concurring specially. The complaint avers that in September, 1914, the plaintiff conveyed to the defendant certain land in exchange for a quarter section of 27 — 154—97, which defendant conveyed to the plaintiff by warranty deed, with covenants of quiet possession when in truth the Missouri river had and held possession of the greater part of the land and had divided it. The jury found a verdict against defendant for $771.85, and he moved for judgment notwithstanding the verdict, and, in the event of refusal, for a new trial.
The motion for judgment was denied, and the motion for a new trial was granted, and defendant appeals. It appears that the case was tried on the basis of fraud and false representations by the defendant, and, in granting the motion for a new trial, the court said: “The evidence on the question of fraud is not very clear and convincing.” However, the actual damage to the plaintiff in no way depended on the condition of the defendant’s mind at the time of making the contract, or his knowledge of the facts as to whether or not the Missouri river had taken possession of the land.
As the plaintiff has not appealed from the order granting a new trial, the appeal presents no question for consideration. With regard to the question of fraud, the plaintiff was clearly entitled to a judgment, *122fraud or no fraud. It was only a question of damages, which the jury had fully passed on, and that should have ended the litigation; and the •order for a new trial was granted on defendant’s own motion and surely he has no ground for an appeal from it.
Order affirmed.