ON REHEARING.
Corn, Chiee Justice.A rehearing was granted in this case upon the proposition presented by counsel for plaintiff in error that, as the District Court had jurisdiction to adjudicate the question of the right of possession at'.the time the original judgment was rendered and determined it in favor of the bank and no proceedings in error were instituted, no reason appears why so much of such judgment as the court, had authority to render should be vacated or annulled;, that, therefore, the judgment-under consideration should be so modified as to leave the original judgment in force to the extent that it .decreed the right of possession at that time to be in the bank and adjudged the costs against the defendant, Stein-hoff. . ■
The briefs of counsel-having, been specially, directed to the question whether the original judgment, as a whole, was properly set aside in this action,-the distinction now insisted upon in a measure escaped .our attention. Counsel for defendant in error relies upon two propositions: First, that the court was without jurisdiction to render the original judgment, and, second, that matters have arisen since its rendition which render its. enforcement inequitable and unjust. We have held that, so far as the District Court merely adjudicated the question of the right of possession at that time, it acted with jurisdiction. . That part of the *312judgment is, therefore, not to be set aside upon the ground that the court was without j urisdiction to render it. Counsel contends that, as the judgment was based upon the findr ing that the bank had the fee simple title, which it was not competent for the court to find, the title being confessedly still in the Government, that, therefore, the judgment itself was void in toto and must give way. But the conclusion does not follow. The court had jurisdiction to determine the question of the right of possession between these parties and had them before it. Its judgment may have been erroneous as based upon insufficient evidence or a misconception of the law. But it is not before us and was not before the District Court upon any proceeding in error for the examination of that question.
Then, under the second proposition of defendant in error, that matters have since arisen which render its enforcement inequitable and unjust, does justice or equity require that plaintiff in error, having occupied possession and exercised control of the premises under authority of a judgment of a court of competent jurisdiction, should now, by the vacation of such judgment, be placed in the attitude of a mere intruder upon the land and a trespasser upon the rights of Steinhoff, for the reason that the latter has since acquired the title? - We think it clearly does not, unless such complete vacation should be necessary for the protection of the rights of defendant in error. And it is evident that the continuance in force of the judgment, to the extent that the court had jurisdction to render it, cannot interfere with defendant in error in the assertion of his since acquired title and his right of possession incident to it. We find no reason, therefore, why it should be vacated.
The judgment of the District Court will be so modified as to vacate the former judgment only so far as it decrees the title to the land in the bank and enjoins Steinhoff from interfering with its possession. And as so modified the judgment will be affirmed.
We think there was reasonable cause for the proceedings *313in error in this case and the request of counsel for defendant in error that attorney’s fees and penalty in the way of damages be allowed must, therefore, be denied.
Judgment modiñed and affirmed.
KNIGHT, J., and Potter, J., concur.