The points stressed in the petition for re-hearing were all carefully considered by this Court before handing down its opinion and judgment on this appeal, and upon further consideration we find no ground for changing our conclusions as heretofore expressed. It is claimed that notice was given to Dickenson and his attorney in the conversations had between the Smiths and Cummings and the complainant in the attorney's office on January 1st, 1920. The references in such conference to the timber in question were not definite or specific. They referred to "the timber on the Christmas place," part of which place was in Alabama and the larger part in Jackson County, Florida. These discussions were brought about by Dickenson's discovery of a reservation in the deed of the timber on the Alabama portion of the Christmas place, and as the discussions *Page 762 related to "that timber," and other such general references, such statement might readily have been referred, as they evidently were by the complainant, to the Alabama timber, as to which he had made complaint and demanded some adjustment. After a careful consideration of the testimony, this Court cannot say that the court below was clearly erroneous in its conclusion that these discussions were not sufficient to show notice to the complainant, or to the attorney who was acting as attorney for both parties, of the previous transfer by the grantors of the timber on the Florida lands covered by the unrecorded deed or lease to Reynolds, Trustee. All of the statements made might reasonably have been construed to have applied to the timber covered by the reservation in the deed, that is, the timber on the Alabama portion of the place. The testimony of the attorney was entirely too vague and indefinite to put the lower court in error. That notice was not brought home to complainant Dickenson was practically admitted by the averments of the supplemental answer filed by the defendants, which answer was stricken on motion of the complainant. In this answer, which was sworn to, it is said: "That since the filing of the original answer herein and during the taking of testimony, it has appeared that the complainant, E. T. C. Dickenson, obtained possession and manual delivery of the deed from Smith and Cummings described in the bill of complaint under a mistake of facts. The mistake of facts being as follows: That thecomplainant received and accepted the said deed and the sum ofFifteen Hundred Dollars from Smith Cummings under the beliefthat the said sum of Fifteen Hundred Dollars was in payment forthe timber reserved in said deed on the tract of land locatedin Houston County, Alabama." (Italics ours).
The attack made by the supplemental answer on the validity of the deed was properly stricken, as it was one *Page 763 which could not be made in this case, if available at all, would be available to the grantors in the deed and not to third persons, and the grantors, Smith and Cummings, were not parties to this cause. Nor was this attack on the deed by reason of the alleged misunderstanding accompanied by any offer to do equity.
No sufficient reason for allowing a rehearing is made to appear.
Rehearing denied.
ELLIS, C. J., AND WHITFIELD, TERRELL, STRUM, BROWN AND BUFORD, J. J., concur.
