delivered the opinion of the court:

In February, 1873, Stephen Johnson conveyed an undivided half interest in the lands sued for to his sons, H. E. and S. A. Johnson. This conveyance vested in the grantees a half interest in the land, if the grantor had such interest, no matter whence obtained. It was operative on any half interest he had, whether derived from Wilburn or another.

There was no particularization in this conveyance of a half interest with respect to the source of its derivation, and it did not leave in the grantor a particular half 'interest distinguishable by its source.

The conveyance to Helm was of the particular half interest which the grantor had obtained from Wilburn, and vested in him by force of its terms that interest, if it was not affected by the former conveyance of a half interest in February, 1873.

If Stephen Johnson had the entire interest, the former conveyance left a half interest in him, and it passed to Helm by the conveyance to him, notwithstanding the particular designation of the source of title descriptive of the interest conveyed.

Stephen Johnson, in 1859, got a deed to a half interest in this land from one Ferguson, and in 1860 a deed conveying a half interest in it from Wilburn. (The paper in the record which is spoken of by counsel as the deed from Wilburn to Stephen Johnson has not the name of Johnson in it, but is to Stephen, and, for all the record shows, may have been to some other Stephen but this may be a clerical omission.) Whether these conveyances relate to the same or different half interests is not shown, but it does not appear that Johnson claimed to be owner of the entire interest in the land, and the evidence is suggestive that the two sources of title embraced the halves which made the whole interest.

Johnson, claiming to be owner, had possession of some part of the land, and in 1871 leased some of it to one Mitchell, who occupied for five years, and afterward leased it from S. A. Johnson and Outlaw, The deed from Stephen Johnson to S. A. Johnson and H. E. Johnson was not recorded until after the conveyance to Helm, but it is indisputable that the land was at the time Helm bought occupied by a tenant of S. 'A. Johnson and Outlaw. It *177is true that S. A. Johnson was spoken to by Helm, and agreed to collect rent for Helm, on the Wilburn half interest, and tried and failed because of the refusal of the tenant to pay, and reported this to Helm, but in this, there is nothing inconsistent with ownership by S. A. Johnson of a half interest in the land different from the Wilburn half interest, and nothing to preclude him from claim- . ing such interest, and collecting rent fox it. If he had an undivided half interest in the land different from that conveyed to Helm, his recognition of Helm’s claim and undertaking to represent him in collecting rent on Helm’s interest did not prejudice his rights. It is apparent that Stephen Johnson claimed to have owned the entire interest.

He conveyed an undivided half generally to his two sons in 1873, and a particular half interest to Helm in 1881. S. A. Johnson was agent of his father, and knew that he claimed to have owned the entire interest in the land. He knew, of course, that his father had conveyed an undivided half interest to himself and brother, and that he was in possession of this half interest by the tenant Smith and in the receipt of rent for his half interest.

There was another half interest in dispute between Stephen Johnson and Outlaw, both of whom claimed an undivided half interest under Wilburn, while Johnson claimed to have derived another half interest from another source.

Interpreting the acts of S. A. Johnson by the light of these facts, it is manifest that his agreement with Helm to collect rent for the Wilburn half interest conveyed to him had reference to these conditions, and was nothing more than the assumption of an agency for Helm as to the particular interest specified, and when the tenant refused to pay rent to him for Helm, and he reported the matter to Helm, the relation between him and Helm ended.

There was nothing in this to estop S. A. Johnson to claim his own half interest which his father had conveyed in 1873, if that was a different half interest from that conveyed to Helm, and, as stated before, the evidence is strongly suggestive that the two half interests in the land had been acquired from different sources by Stephen Johnson, who conveyed one, generally, to his two sons, and the other by particular designation to Helm. S. A. Jo-hnson did nothing to deceive or mislead Helm. He was under no obligation to disclose to Helm his title to an undivided half interest generally in the land. He had, as he assumed and as is supposed, *178a perfect title to a half interest in the land, and had possession of it by his tenant. He made no claim to the particular half interest conveyed to Helm. That was quite distinct from what had been conveyed to him. He and Helm had claims to different interests. He was in the enjoyment of his interest and was willing to act as agent for Helm to collect rent accruing on his interest, and he made an effort to do1 this, and failed, and reported his failure to Helm. That terminated the relation between them. Helm instituted this action against Smith, the tenant. S. A. Johnson applied to be admitted to defend as landlord, and entered the plea of not guilty. This put Helm to the proof of his right to the possession of the undivided half interest sued for. In order to recover it was necessary for him to show a title good against the world, or that the defendant was estopped to question his title, which as between them must be taken to be good. There was no deraignment of title such as to entitle Helm to recover on the strength of his own title, and there is no estoppel shown against S. A. Johnson.

The parties do not claim the same interest and, therefore, cannot be said to claim title from a common source.

They claim distinct titles, and although from the same person, he is not the common source of title in the sense which gives rise to the well-known rule on that subject.

There is nothing shown to preclude Johnson from standing on the defensive and compelling Helm to show his right to the undivided half interest he claimed.

It seems to be true that prior to the suit there was no antagonism between Helm and Johnson as to the Wilburn half interest, and if Johnson desired to defend only as to his own half interest, he should have proceeded under section 2506 of the Code, and thereby the proper issue would have been presented between them, and upon the presentation made by the record Johnson would have succeeded in the case. But Johnson chose to defend as to the whole and although the reason for this course is not apparent to us, we think he had the right to defend as he did and put in issue Helm’s claim and it was not maintained.

The judgment should have been for the defendant below.

Reversed and remanded, February 8, 1886.