ON MOTION FOB BEHEABING.
We see no reason to change or modify the opinion heretofore filed upon the questions of law therein discussed, but have concluded that it is best to remand the cause without instructions, so that it may be tried on such evidence as the parties may be able to adduce in support of their respective claims.
The motion for rehearing contends that there was evidence tending to show that by transactions among the Hamilton and Davis children the latter took interests in property left by their mother at her death which would otherwise have belonged to Mary Hunter, nee Hamilton, in compensation for their interests in the property left by James D. Hamilton appropriated to her use, and that thus a division was effected. The findings of the jury are inconsistent with this contention, and if there is any evidence tending to substantiate it, which we need not determine, it certainly is not of that conclusive character which would justify this court in holding, as matter of law, that plaintiffs have thus parted with the interest in the land inherited from their half brother, and affirming on that ground a judgment otherwise erroneous.
The motion also calls attention to the fact that defendant and his grantors have paid all taxes on the land and claims that, if plaintiffs should recover, as cotenants with him, they should be charged with their portion thereof. This claim would not have been precluded under our original opinion, but could have been determined in partition. These reasons, however, are sufficient to justify the modification of the original opinion in such manner as to allow a new trial upon such issues as may be made between Mrs. Broom and Mrs. Compton, plaintiffs, and the defendant. With this, the motion is overruled.
Opinion delivered April 20, 1905.