
    No. 28,584.
    W. G. Black, Appellant, v. E. L. Black, Appellee.
    
    (274 Pac. 1110.)
    Opinion filed March 9, 1929.
    
      C. L. Foster, of Sedgwick, Charles B. Hudson and Clyde M. Hudson, both of Wichita, for the appellant.
    
      William Keith and Lester Wilkinson, both of Wichita, for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The action was one for possession of land forcibly detained. Plaintiff’s demurrer to defendant’s evidence and motion for an instructed verdict were denied, and he appeals.

In the case of Black v. Black, 123 Kan. 608, 256 Pac. 995, the present defendant pleaded ownership of the land in controversy, and right of possession by virtue of ownership. Judgment was rendered for the present defendant, and the present plaintiff appealed. This court reversed the judgment of the district court, and ordered judgment in favor of the present plaintiff. After this determination of the controversy, defendant remained in possession. After serving a three-day notice to vacate, plaintiff sued for possession in the city court of Wichita. In the course of the trial in the district court, the court said:

“I will say that I think the question of ownership of this property has been determined in that case in the supreme court, both legal and equitable, and I do not think you are entitled to set up legal or equitable ownership in this case. The supreme court has decided that. I may not agree with the supreme court, but I think they decided it, that you did not have legal or equitable title to this land which entitled you to possession.”

The court, however, retried the issues in the former case, with the result that defendant is still in possession, by virtue of his original claim of ownership and right to' possession. Plaintiff’s demurrer to defendant’s evidence and plaintiff’s motion for an instructed verdict in plaintiff’s favor should have been sustained.

The cause is again remanded to the district court with direction to enter judgment for plaintiff.  