cause, or bad faith on the plaintiff's part, cannot recover on the plaintiff's bond for damages for loss of time, attorney's fees and expenses incurred in making his defense, the judgment extinguishing further liability.24

Where judgment is rendered for the defendant for damages and a return of the property, but its value is not determined, the defendant may sue on the bond for the value of the property taken.25

§ 1754. Redelivery bonds

The surety on a redelivery bond, as well as sureties on a supersedeas bond and bonds for stay of execution given on appeal, judgment having gone against the defendant, are all liable to the plaintiff in replevin,26 and they are estopped to claim that the defendant did not have the property in his possession, and are bound by the judgment in the replevin action.27

The sureties on a redelivery bond in a justice's court are not released by the defendant taking an appeal to the district court, and filing an appeal bond.28

24 Lake v. Hargis, 109 P. 670, 82 Kan. 711, 30 L. R. A. (N. S.) 366. In an action on a replevin bond, where plaintiff dismissed his suit after return of the property, attorney's fees and expenses incurred in preparing the defense to the replevin suit cannot be recovered. Edwards v. Bricker, 71 P. 587, 66 Kan. 241.

25 Green v. Rehbine, 44 Okl. 96, 144 P. 182.

26 Southwestern Surety Ins. Co. v. King (Okl.) 172 P. 74, L. R. A. 1918D, 1188.

27 First State Bank v. Martin, 106 P. 1056, 81 Kan. 794. 28 Swartz v. English, 44 P. 1004, 4 Kan. App. 509.

In an action to recover from the sureties on a redelivery bond given in an action of replevin before a justice of the peace, and taken on an appeal to the district court, the plaintiff must prove a judgment of the district court, and a breach of the conditions of the redelivery bond, before he can recover upon said bond. Swartz v. English, 44 P. 1004, 4 Kan. App. 509.

Plaintiff in replevin excepted to the sureties on a redelivery bond, which the sheriff had accepted and approved. The sureties justified and the bond was approved. Afterwards defendant notified the sheriff that he did not desire to retake the property, and demanded that the bond be withdrawn. Judgment was rendered for plaintiff in replevin. Held, that the liability of the sureties was fixed when the bond was approved by the sheriff, and the fact that plaintiff excepted to the surety, and that defendant demanded that the bond be withdrawn, did not relieve them from liability. First State Bank v. Martin, 106 P. 1056, 81 Kan. 794.

1755. Discharge of sureties

An action against sureties on a redelivery bond may be maintained without an execution on the judgment or a demand for the return of the property.2

29

In an action on an undertaking in replevin given to a sheriff in his individual name, but put in suit by the real parties in interest, the sheriff has no authority by a stipulation with a surety, to dismiss, as to him, without the consent of the beneficiaries.30

A redelivery bond in the ordinary form, by two defendants in replevin, with no other signer, binds each to perform any judgment against either or both of them.3

31

In an action to enforce a redelivery bond it is unnecessary that the petition contain an allegation that an affidavit was filed in the replevin action prior to the issuance of the order of delivery. It is sufficient that the rendition of the judgment be alleged.32

Where a bank was party plaintiff in a replevin action, and no summons was issued until the day following that on which it obtained possession of the property under the writ, and it then dismissed the action without prejudice, it was estopped, in an action on the replevin bond, to assert that there was no action pending when the property was taken.33

An offer to return all the property in question to the plaintiff is sufficient to constitute a legal tender, and is a defense to a suit on the bond.34

29 First State Bank v. Martin, 106 P. 1056, 81 Kan. 794.

30 Norton v. Lawrence, 18 P. 526, 39 Kan. 458,

31 Kendall v. Black, 160 P. 1015, 99 Kan. 101,

32 O'Loughlin v. Carr, 60 P. 478, 9 Kan. App. 818.

33 Central Nat. Bank v. Brecheisen, 70 P. 895, 65 Kan. 807.

34 Kansas Nat. Drill & Mfg. Co. v. Redd, 154 P. 250, 97 Kan. 1. Evidence held to sustain a finding that the sheriff, holding property under a redelivery bond, had made a sufficient tender of a return of the property. Id. In an action in which a redelivery bond was given for unwieldy well-drilling property seized under attachment, evidence held to show a sufficient tender of return of the property, where the sheriff's representative said to plaintiff's agent, "If they are your machines, take them." Id. That the 'representative of the sheriff and the attaching creditor, in making a tender to the mortgagor of the property seized by the sheriff under attachment and held under a redelivery bond given in replevin brought by the mortgagor, stated that he would pay such damages as the judge and jury might determine did not make the tender insufficient. Id.

1756. Extent of liability

Where the plaintiff within a reasonable time makes a good faith tender of a substantial part of the property taken in replevin, it is the duty of the defendant to accept the same and recoup on plaintiff's bond for any damages.35

35 Leeper, Graves & Co. v. First Nat. Bank, 110 P. 655, 26 Okl. 707, 29 L. R. A. (N. S.) 747, Ann. Cas. 1912B, 302.

Where defendant was surety on a redelivery bond in replevin, which recited that the obligors bound themselves that the defendant should deliver to the plaintiff the property delivered to him if such delivery be adjudged when the property, or any part of it, was returned, the obligation of the sureties should be reduced to the extent of the property returned at the value designated in the bond. Larabee v. Cook, 61 P. 815, 8 Kan. App. 776.

In an action by a plaintiff in replevin on a redelivery bond given by de fendant and sureties, it appeared that while the action of replevin was pending the defendant therein had delivered the property in controversy to a receiver appointed by the court on application by a creditor of the owner, and that the property was sold by the receiver, and after the trial of the replevin action the owner applied to the court for the proceeds of such sale and received a portion thereof; the remainder being retained to abide the result of the action in which the receiver was appointed. Held that such facts constitute a defense to the action of the redelivery bond for the amount for which the property was sold at the receiver's sale. Boyd v. Huffaker, 18 P. 508, 39 Kan. 525.

(1644)

Sections

1757-1759.

CHAPTER XXIV

EJECTMENT

Article I.-Nature and right of action.

1760-1766. Article II.-Trial, recovery, and defenses.
1767-1769. Article III.-Damages.

It is the right of possession that is tried in ejectment, and this right is the title to be adjudged.1

As between two parties, neither of whom has a right to possession of real estate of which one is in possession, the other cannot oust him therefrom.2

§ 1758. Form of action

An action to recover the possession of a tract of land, the real gravamen of which is to set aside a recorded deed which purports to have been executed by the plaintiff for the reason that such deed was fraudulently obtained by the grantee, is in form an action in ejectment, but, in substance, is an action for relief on the ground of fraud.

§ 1759. Plaintiff must have right at commencement of action Plaintiff must have a right to the possession of the land at the time of the commencement of the action.*

1 McElroy v. Moose, 51 Okl. 173, 151 P. 857.

2 Robertson v. Howard, 112 P. 162, 83 Kan. 453.

3 New v. Smith, 119 P. 380, 86 Kan. 1.

4 Hurst v. Sawyer, 37 P. 817, 2 Okl. 470.

Where defendant denies plaintiff's right of possession, the latter to recover must prove such right at the commencement of the action and that defendant unlawfully keeps him out of possession."

1763. Recovery where right ceases during action.
1764. Defenses.

§ 1760. Title to sustain action

Plaintiff must recover on the strength of his own title, and not upon the weakness of that of his adversary."

Ejectment is not maintainable by one who has conveyed his

title.'

A person holding the duplicate final receipt of the receiver of the United States land office for land taken under the homestead laws of the United States can maintain ejectment for the possession of the land therein described.8

The action of ejectment lies to recover lands under lease."

5 McElroy v. Moose, 51 Okl. 173, 151 P. 857.

6 Lynch v. Calkins, 75 Okl. 137, 182 P. 225; Haseltine v. Nuss, 155 P. 55, 97 Kan. 228; Linam v. Beck, 51 Okl. 727, 152 P. 344; Aldridge v. Whitten, 56 Okl. 694, 156 P. 667; Reirdon v. Smith, 62 Okl. 48, 161 P. 798; Starr v. Thompson, 80 Okl. 223, 195 P. 758; Mullen v. Glass, 143 P. 679, 43 Okl, 549; Mitchell v. Humphrey, 129 P. 744, 36 Okl. 711; Shaffer v. Turner, 144 P. 366, 43 Okl. 744.

7 Starr v. Thompson, 80 Okl. 223, 195 P. 758. 8 McClung v. Penny, 70 P. 404, 12 Okl. 303.

Code Civ. Proc. § 411, which provides that "the usual duplicate receipt of the receiver of any land office is proof of the title equivalent to

*

a patent against all but the holder of an actual patent," does not authorize a recovery in ejectment on such duplicate receipt. Adams v. Couch, 26 P. 1009, 1 Okl. 17.

9 Hurst v. Sawyer, 37 P. 817, 2 Okl. 470; Long v. Bagwell, 38 Okl. 312, 133 P. 50.

An occupant of a town lot, before the legal title has passed from the gov