The following opinion was filed June 11, 1897:

This case was here, and the judgment reversed for error, upon a former appeal. 90'Wis. 203. Upon the trial which resulted in the judgment so reversed, the plaintiff sought to establish his title by a chain of conveyances from the government; but it was found that such conveyances did not cover the strip of land in controversy and described in the complaint. The defendant upon that trial, as here, sought to maintain his possession under and by virtue of the tax deed mentioned in his answer. In the opinion of the court upon the former appeal, written by Mr. Justice ETewman, it is said, in effect, that the plaintiff “did show actual possession of the strip. This is sufficient evidence of title to sustain his action, until the defendant has shown a better title. ... If the defendant’s tax deed was valid, it shows a better title. But its validity depends upon the question whether the premises were occupied as provided by law during the time preceding the taking of the deed. This is in dispute and doubt upon the evidence. It is also in dispute and doubt whether the defendant intruded into the-premises, or whether he entered with the consent of the plaintiff. These questions should have been submitted to the jury. It was error not to submit them.” 90 Wis. 206. The several questions thus suggested were all submitted to the jury upon the last trial, and their finding upon each question is in favor of the plaintiff. 1

*26Upon this last trial the plaintiff offered no evidence of any paper title, but based his right to recover upon his possession as alleged and proved, and upon the fact that he was unlawfully dispossessed as alleged and proved. The defendant justified his possession under his tax deed and the deni■als in his answer. Under the findings of the jury, the tax deed was necessarily held to be a nullity, by reason of the failure to give the notice required by sec. 1175, R. S. The findings of the jury seem to be sufficiently supported by the •evidence. That verdict covers “ the three-foot strip of land in controversy in this action, and described in the pleadings.” Counsel contend that the real controversy related to a strip of land not described in the complaint or the judgment. But there is nothing in the record to justify such •contention as a matter of law.

Errors are assigned because the court refused to submit to the jury questions as to the width of the lot conveyed to the plaintiff by Mrs. Russell, and also as to the width of ground which the plaintiff would have left out of lots 4 and 5, in the block mentioned, if the defendant should take twelve feet wide off the southeast side of lot 5, under his tax deed. Such questions were irrelevant to the issue on trial, and there was no error in refusing to submit! them. The same may be said as to testimony rejected, an^l instructions refused, relating to the same matters.

We perceive no error in charging the jury that “it has been determined in this case that if the jury believe from the testimony that the plaintiff was in possession of this three-foot strip, of land, and that he claimed it as his own, that that is a sufficient title, so that he can bring this action to determine whether or not he is entitled to this strip of land as against Mr. Lvtidsay, upon the claims that Mr. Lm,d-say makes.” That is substantially what was determined on the former appeal, as appears from a portion of the opinion •quotéd, and such determination is a verity in the case. So *27there vas no error in charging the jury to the effect that it was a question of fact for them to determine whether there was “ an occupation of this strip of land by the plaintiff or by any tenant holding under him, at the time this application Avas made for a tax deed and the affidavit was filed, Avhich was November 11,1890.” And also to the effect that if they found that there was no one in possession or occupancy of this three-foot strip at the time, as stated in this affidavit for a tax deed, then they must answer the question that there was no occupation by saying “Eo.” Eut if, on the other hand, they believed from the testimony that there Avas occupation of this three-foot strip at the time when the affidavit was filed and the application for the tax deed was made by the defendant, then their answer to that question in the special verdict should be “Yes.” So there was no error in charging the jury to the effect that if the plaintiff surrendered the possession peacefully and without objection, as the defendant claimed, then the defendant was entitled to possession of the land.

Other errors are assigned, but they are not such as to call for particular consideration.

By the Gourt.— The judgment of the circuit court is affirmed.

A motion for a rehearing was denied September 28,1897.