Page:North Dakota Reports (vol. 3).pdf/403

 therefore I direct a verdict in favor of the plaintiffs; but what the amount of the verdict will be is left to you, as you may find they are damaged. So the only question that you have for your consideration is, what have the plaintiffs been damaged by the defendant withholding this land from them?” The single issue for the jury to pass upon related to the plaintiff's damages, and it is certain that the obnoxious testimony could not, in view of the judge’s very careful charge on that feature of the case, have influenced the jury at all. The court laid down the measure of damages by reading the whole of section 4601; and the court also reiterated to the jury that the only element of damage was the value of the use of the land, with plaintiffs’ attorneys’ fees added, and expressly said to the jury: “You can allow nothing by way of punitive damages,—nothing by way of exemplary damages,— because, in this action, all the plaintiffs are entitled to is compensatory damages; nothing more or less than compensatory damages; what will compensate them for the injury sustained by the withholding of this land.” The jury was properly and fully instructed as to the measure of damages, except as to attorneys’ fees, and was especially cautioned against allowing anything by way of exemplary damages; and hence we are satisfied that the testimony, though improperly admitted, could not have been prejudicial to the defendant. The verdict, as it stands, has ample support in evidence which was entirely competent; nor is there, in our judgment, any good reason to suppose that another trial, if granted, would result in a verdict which would more nearly approximate to right and justice, or to a correct legal standard, than that already rendered, after excluding the attorney fee.

One other point remains to be considered. Defendant claims that the special statute of limitations requiring that actions brought to recover possession of lands sold for taxes shall be brought within three years after the recording of the tax deed applies to this action, citing Comp. Laws, § 1640. The action was not commenced until more than three years after the tax