On Rehearing. Appellants and those appellees who are the heirs of John and Jesse Blackwell have filed motions for rehearing.
Appellants assert that in the state of the pleadings and evidence and our rulings the trial court should have given a peremptory instruction in their favor wherefore this court should reverse and render in their favor rather than remanding for retrial.
It is evident from the record that the case in behalf of appellees has not been fully developed. Justice will be better subserved by remanding the cause rather than rendering. Under such circumstances, the case should be remanded for retrial. See Associated Oil Co. v. Hart (Tex.Com.App.) 277 S.W. 1043, and other cases cited in 3 Tex.Jur. p. 1232, notes 5 and 6.
Appellants also complain of the latter portion of the concurring opinion of the writer where it was stated the parties are tenants in common. It was not intended to hold that appellees had shown them-selves to be tenants in common with appellants as claimed. In a preceding portion of the opinion it had been held appellees failed to connect themselves with the common source as alleged by them.
What was meant is, that if appellees' contention is correct and they are entitled to recover the interest in the land sued for, this would make them tenants in common with appellants.
This disposes of appellants' motion and we pass to the motion of appellees.
This suit was originally filed by appellants on May 28, 1931. Appellees filed their cross-action to recover the land April 14, 1933.
Appellants' eleventh proposition reads: "The undisputed evidence showing that appellant W. P. Moore had had exclusive and adverse possession of the land in question from May, 1908, up to the time of the filing of the cross-action by appellees herein in April, 1933, it was error for the Court to fix the termination of the period of limitation as of May 28, 1931, instead of April 14, 1933."
Upon the authority of Gibbs v. Lester (Tex.Com.App.) 41 S.W.2d 28,80 A. L. R. 431, this proposition was sustained without discussion. Appellees assert the ruling is contrary to the holdings in Taylor v. W. C. Belcher L. M. Co. (Tex.Civ.App.) 265 S.W. 403, Wallace v. Neumann (Tex.Civ.App.) 74 S.W.2d 283, and Zachry v. Moody (Tex.Civ.App.) 59 S.W.2d 846.
We will not attempt to harmonize the rulings. We are of the opinion the ruling in Gibbs v. Lester is correct and supports the view that the limitation period was not interrupted until the cross-action was filed on April 14, 1933.
Appellees also complain of the ruling upon the right of appellants to contribution for the cost of drilling wells upon the land. It is true there were no pleadings by appellants which support the judgment in their favor in that connection, but the point was raised by appellees' cross-assignments. No doubt the issue will arise upon retrial under proper pleadings and it was therefore proper to rule upon the issue for the guidance of the court upon retrial.
There is no occasion to further discuss other questions presented in appellees' motion. Some of them are founded upon theories not in harmony with settled rules of pleading and practice in this state governing actions to recover land.