25 Kan. 227 | Kan. | 1881
The opinion of the court was delivered by
This case has been to this court before. (22 Kas. 704.) It is an action of forcible entry and detainer. On the first trial in the district court a demurrer to plaintiff’s evidence was sustained. This ruling was reversed by this court, and the case remanded for a new trial. On this trial plaintiff recovered judgment, and now the defendant alleges error. The facts are substantially as they appeared when the case was here before. Plaintiff, claiming to hold the original title, fenced the lot. Defendant, holding a tax deed, tore the fence down and took possession. Now the defendant sought to show that in fencing this lot, which at the time was vacant, plaintiff was simply scrambling for possession, so as to cast the burden of litigation on the defendant. He offered to show
Our practice is so simple and clear that there is no excuse for any such conduct as that of the defendant in this case. Scrambling for possession is not to be encouraged; and yet where possession is once taken, it should be respected. The remedies for that, if wrongful, are cheap and expeditious. Settle absolute rights first, and lesser ones will follow. This very case is an illustration. The parties in this case have paid more in the way of costs, twice over, than if a simple 'action in ejectment had been instituted. It has taken as much time, and no absolute and final rights are as yet determined. The plaintiff has recovered possession, but the title is undetermined. That remains to be settled in some subsequent action.
So far as testimony was sought as to the extent of improvements before the commencement of this suit, it is immaterial. What defendant may' have done after taking forcible posses