
    [No. 5238.
    Decided April 4, 1905.]
    P. F. Kline et al., Respondents, v. Henry W. Stein et al., as Executors etc., Appellants.
      
    
    Pleading—Amendment—Reply Stating New Pacts—Departure—Issue oe Adverse Possession. In an action to recover the possession of land, where defendants pleaded the title of one W, to which the plaintiff filed a reply showing a purchase from W in 1886 and title by more than ten years’ adverse possession thereafter, an amended reply, setting up a homestead entry by the plaintiffs in 1884 and title by adverse possession thereafter, is not objectionable as introducing a new issue, although new facts are stated, since the issue of adverse possession was not changed by the amendment.
    Appeal from a judgment of the superior court for Kit-sap county, Denney, J., entered March 2, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action of ejectment.
    Affirmed.
    
      Chandes E. Patterson and Samuel S. Carlisle, for appellants.
    
      J. B. Yalcen an(l Thos. Carroll, for respondents.
    
      
      Reported in 80 Pac. 278.
    
   Per Curiam.

This is an. action to recover possession of real estate. The cause was once before here on appeal. See, 30 Wash. 189, 70 Pac. 235. Por a statement of the case, reference is made to the former opinion. The verdict at the first trial was for the plaintiffs, and, on appeal, this court said, in effect, that the evidence showing adverse possession sustained the verdict; but, inasmuch as one of the plaintiffs on cross-examination had been led to testify as to a transaction with a person since deceased, the court, through f’ear that the verdict might have been influenced thereby, and as a precautionary course, reversed the judgment and granted a new trial. Prior to the second trial, the pleadings were amended in some particulars, but the plaintiffs’ claim still rested upon adverse possession. The second trial, also, resulted in a verdict for the plaintiffs, upon which judgment was entered, and the defendants have again appealed.

It is urged that the court erred in admitting evidence under what is claimed to be a different issue from that raised at the former trial. The amended reply alleged, that respondents settled upon the .land in 1884, under a homestead claim; that they caused the land to be surveyed, the survey including the lands in dispute here, and entered into possession under their homestead claim in 1884; that they cleared and fenced the land, and have ever since been in the actual, open, and notorious possession, until April, 1900, when appellants forcibly took possession during the absence of respondents. The issue tendered by the amended reply was still that of adverse possession. It is true, additional facts were alleged, but they made the same issue, and the evidence concerning the settlement of the respondents under their homestead claim Was in support of the issue. Some complaint is made of the instructions, but we think the case was fairly submitted within the issues. We also think the court admitted ail the offered evidence which was material and pertinent to the issue of adverse possession. The testimony in support of the respective contentions was before the jury, and a verdict was again returned for respondents.

We find no error, and the judgment is affirmed.  