On Petition for a Rehearing.
Ouds, J.As is said in the original opinion, this is an action on covenants of warranty. In a suit against both the appellants and appellee, the true owner had recovered the land and evicted the appellee. In that suit the true owner had sued for rents and profits and failed to recover. In this .suit the appellants sought to set off the rents and profits of the land and the value of timber taken from the land by the appellee while he occupied the same before eviction. This ■they could not do. The rents and profits and the timber belonged to the true owner of the land. The fact that the true owner of the land failed to recover his just dues in the former action, by obtaining a judgment for the amount of the rent and the value of the timber, did not give the appellants any title to the rent and value of the timber. It did not transfer the owner’s title to the rent and value of the timber to the appellants, whereby they could set off the amount against the sum they owed the appellee. It is said the true reason the owner did not recover for the rents and profits is because he occupied another tract of land of equal value. Suppose he did. If he did not own such tract he would be liable to the true owner of such tract of land for the rent of it. Suppose the appellee had occupied the land and become liable for rents and profits to the true owner in an amount equal to the amount he paid for the land, and interest thereon, but the claim in favor of the owner for rent had been barred by the statute of limitations before the appellee brought this action for the breach of warranty, could appellants set off the amount of rent received by appellee, and for which he was no longer liable to pay to the true owner? Certainly *276not, and yet there would be just as much reason in allowing such sum as a set-off as the sum sought to be set off in this case, which the true owner is barred from collecting of the appellee by reason of it having been once litigated in a suit between the true owner and the appellee. If the appellants had paid the rent to the true owner and paid him for the timber, and obtained an assignment of his claim, and then sought to set it up in this case as an off-set, it would present a different question.
It is urged with much earnestness that the case ought to be reversed for the reason that the appellee recovered the amount of the Johnson notes which appellants contend they only took as collateral security. The controversy in the trial of the case was as to whether the appellants accepted the notes as an absolute payment or as collateral security, and the jury found in favor of the appellee. We do not deem it necessary to set out the evidence in full bearing upon that issue. There is evidence to support the finding of the jury, and this court has so repeatedly held that it will not weigh the evidence where there, is any evidence to support the verdict, or tending to support it, that it is unnecessary to cite authority, as almost any volume of the reports contains one or more decisions to that effect.
The case has been given full consideration and the record examined, notwithstanding the failure to properly enter marginal notes, and there is no error in the record for which the judgment should be reversed.
The petition for a rehearing is overruled.
Filed Feb. 26, 1890.