
    Majestic Collieries Company, et al. v. Allen, et al.
    (Decided October 19, 1917.)
    Appeal from Pike Circuit Court.
    Ejectment — Outstanding Title as Defense-Common Source of Title. — Though plaintiffs and defendants both claim through a common source, pleading and proof of an outstanding superior patent with which defendants connect their title, will defeat a recovery by plaintiffs of that portion of the land covered by such superior patent.
    J. X MOORE and STRATTON & STEPHENSON for appellants.
    F. W. STOWERS and SAM C. STOWERS for appellees.
   Opinion of the Court by

William Rogers Clay, Commissioner

— Granting petition for rehearing and affirming on cross-appeal.

In our former opinion, 176 Ky. 249, we held that as plaintiffs and defendants claimed title through a common source, defendants could not defeat a recovery by plaintiffs by mere proof of a superior outstanding title without connecting their title therewith. In their petition for a rehearing, defendants have called our attention to the fact that they did plead ownership under the prior Lee and Prater survey, and not only was this allegation not denied by plaintiffs, but they specifically disclaimed title to any portion of the lands covered by that survey. That being true, defendants did connect their title with the Lee and Prater survey, and since plaintiffs were denied a recovery of the land so covered, it follows- that the judgment below was proper and should not have been reversed on the cross-appeal.

Wherefore, the petition for rehearing is granted and that portion of the opinion reversing the judgment on the cross-appeal is withdrawn and the judgment on the cross-appeal is affirmed.  