The opinion of the court was delivered by
Horton, C. J.:
The only question in this case is the measure of damages for a breach of the covenant of warranty in the conveyance of real estate. The land was purchased from T. E. Smith, his wife joining in the deed, November 1, 1869, for $600; after the date of the deed, the land was at all times subject to the control and disposition of the plaintiff, who rented the same for grazing purposes during the years 1882 and 1883 for $30; at the time of the conveyance to the plaintiff the title of the land was in T. E. Smith, but was based solely upon a tax deed executed April 22,1865; on February 18, 1886, the plaintiff voluntarily yieldéd the land to John W. Flora on account of his paramount title; Flora at the same time paid to the plaintiff the taxes, interest, costs and penalties to which the plaintiff was entitled under the tax law; the amount received by the plaintiff for taxes, interest, costs and penalties upon the tax deed paid prior to her purchase, was $684.02; she also received from Flora for taxes, costs, interest and penalties to which she was entitled subsequent to her pur^ chase, $715.98; at the time that the plaintiff yielded possession of the land, in February, 1886, it was worth $2,400. It is the contention of the plaintiff that as her measure of damages, *149she is entitled to the purchase-price of the land, to wit, $600, with interest thereon at 7 per cent, per annum from November 1,1869, making a total of $1,356. It is immaterial whether the tax deed gave possession or not. No one contested the plaintiff’s possession; she had full control of the land, and through her tenant, actual occupation, because it appears that she rented the land for grazing purposes during the years 1882 and 1883,'and was not held to account to anyone for the rents or for the benefits which she received flowing directly from the conveyance to her. It was solely by reason of the tax title and interest conveyed by T. E. Smith and wife that the plaintiff received so large a sum of money from Flora, when she voluntarily suffered eviction. As the land had a usable value, and as the plaintiff' had the possession thereof from the purchase to her eviction, with the opportunity of enjoying all of its benefits without liability to account for the mesne profits; and as she received in return of the taxes, interest, penalties, etc., an amount in excess of the consideration paid by her for the land, we do not think she ought to recover further or other damages from the defendants. (Stebbins v. Wolf, 33 Kas. 765.) If the plaintiff had not obtained possession of the land, or if the land had no usable or beneficial value, or if the plaintiff had been compelled to account for the mesne profits while the land was under her control, different questions would be presented for our consideration. It would be unjust, it seems to us, to say to the defendants under the facts of this case, that they should páy interest upon the purchase-money, and yet be allowed nothing for the use and benefits that the plaintiff has derived and had the opportunity to derive from the possession of the land which she obtained under the conveyance to her.
The judgment of the district court will be affirmed.
All the Justices concurring.