(dissenting). I agree with the majority of the court in their conclusion that—
“The presumption of a grant to one having record title can never fairly arise, where all the circumstances are perfectly consistent with the nonexistence of the grant.”
*742I also agree with their conclusion that—
“The facts in this case are more consistent with the nonexistence than with the existence of the grant.”
I am of the opinion, however, that this latter conclusron is one of fact, at which it was the province of the jury, and not of the court, to arrive, and I cannot concur in that portion of the opinion which declares that plaintiffs failed on this issue as matter of law.
Notwithstanding this view, however, I think it clear that the judgment, except as to the small interest claimed by the Republic Production Company, under the Devore heirs, should be affirmed upon the issue of innocent purchase, which I agree with the majority in thinking the evidence established as matter of law for defendants. ~
As to the Republic Production Company, I agree with the majority that there is authority for their position that “a joint assignment of error is not available, unless it is good as to all joining,” but I am of the opinion that this technicality of construction, if it ever prevailed in the federal courts, has been abolished by the recent act of Congress, the purpose of which was, and the effect of which ought to be, to prevent the loss on appeal of a substantial right through some modal or formal failure. I therefore, while concurring in the affirmance of the main portion of the judgment on the ground above stated, dissent from the judgment of affirmance in the particular last mentioned.