The opinion of the court was delivered by

It was the duty of the Kansas City & Southwestern Railroad Company and its successors in interest fully to perform the conditions of the written contract. G. W. Yount and his representatives had a right to expect an ultimate discharge of that duty, and to treat the contract as a subsisting obligation until it was completely performed. When the contract was finally repudiated by the defendant, the plaintiffs had the right to accept the situation as it *401then presented itself, and to protect themselves accordingly. The defendant was in the actual possession of the land and was actually devoting it to railroad purposes. Except for the public interests involved the law would require it to be ejected. Since, however, on account of such interests, the defendant could claim the right to continue to retain and use the land for railroad purposes, the plaintiffs had the right to institute suit on the basis of a permanent appropriation of the land by the defendant for railroad purposes at that time, and to recover damages as upon a proceeding by condemnation for such purposes. (Mo. Pac. Rly. Co. v. Gano, 47 Kan. 457, 459, 28 Pac. 155.) Under this theory of the case, the petition stated a cause of action, the action was not barred by the statute of limitations, and the damages were determined as of the proper date. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 38, 59, 39 Pac. 718.)

The record disclosed an obligation of the plaintiffs to convey. It did not disclose the renunciation by the railroad company of all right and duty under the contract, or the fact that the plaintiffs were no longer hampered by it. Therefore it was proper to ask a judicial determination of the fact that the contract no longer measured the rights of the parties. Full relief appropriate to the situation of the litigants could be administered in one action, and it constituted no misjoinder to seek such relief in that manner.

Clearly there was no defect of parties plaintiff. Under the foreclosure proceedings all the rights, title and interest of the first railroad company to the land under the contract passed to the defendant, and no one but the defendant could base any rights upon it. It was not necessary, therefore, to make any one else a defendant in the action.

*402Under the undisputed evidence the defendant suffered nothing from the instructions, and the judgment will not be reversed op. account of them.

The record being free from prejudicial error, the judgment of the district court is affirmed.