On Motion for Rehearing.
We have carefully examined plaintiffs in error’s motion for a rehearing, and are of the opinion that the same should be refused, and it has been so ordered.
We are requested to find additional facts to those set out in our opinion and in deference thereto we find the following:
*73W. P. H. McFaddin had the management, control, and use of the land for the companies he represented whenever the companies had it, and was their active representative on the ground.
Charles J. Chaison, the active one of plaintiffs, testified that he had no notice from Mc-Faddin, or any one else, that McFaddin had ceased at any time to exclude plaintiffs from possession of any land after he first excluded them; that he did not know of the friendly judgment of partition between Mc-Faddin and the Gleises, that after McFad-din first excluded plaintiffs, they had been similarly excluded, so far as he knew, since then down to the trial, and that in January, 1901, shortly after McFaddin fenced the land, witness made demand of him for possession.
McFaddin testified that Judge A. T. Watts told him that he, Watts, and his partner, Chester, owned two-fifths of the Gleises interest.
By deed dated July 3,1903, filed for record July 14, 1903, and duly recorded in the deed records of Jefferson county, A. T. Watts conveyed to McFaddin a two-fifths interest in the half of the Cunningham survey claimed by the Gleises, reciting a consideration of $2,100. McFaddin testified that he took this deed, with the understanding that the title had to be perfected before he paid the purchase price, and that in the meantime he paid rent as shown. The evidence shows that as the title was never perfected the consideration was never paid, and that this deed never became operative.
During all the time the land was occupied, as shown in our opinion, it had a substantial rental value.