Page:North Dakota Reports (vol. 3).pdf/395

 Evidence Sustains Verdict.

Testimony as to the value of the use of the land in question is examined and considered. He/d, that the verdict as to the value of the use is justified by such evidence.

Interest on Damages.

The court instructed the jury that they might, at their option, allow or not allow interest on the annual value of the use of the land while it was wrongfully occupied by the defendant. Held, that such instruction was proper.

Irrelevant Testimony—Harmless Error.

Against objection, one of plaintiffs’ witnesses was allowed to testify as to certain matters which were foreign to the issues in the case. Held, that the testimony was improperly admitted, but that it was not prejudicial to the defendant, and hence a new trial will not be granted on account of such error.

Void Tax Deed Will Not Start Statute of Limitations.

A tax deed, void on its face, cannot operate to set the statute of limitations in motion. Accordingly, Ae/d, (construing Comp. Laws, § 1640,) that this action is not barred on account of the fact that it was not commenced until more than three years had elapsed after-the void tax deed was recorded.

Appeal from District Court, Traill County; McConnell, J.

Action by Antonia Hegar and Micke Schmitz against John DeGroat in ejectment and for damages for the use and occupation, Plaintiff recovered judgment for possession and $3745 damages and for costs, and defendant appeals.

Modified.

Selby & Ingwaldson, (M. A. Hildreth of Counsel) for appellant.

J. E. Robinson, for respondent.

J. This action is brought to recover the possession of a certain quarter section of land in Traill County, with damages for withholding the same, and for the costs of recovering possession, It is conceded that in the month of April, 1887, the plaintiff Schmitz, who then resided upon the land with his family, was the fee simple owner thereof, unless De Groat, the defendant, was such owner by virtue of a tax deed executed and delivered by the county treasurer of Traill, and upon which the defendant bases all his rights to the land. It appears that DeGroat, relying upon his tax title to recover possession, instituted an action in a