56 Kan. 97 | Kan. | 1895
The opinion of the court was delivered by
: I. The respective parties claim title under tax deeds. The alleged title of the plaintiffs below, who are defendants in error, was based upon the same tax deed as that in the case of Noble v. Douglass, just decided; and the plaintiffs in error, who were defendants below, relied upon a compromise tax deed, in all substantial respects the same as that set up by the plaintiffs in error in the former case, and the evidence was the same in each case, except that affecting the bar of the statute of limitations. The compromise tax deed was dated and recorded March 6, 1880. On March 11, 1884, the defendants in error commenced their action to quiet the title to the northeast i, section 9, township 10, range 37, alleging possession, and asking an accounting for the rents and profits from March, 1880, up to March 1, 1884. The defendants below answered that they were the owners of the land, and in possession. The plaintiffs, in their reply, denied such title and possession. Afterward, on October 13, 1885, by agreement of parties, it was ordered that amended pleadings be filed
II. Judgment was rendered, however, in this case in favor of the plaintiffs below against all the defendants jointly for $150 damages for use and occupation from the time of the change of the form'of action until the death of Hannah E. Hillyer, April 29, 1887. Her heirs were made parties. Of course they were not liable for damages for use and occupation during the life of their ancestor, and it does not appear that the action was revived against M. P. Hillyer, as administrator, although it was revived against the heirs of said Hannah E. Hillyer, including her husband. We therefore think that the judgment for damages cannot be sustained.
The judgment will be modified by striking out the allowance for damages. In all other respects it will be affirmed.