
    W. R. Fletcher, Appellant, v. J. E. Moriarty, Appellee.
    
   On Re-Hearing.

Whitfield, C. J.

— A petition for rehearing suggests that the court overlooked the contention that the lease conveyed only timber then on the lands and that the conclusion of the court that the patent referred to in the opinion may have been issued by reason of payments or otherwise and not by actual occupancy, is not warranted by the record.

The lease in this case contemplated the working for a period of three years each of different portions of the lands during succeeding years, and the ultimate termination of the lease was not provided for or shown.

The face of the patent warrants a conclusion that it may have been issued under section 8 of the Act of Congress approved May 20, 1862. Even of the patent to a portion of the lands included in the turpentine lease was issued upon a right acquired by occupancy and completed 'after the execution of the lease, the complainant will not be permitted in a court of equity to repudiate a lease with full warranty made by him, on the ground that a patent had not been issued to a portion of the lands when the lease was made, where the leassee seeks within his rights to enforce the lease only after the lessor had acquired complete title to the lands from the government.

Rehearing denied.

Shackleford, and Cockrell, J. J.', concur.

Taylor, Hocker and Parkhill, J. J., concur in the opinion.  