On Motion for Rehearing.
In view of appellants’ insistent motion for rehearing, we have concluded to add to our original opinion that in December, 1910, Mrs. Mattie Todd, joined by her children, plain*773tiffs in tlie suit executed a deed to I. B. Hand, purporting to convey the 60 acres of land owned by Mrs. Todd and also the 40 acres of land theretofore conveyed to Hand on' thé 5th day of October, 1891. Against this deed of 1910, appellants, also filed an affidavit of forgery and offered to prove by Mrs. Todd and two other of the plaintiffs claiming through W. R. Todd that at the time of the execution of the 1910 deed the 40 acres in controversy and described in the deed of 1891 were not included. The court excluded this evidence on the ground that it came within the inhibition of. article 3690, Rev. Statutes, which, as applies to this case, declares that, in actions by or against the heirs of legal representatives of a decedent, neither party shall be allowed to testify against the other as to any transaction arising out of a transaction with such decedent. Error was assigned to this ruling and it is now very urgently insisted that the error is material in that the evidence shows that the exclusive possession of I. B. Hand was after the execution and delivery of this 1910 deed and attributable thereto and that therefore if the deed of 1910 was a forgery the appellees in this case would be precluded from a recovery by virtue of article 5674, quoted in our original opinion.
While a majority of us are inclined to the opinion that the court ruled correctly, we do not find it necessary to determine whether the testimony offered to impeach the 1910 deed was within the purview of article 3690, for we originally concluded, and a majority of us now think, that the error, if any, is not such, under the findings of the jury and the evidence, as to require a reversal. .
The evidence tends to show that in 1910 I. B. Hand desired to purchase from Mrs. Todd and the heirs of W. R. Todd the 60 acres of land theretofore owned by them; that he agreed to give therefor $900 in cash and a promissory note for $900 secured by a vendor’s lien; .that I. B. Hand did not have the money with which to make the cash payment and included the 40 acres of land, now in controversy. and conveyed to him by the deed of 1891, in the deed of 1910 with a view of thus presenting a single title upon which he could secure a loan in order to make the cash payment of $900. Both Mrs. Hand and^the notary public, who testified that he wrote the deed, affirmed by their testimony that the 40 acres was included within the descriptive terms of the 1910 deed at the time of its execution and acknowledgment. It is significant that, while in that deed, a lien was reserved to secure the payment of the note provided for on the 60 acres of land theretofore owned by Mrs. Todd and her heirs, it was not made to apply to the 40 acres. Nor does the record present any reason except the one stated for Hand to insert in the deed of 1910 a description of the land to which he already held title under the deed of 1891. It further appears that some time after the execution of the deed in 1910 the purchase of that year was rescinded because of an inability on I. B. Hand’s part to secure the money with which to make the cash payment, and pursuant to such rescission he reconveyed to Mrs. Todd and others but omitted to insert in the deed of reconveyance the 40 acres in controversy.' There is nothing in the evidence to indicate that any of the appellants complained of the failure to reserve the vendor’s lien on the 40 acres in controversy in the deed of 1910, nor of the failure to include it in the reconveyance made by-1. B. Hand in cancellation of his purchase of the 60 acres. There is nothing to show, as we read, the evidence, that I. B. Hand ever claimed a right to the 40 acres in controversy under the deed of 1910, or claimed possession by virtue thereof. On the contrary, as stated in our original opinion, after the execution and record of the deed of 1891, he and he alone paid taxes upon this 40 acres. He also, together with the Todds, had actual possession thereof. That the Todds had possession jointly with Hand is not inconsistent with his- claim of right, and we conclude that Hand’s possession both before and after the deed of 1910 is attributable to the deed of 1891, and we think this conclusion is in harmony with the verdict of the jury on the issue of limitation.
The motion for rehearing is, accordingly, overruled.
BUCK, J., not sitting.