¶1 ON MOTION EOE EEHEAEING.
¶2 It is contended in appellant’s motion that this court erred in not holding that the court below erred in refusing to allow her to take a nonsuit, because it appears that appellees were in possession of the land, and that it further appears that they introduced no evidence to support their plea in' reconvention.
¶3 After appellees had pleaded in reconvention, they had the right to have the matters put in issue by their pleadings determined, and have their title to the premises quieted against the claim of appellant, notwithstanding they were in possession of the property, and could not be deprived of such right by appellant’s taking a nonsuit.
¶4 It does not appear from the statement of facts by whom the evidence was introduced, but it does appear therefrom that both parties claimed the land in controversy through John D. Groesbeck, as a common source, and that the appellees are his sole heirs. In the absence of evidence showing a superior title under the common- source in appellant, this was sufficient to entitle the appellees to recover on their plea in reconvention. And if it was essential they should introduce it in order to avail themselves of it, we would presume, in the absence of proof to the contrary, that it was done by them.
¶5 There is no merit in appellant’s motion, and it is overruled.
¶6 Motion overruled.
¶7 Writ of error refused by Supreme Court.