On Motion for Rehearing.
The third ground of the motion for rehearing filed by plaintiffs in error is as follows: “The court is clearly in error in so much of its finding as reads as follows: ‘He (Austin) lived for a number of years in the neighborhood of this property and never asserted any claim to the property adverse to *172Ryon or did any act which could be construed as a revocation or repudiation of bis former declaration that Ryon acquired title by his deed from Mrs. Pierpont.’ In mating this statement the court has overlooked the fact that after the making of the contract, viz., on November 19, 1869, Wm. T. Austin, as attorney in fact for Willis R. Austin, conveyed to W. P. Hamblen about 250 acres of the 328 acres claimed by Ryon, which 250 acres Wm. T. Austin had conveyed to Willis R. Austin in 1849.”
It is true that Wm. T. Austin, as attorney in fact for Willis R. Austin, did on November 19, 1869, convey to W. P. Hamblen a tract of land which he had conveyed to Willis R. Austin in 1849 during the time in which he held title from Mrs. Pierpont to all of the unsold portion of the east half of the grant, and that the land described in this conveyance included a large portion of the Ryon 328-acre subdivision as surveyed by Kosse. This deed does not, however, include any of the land in controversy in this suit. As stated in the main opinion, after deducting all of the land sold by Wm. T. Austin out of the east half of the grant there remained at the time the deed from Mrs. Pier-pont to Wm. Ryon was executed approximately 328 acres. This deed did not describe the land thereby conveyed by metes and bounds but conveys all of the grantor’s interest in the east half of the grant. We think it clear from these facts that, even if Wm. T. Austin knew at the time he, as attorney in fact for Willis R. Austin, executed the deed to W. P. Hamblen that the land thereby conveyed included a portion of the Wm. Ryon subdivision as surveyed and platted by Kosse, the execution of such deed could not be regarded as an assertion of title to the land in controversy, which was not included in said deed, nor to any portion of the east half of the grant which had not been sold prior to the execution of the deed from Mrs. Pierpont to Wm. Ryon.
We have carefully considered the motion for rehearing and are of opinion that it should be overruled, and it has been so ordered.