On Motion for Rehearing.
The majority of the court adhere to the views expressed in the original opinion and appellant’s motion for a rehearing will be overruled.
The writer, however, after further consideration of the ease upon the motion for a rehearing, has reached the conclusion that appellant showed an outstanding title in John A. Snyder, and therefore the appellee was not entitled to recover. It appears without dispute that some years prior to the purchase of the land in controversy by the ap-pellee and those under whom he claims J. J. Snyder, the common source, by a warranty deed reciting a valuable consideration, conveyed said land to John A. Snyder, and there is no evidence whatever that J. J. Snyder after such conveyance reacquired the land. In the case of Ferguson v. Ricketts, 93 Tex. 565, 57 S. W. 19, Martin, the common source, derived his title to the land involved in that suit, directly from the original grantee, Gre-goria Garcia. About 22 years prior to the conveyance of the land to Martin, Garcia sold and transferred the same to Adolphus Stern. In holding that the facts stated showed a superior outstanding title in Stern, the Supreme Court, speaking through Mr. Justice Brown, said: “The government was the common source as to Martin and Stern. The latter, having the prior conveyance, had the superior title. There was no chance for Stern’s title to be in the chain of the common source, because the direct connection of Martin with Garcia necessarily excluded the conveyance to Stern. No presumption arises that the common source has acquired an independent outstanding title. Such presumption would nullify the rule that the title of the common source may be attacked by showing a superior outstanding title.”
Here, notwithstanding the rule as to proof of common source that when one accepts a conveyance from another the presumption arises, as against the grantee, of title in the grantor, the Supreme Court, although there was no evidence to rebut such presumption, refused, because of the direct connection of Martin with Garcia, to apply such rule and indulge the presumption that either Garcia, before his conveyance to Martin, the common source, had reacquired the land from Stern or his grantees, or that Martin had acquired it. If, therefore, there was no chance for Stern’s title to be in the chain of common source and the presumption could not be indulged that the common source had the title from the state, then it would seem to necessarily follow that where, as in the case at bar, the outstanding title emanates directly from the common source, such presumption could not be indulged. By the deed from J. J. Snyder, the common source of title in this case, to John A. Snyder, whatever title the former had in the land in controversy passed to and vested in the latter, and to hold that J. J. Snyder had reacquired the land before his conveyance to the Halls under whom appellee claims such acquisition must be presumed under the facts of this case. Applying the principle of the Ferguson-Ricketts Case, which I believe controls the decision of the question, this cannot be done. I do not think that either such possession as J. J. Snyder had of the land at the time he sold the same to H. T. Hall and W. D. Hall, or his assumption of ownership at that time, or the relationship which existed between him and John A. Snyder, materially affects the question.
I am therefore of the opinion that appellant’s motion for a rehearing should be granted, and the judgment reversed. The majority of the court, however, takes a different view of -the matter, and the motion is overruled.