ON REHEARING.
Young, J.A rehearing was ordered as to the -amount awarded to the plaintiff for the value of the use of -the premises. The trial court found, from the -testimony taken before the referee, “that the value of the use and -occupancy of the land for the 3'ears 1898, 1899 and 1900 -was $2.50 per acre,' making a total value for all of said years -of the sum of $1,200an-d we approved the finding upon -the theory that the defendant was liable for the value of the use of the land after he had -obtained the sheriff’s -deed, and until he sold it to Lord, whether he farmed -it -or not. We are convinced that in this we were in error. The defendant had title for approximately three years, but he used -the land for cropping purposes only -one year. The fact that he had acquired title, and held it in trust, did not obligate him to farm -the land. He cou-ld not use the property for his own benefit, and, if he did, he was liable for its -use. But he could refrain from using it without incurring any liability. The estimate of $2.50 per acre is for a cropping season, the land having no -other value than for cropping purposes. Defendant did not -crop it in 1898. In fact, he did not get the sheriff’s deed until the cropping season had closed. He s-ummer-fallowed the land in 1899, and did not crop it, but did crop it in 1900. The sale to Lord was made early in the next year.
The judgment mus-t therefore be reduced to the extent of the amount allowed for the years 1898 and 1899, to wit, $800, an-d as thus modified -it will be affirmed. Appellant will recover his co-sts
in this court.
All -concur.