ON PETITION FOR REHEARING.
It is claimed in the petition for re-hearing filed in this case that the Court in deciding the case, has misapaprehended the facts because it is stated, in the second point of the syllabus, that in the first suit there were no allegations in the pleadings, as to the undivided half of the eighty-six and one-half acre tract of land and similar statements appear in the opinion, while it is contended that there are such allegations in the pleadings in the first suit. The assignments of error and argument were based *139upon, no such ground. The contention at the hearing was not that this tract of land was actually embraced in the pleadings of the former suit, but only that the plaintiffs could have set up their claim against it in that suit, and were therefore, bound to do so or be forever barred as to it. In the bill of complaint in the former cause there are no such allegations touching the eighty-six and one-half acre tract, if indeed, any at all, as would have supported a decree for the sale of Mrs. Ray’s interest in it. It is there stated that the defendant Catharine Ray, in soliciting credit from the plaintiffs and contracting her debt with them, represented to them “that she was the owner in fee of two valuable tracts of land which were unincumbered to-wit: A tract of thirty-four acres of land and one of eighty-six acres of land.” But there is no allegation that she owned the eighty-six acre tract or any part of it, or that the plaintiffs had a lien upon it, or any part of it; nor is there any description of it in the bill, other than that it is in Cabell County, or any exhibit with the bill in whiclf said tract is mentioned or described.
It is also true that the bill prays “that a commissioner be appointed to sell the real estate of the defendant Catharine Ray” but that cannot affect a tract of land not alleged-to belong to her, and against which the bill sets up no claim.
No other reference to the eighty-six and one-half acre tract of land appears in the record of the case as made in the circuit court, and no rights respecting it could have formed any part of the controversy in said former suit. It is mentioned in the petition filed in this Court but that is no part of the record in tha lower court, to which alone we must look to determine what was involved in the case.
Affirmed.