Action to quiet title. Plaintiff’s claim to title is founded on a tax deed which omitted a necessary recital. On the trial in the court below, at the conclusion of plaintiff’s evidence, the defendant moved for a nonsuit, which was denied. The defendant then 'offered his testimony, after which the cause was submitted on the merits, and judgment was rendered in favor of defendant. The plaintiff (appellant) admits that since his appeal was taken this court has held a deed similar to that on which he relied to be invalid, but now claims thát the court erred in rendering judgment on the merits, and should have rendered judgment of nonsuit. *654The motion for nonsuit was made by the defendant. No motion on the part of plaintiff was denied. The ease was submitted on the merits, and was so decided by the court. We see no error. The decree in favor of the defendant determined the rights of the parties as presented in this action.

The judgment and order are affirmed.

We concur: McKinstry, J.; Boss, J.