was not before us on the former hearing, nor is the fact that this court did not consider and decide this question ground for rehearing.
The petition is denied.
Denied.
Mr. Justice Holloway concurs.