On Motion for Rehearing.
Appellants have presented a motion for a rehearing in this case and a request that this court make numerous findings of fact, and, after due consideration, we have reached the conclusion that both motions should be overruled. As to nearly all of the findings requested, we deem it proper to say that there is no conflict in the testimony; and this is especially true as to the facts showing that limitation did not begin to run against Mrs. Carr and those from whom she inherited title until 1896, when the statute was amended so as to include married women among those whose rights would be barred by the several provisions of the statute of limitations; and we here distinctly *222concede and state that appellee’s title, which rests alone upon limitation, must be based upon ouster of a co-owner, and adverse possession for a period of 10 years. In other words, the rules of law just stated are those that should have been, and that in fact were, applied in the court below; and appellants are not entitled to have the judgment reversed, unless they have shown, under a proper assignment of error, that some material finding, of the trial court is not supported by testimony. The findings referred to are set out in our original opinion, and need not be here repeated. The only assignments presented in appellant’s brief which charged that any findings of the trial court are not supported by testimony are No. 5a and No. 10. Assignment No. 5a complains of the court’s finding No. 3 “that John Barclay and wife, Jane Barclay, executed a deed to Moses D. Arledge on March 7, 1855, conveying a part of the 400 acres of land in controversy.” The assignment states two reasons why the court erred in making that finding, the first, being that the land was the separate property of a married woman, and the deed was void because it was not acknowledged, and, second, it did not purport to convey any portion of the 183% acres sued for by the plaintiff. Under that assignment appellant submits but one proposition, which is that the court erred in making the finding referred to, because the deed referred to was absolutely void. The trial court did not find, as stated in the assignment, that the deed mentioned conveyed any land, but found that it purported to convey “an interest in said 400 acres of land.” The testimony sustained that finding, and the record shows that the deed mentioned was not admitted in evidence as a muniment of title, but merely as a circumstance tending to explain the nature and extent of the claim thereafter asserted by Mr. and Mrs. Arledge.
The tenth assignment charges that the ninth finding of fact, to the effect that since 1868 neither appellants nor those under whom they claim had asserted any right, title, claim, or interest in the 400 acres of land until the latter part of the year 1909, at which time the Oarrs were requested to sign a deed conveying their apparent interest to the Arledges, whereupon they asserted title to an interest in the land and refused to sign the deed. The assignment charges error in that finding upon the contention that the uncontroverted evidence of both of appellants shows that they had never heard of the unacknowledged and unrecorded instruments claimed to be deeds from Mrs. Eliza Mays and John and Jane Barclay; and that, while they permitted Elizabeth Arledge to occupy and use all of said land, an undivided one-half interest therein was affirmatively and continuously claimed by Sarah Carr, and that she never heard of her title thereto being called in question, until a short time prior to the filing of this suit. In the finding referred to the trial court did not find that appellants had actual knowledge or had ever heard of the two deeds referred to in the assignment; and we are of opinion that the circumstances mentioned by the trial court, in connection with some others that were shown by the statement of facts, warranted the conclusion that appellants had notice that the Arledges were asserting an adverse claim to the entire 400 acres of land before, at the time of, and ever since the statute of limitation was amended in 18.96, so as to make it apply to married women.
[7] As to the contention that the testimony shows that Mrs. Carr had always claimed an undivided half interest in the land, the proof fails to show that she ever made any such claim to any person except her husband; and it further fails to show that either she or her husband ever asserted any claim to any portion of the land to either of the Arledges until the time stated in the finding complained of. But if she had asserted such claim, such assertion, unless it had taken the form of a suit against the Arledges, would not prevent the statute of limitation from running.
As bearing upon the question of ouster, and the trial court’s finding in its conclusion of law that appellants had notice of the adverse claim asserted by the Arledges, we refer to certain facts not stated in the trial judge’s findings of fact: The deed from M. D. Arledge and wife conveying 100 acres of the 400-acre tract to the McGinnises was filed for record in Williamson county 'December 29, 1879, and the deed executed by M. D. Arledge and wife, and conveying to W. A. Arledge 50 acres out of the northeast corner of the 400-acre tract was filed for record in Williamson county February 1, 1878; and the deed from the same grantors, executed on the same day to Mary Ann Brymer, conveying another 50 acres of said tract, was filed for record in Williamson county February 24, 1901. It was also shown that on November 25, 1879, M. D. Arledge and wife and A. F. Brymer and his wife, Mary Ann Brymer, executed a deed to Allen Wells, which was filed for record in Williamson county May 10, 18S0, and which purported to convey the last-mentioned tract of land. On October 16, 1884, Allen Wells and his wife executed a deed, which was filed for record in Williamson county December 30, 1884, conveying the same tract of land to John A. Ryals. On July 10, 1886, Womack & Sturgis obtained a judgment in the district court of Williamson county against J. A. Ryals, foreclosing a lien upon that tract of land. November 4, 1886, the sheriff of Williamson county executed a deed to Womack & Sturgis, conveying the same tract of land, which deed was not recorded. January 9, 1887, J. W. Womack and John P. Sturgis executed a deed, which was filed for record in Williamson county February 8, 1887, con*223veying the same tract of land to G. W. Murray. Thus it appears that all of the deeds and other instruments above referred to were recorded in Williamson county prior to 1896, except the deed from M. D. Arledge and wife to Mary Ann Brymer, which was recorded in February, 1901; but a deed from the Arledges and Mrs. Brymer and her husband, conveying the same tract of land to Allen Wells, was filed for record in Williamson county May 10, 1880, which was long prior to 1896.
So it appears that it was disclosed by the records of Williamson county that prior to 1896 M. D. Arledge and his wife had executed deeds purporting to convey by metes and bounds at least one-half of the 400-aere tract, which was formerly owned by Mrs. Arledge and Mrs. 'Carr as cotenants; but, notwithstanding the fact that they had done so, the Arledges thereafter and for more than 10 years after 1S96' continued in possession of the remainder of the 200 acres, claiming the same as their own and exercising full dominion over it for more than 10 years before the institution of this suit.
Counsel for appellant seems to contend that, inasmuch as the Arledges sold off fully as much of the 400-acre tract as they would have been entitled to in a partition between them and appellants, it ought to be held that their possession thereafter of the residue was in trust for appellants; but we fail to see the force of that argument. The purchasers from the Arledges held under deeds which purported to convey specific tracts by metes and bounds; and therefore their possession and claim was adverse to appellants, to the Arledges, and to every one else. Hence it seems to us that it would be more reasonable to conclude that when the Arledg-es divested themselves of title to half of the 400-acre tract, and assisted other persons in taking adverse possession of the half so conveyed, and thereafter remained in possession of all the balance of the land, such possession was intended to be adverse to appellants. In other words, after the Ar-ledges sold off as much of the land as they were entitled to, while they may have retained the legal title to a half interest in the remainder, in equity they had no right thereto, and therefore were not in fact co-tenants.
[8] Appellants were charged with knowledge of what the records of the county disclosed; and, such being the case, it seems to us that having notice of the fact that the Arledges had sold and conveyed to others as much of the land as they had any right to, then when thereafter they remained in possession of the balance of the tract, which in its entirety rightfully belonged to Mrs. Carr, the latter was charged with notice that such possession of the Arledges was adverse to any right of hers. Furthermore, for more than 10 years before this litigation commenced, the land records of Williamson county disclosed the fact that the Arledges were asserting an adverse claim to the entire 400 acres, because the deed from M. D. Arledge and his wife to the McGinnises, conveying 100 acres off of the south end of the 400-aere tract, described that tract as the M. D. Arledge 400-aere survey, and contains the following statement and recital: “The said 400-acre tract was the tract that my wife, Elizabeth Arledge, fell heir to from her father Matthias Prewitt’s estate.” Thus it appears that the exclusive claim of the Ar-ledges had become notorious, not only by reason of the facts referred to in the findings of the trial court, but by reason of the fact that their exclusive claim was embodied in a recorded deed, made by the Arledges, conveying a portion of the 400-acre tract, in which deed it was asserted, in substance, that Mrs. Arledge had title to the entire 400 acres.
After a thorough re-examination of the case, we are satisfied that our former disposition of it was correct; and therefore the motion for rehearing is overruled.
Motion overruled.