provisions of this article, cause an entry to be made upon the journal of such request, and shall at once set a day for the trial of the right of such occupying claimant to compensation for all lasting, valuable and permanent improvements made by such occupying claimant, or those under whom he claims upon the premises prior to the issuing of summons in the cause, and at such trial each party shall produce his evidence relating to such improvements, and the court shall make specific findings of fact on all matters relating to the right of such occupying claimant to compensation for such improvements, and shall find specifically whether such improvements were made in good faith and under color of title, and whether the occupying claimant is entitled to the benefit of this article, which findings shall be entered of length upon the journal, and if the court shall find that the occupying claimant is entitled to compensation for such improvements, it shall at once appoint three disinterested freeholders of the county who shall have the qualifications of jurors in the cause, to assess the actual value of the improvements on the date of the assessment, of which appointment and the date of assessment all parties to the action shall have five days' actual notice; also the rental value of the premises from the date of the summons to the date of the appraisement; also the actual value of the land without the improvements; which assessments shall be made upon actual view of the premises, and said appraisers shall reduce their appraisement to writing and return the same to the court or clerk thereof forthwith; and upon such report the court shall render judgment in accordance therewith: Provided, that if either party shall at any time before the return and filing of the report of the appraisers, demand a trial by jury, the court shall at once discharge the appraisers and impanel a jury to find the facts and make the assessment of value which the appraisers were to make, which trial shall be had in open court and upon proofs to be adduced by the parties, and the trial shall be conducted in all respects as other jury trials, and the court may, in its dis cretion, send the jury to take an actual view of the premises, and the said jury shall return their findings of value into court, and the court shall then enter judgment in accordance with such findings: Provided, that if either party deem himself aggrieved by such assessment of values or findings of the court, he may, upon motion and proper showing, obtain a new trial as in other cases under the code of civil procedure of this State.14 Sec. 1172. Judgment for value of improvements Execution thereof. If the jurors shall report a sum in favor of the plaintiff or plaintiffs in said action, for the recovery of real property on the assessment and valuation of the valuable and lasting improvements, and the assessment of damages for waste, and the net annual value of the rents and profits, the court shall render a judgment therefor without pleadings, and issue execution thereon as in other cases; or if no excess be reported in favor of said plaintiff or plaintiffs, then, and in either case, the said plaintiff or plaintiffs shall be thereby barred from having or maintaining any action for mesne profits.15 Sec. 1173. Value between rents and improvements before writ of ouster issue-Appeal. If the appraisers or jury appointed or impaneled as hereinbefore provided under the provisions of this act, shall find the value of the improvement is greater than the value of the rents and damages and waste, then the court shall enter 14 Snyder, 6,130; Wilson, 4,796. For questions of practice under the Occupying Claimant's Law of the State of Kansas, see Bauder v. Bryan, 20 Kan. 369. As to notice in writing to adverse party, see Lemert v. Barnes, 18 Kan. 9, as to the allegations of the pleadings. The finding of the jury will not be disturbed on ex parte affidavits. North v. Moore, 8 Kan. 143. The rule of estoppel. Bradley v. Rogers, 33 Kan. 120. Waivers of errors in the action. Price v. Allen, 39 Kan. 476, 18 Pac. 609. 15 Snyder, 6,131; Wilson, 4,504; Kansas, 4,708 (1889). judgment that the successful claimant pay to the clerk of the court for the use of the occupying claimant the full amount of the excess of the value of the improvements over the value of the rents, damages and waste before the writ of ouster shall issue: Provided, if either party shall deem himself aggrieved by the judgment and shall desire to contest either or both the findings of the court or the appraisement of the appraisers, or the jury herein provided for, by appeals or otherwise, to a higher court, and the successful claimant shall execute an undertaking to the occupying claimant in double the amount of the excess in value as found by the appraisers or the jury, with good and sufficient surety to be approved by the clerk of the court, conditioned that he will pay such excess with interest from the date of the judgment, if the judgment be affirmed by the appellate court, then the writ of ouster shall, at the request of the successful claimant, issue at once.16 Sec. 1174. Writ of possession, when-Issued in favor of successful claimant. If the successful claimant, his heirs, or the guardians of said heirs, they being minors, shall elect to receive the value without improvements so as aforesaid assessed, to be paid by the occupying claimant within such reasonable time as the court may allow, and shall tender a general warranty deed of the land in question, conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money to the successful claimant, his heirs or their guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful claimant, his heirs or their guardians.17 16 Snyder, 6,132; Wilson, 4,798. 17 Snyder, 6,133; Wilson, 4,799; Kansas, 5,097 (1901), identical; Price v. Allen, 39 Kan. 476, 18 Sec. 1175. Lands sold by executor, administrator or guardian-Sheriff or commissioner-Recorded-Plain tiff not entitled to possession, when. Whenever any land, sold by an executor, administrator, guardian, sheriff or commissioner of court, is afterwards recovered in the proper action by any person originally liable, or in whose hands the land would be liable to pay the demand or judgment for which, or for whose benefit the land was sold, or anyone claiming under such person, the plaintiff shall not be entitled to the possession of the land until he has refunded the purchase money with interest, deducting therefrom the value of the use, rents and profits, and injury done by waste and cultivation, to be assessed under the provisions of this chapter.18 Sec. 1175a. Special instance where improvement allowed under void tax title. M., after the execution to him of a void tax deed, in good faith went into the possession of the lots conveyed and erected thereon improvements to the value of about one thousand dollars. After taking possession of the lots, he borrowed from S. on his promissory note secured by mortgage on said premises, which money he expended in placing improvements on said lots. Afterward, and after the execution and recordation of said mortgage, M. removed from said premises and leased the same to H., who went into possession as the tenant of M. Afterward M. executed a warranty deed 18 Snyder, 6,134; Wilson, 4,800; Kansas, 5,100 (1900), identical. The Act of May 6, 1873, amendatory to Secs. 601 and 608, of Art. 25, Chap. 80, Gen. St., for the relief of occupying claimants, is constitutional and valid so far as providing that no writ or process for the eviction of a claimant, entitled thereunder to the valuation of his lasting and valuable improvements, shall be issued until the assessment of, and the value of the improvement is paid. In substance, it only requires that the value of the improvements shall be paid as а condition precedent to the entry into possession by the owner, and does not give the occupying claimant the option to keep the land. Claypool v. King, 21 Kan. 434. to said lots to H., who was and still is in possession. Upon a suit to foreclose the said mortgage, S., upon equitable grounds, was entitled to the benefit of the occupying claimant's act.1 19 Where, in a suit commenced on the twenty-third day of March, nineteen hundred and four, to cancel the deed to a homestead executed by plaintiff to defendant on the eighteenth day of February, eighteen ninety-seven, defendant died in possession, pending the submission and before the decision in this court, and where the mandate sent down was recalled, and, as again sent down, ordered, among other things, the deed set aside and plaintiff put into possession, but left open the question of the rights of occupying claimants; held, that defendant, if living, or his heirs, if dead, in quiet possession of the land from the date of said deed, should be permitted to come in and assert their rights under the statute.* Sec. 1175b. Improvements-Indian lands. Any person being a noncitizen in possession of lands, holding the possession thereof under a lease, or improvement contract with either of said nations or tribes, or any citizen thereof, executed prior to the first day of January, eighteen 19 Standifer v. Morris, 25 Okla. 802, 108 Pac. 413. The court in this action quoted with approval the following: "The adjustment of the rights of occupying claimants is a matter of equitable cognizance, and courts may, in addition to the relief provided by statute, and as supplementary thereto, make such orders as are equitable and just in matters not specifically provided for by statute. Mercer v. Justice, 63 Kan. 225, 65 Pac. 219; Cleland v. C. Clark, 123 Mich. 179, 81 N. W. 1,086, 81 Am. St. Rep. 161. It is a well-settled principle of equity, moreover, that when a bona fide possessor of property makes melio |