
    Schmidt v. Zahensdorf et al.
    
    Former adjudication: estoppel: pleading. If certain claims (as for rents and profits in an action of right) are put in issue by the pleadings, and not withdrawn nor dismissed, the defendant will be entitled to judicial immunity from another action therefor, although the original judgment recites that no evidence was introduced in respect thereto, and that the same were, therefore, not considered by the court.
    
      Appeal from Scott District Court.
    
    Friday, January 27.
    Action for the recovery of real property. Trial to the court and judgment for plaintiff, and defendants appeal.
    
      
      JET. It. & E. Olcmssen and Bills <& Block for the appellants.
    
      Damson & True for the appellees.
   Cole, Ch. J.

The plaintiff claims to own the south half of the south-west quarter of section 5, township 79, range 2, east; and the defendants admit his ownership. The defendants claim to own the south-west quarter of the south-east quarter of the same section, and the plaintiff admits them ownership. The controversy is as to the true location of the line between them — the quarter section line — running north and south; the defendants claiming, however, that if they are in possession of any land west of the true line, that they have been so for more than ten years and their title is perfected by the statute of limitation. The quantity of land in controversy is about seven acres.

The plaintiff claims that the quarter section line running north and south through section five continues on a straight line through the south half of the section, dividing it about equally, while the defendants claim that it deflects to the west, leaving a surplus of acres in their quarter, and a deficit in plaintiff’s. Erom all the testimony we are satisfied, as was the district court, that the true line was the direct one, dividing the section nearly equal.

As to the question of adverse possession, it may safely be said that there was some evidence tending to show that the defendants’ grantor took possession of the land in dispute without any claim of title in himself, but expressly recognizing the title to be in another. Claggett v. Conlee, 16 Iowa, 487; Jones v. Hockman, 12 id. 101; Hamilton v. Wright, ante, 479. The court having found against the defendants’ claim of adverse possession, upon this evidence, such finding, like the verdict of a jury, becomes, in such case, conclusive upon us. It is, at most, a case of conflict of testimony upon this point.

The plaintiff, in his petition, averred the facts constituting his right to, and made a claim against defendants for, use and occupation of the land in controversy, to the extent of $300. This claim was denied by the defendants. With the issue thus made, the cause was submitted to the court. The judgment entry recites that, “ there being no evidence offered by either party as to the value of the rents and profits, the same is not considered, and no judgment hereby rendered touching the same.” The action for the rents and profits was not dismissed, nor the claim therefor withdrawn. The defendants having been thus once compelled to litigate the question and prepare for their defense, they have a right to judicial immunity from being again required to answer the same claim. The judgment will be so modified as to make the same final against plaintiff’s claim for .the rents and profits. The appellee will pay costs of this .appeal.

Modified and affirmed.  