
    Cephas Simmons, plaintiff in error, v. Miranda Minick, defendant in error.
    Ejectment: evidence. In a trial in ej ectment the plaintiff introduced record evidence oí a tax deed from the county treasurer to one W. for the premises in controversy, and a chain of conveyances from W. to the plaintiff, and also proved actual possession for six years of all the premises conveyed, except a triangular ' strip, 160 rods in length hy ten feet in width at one end and running to a point at the other, which strip adj oined the land of and was in the possession of the defendant, who produced no evidence of title. Held, That the plaintiff was entitled to recover.
    Error to the district court for Richardson county. Tried below before Weaver, J.
    
      Schoenheit é Thovias, for plaintiff in error.
    
      Ishamlieavis and Frank Martin, for defendant in error.
   Maxwell, J.

This is an action of ejectment. The plaintiff alleges in his petition that he is the owner and entitled to the immediate possession of the east one-half of the southwest one-fourth of section 32, town 2 north, range 16 east,, and that ever since July, 1878, the defendant has unlawfully kept him out of the possession “of a triangular strip on the east side of said land measuring one hundred and sixty rods, on the south side thereof ten feet, and bounded on the west by a line drawn from the n. e. corner of the lands first above described to a point ten feet west of the s. e. corner of plaintiff’s land first herein described.” The answer is a general denial. On the trial of the cause the attorneys for the plaintiff offered in evidence the record of deeds of Biehardson county, for the purpose of showing a tax deed, dated December 4th, 1864, from David B. Holt, treasurer of Biehardson county, to John G. White, for the lands in controversy, as the foundation of the plaintiff’s title. Objections were made to the introduction of this record and deed, which are not now before the court and will not be considered. The record and deed were admittéd in evidence. The plaintiff then introduced in evidence the record of a deed from White to the plaintiff. He then introduced evidence tending to show that he was in actual possession of all the land above described, except the strip in controversy, and also evidence that in the year 1875 he had broken up and put in cultivation a considerable portion of said land, and-that he had fenced and otherwise improved it. It appears from the record that the quarter section of land directly east of that claimed by the plaintiff belongs to the defendant; that a former owner of that tract set out a hedge about 160 rods in length on what was supposed to be the line between the land of the plaintiff and defendant, but that while the north end of the hedge was upon the line, the south end extended on the land above described and claimed by the plaintiff, about ten feet, and this is the strip in dispute. The plaintiff called the county surveyor and offered to prove that the hedge in question was upon the plaintiff’s land, but the evidence Was excluded. The plaintiff then offered to prove that the hedge in question was set out by a former owner of the land belonging to the defendant, who by mistake set. tbe hedge across the line, etc. This was also excluded. There were other offers to which it is unnecessary to refer. The defendant offered no evidence. The jury returned a verdict for the defendant, upon which judgment was rendered dismissing the action.

The question to be determined is, was tbe plaintiff entitled to recover upon the evidence before tho jury ? We think he was entitled to verdict. He showed record evidence of a tax deed from tlis treasurer of Richardson county to White, and a continuous chain of title from White to the plaintiff, while the defendant showed no title' whatever. Objection is made to tbe form of the deeds, but that question is not before tlie court. The case is. here on error, and only the errors assigned can be considered. The deeds were admitted in evidence, and where, no complaint is made to the admission the presumption is that none exists. It may be doubtful, however, whether the defendant can insist upon irregularities in the plaintiff’s title. She does not claim to be the owner of the land or entitled to the possession, and, so far as this record discloses, is a mere intruder. See Blackwell on Tax Titles, 73, note 1. The judgment of the district court is reversed, and the cause remanded for further proceedings..

Reversed and Remanded.  