—The question argued by appellants’ counsel upon this appeal is whether a separate action for mesne profits, independent of an action for the possession of real estate, can be maintained under our statute. Ro brief has been filed on behalf of appellee. In our opinion this question should be answered in the affirmative.
It still remains to determine the sufficiency of the complaint, a demurrer to which for want of sufficient facts to constitute a cause of action against appellee was by the trial court sustained, and which action of the court is the only error assigned.
The complaint avers that the plaintiffs (appellants here) are and have been since June 13, 1891, the owners in fee simple of certain real estate (describing it) ; that the defendant has had possession of the said premises unlawfully and without right and has kept plaintiff out of possession
The complaint is fatally defective in failing to show that appellants were entitled to the possession during the time for which they seek to recover for'the use and occupation.
Judgment affirmed.