(concurring specially): I concur in the result in this case and in large part in what is said in the opinion. In view, however, of that result, paragraph 3 of the syllabus and portions of the .corresponding part of the opinion seem to me inappropriate and inadvisable. We are here saying that in a forcible detainer case, on appeal from the 'justice court to the district court, there can 'be no binding determination of title and that claims of title can only be considered as incident to determination of the right of immediate possession. The new trial is to be so limited. That being true it is not for us upon this appeal to pass upon any claims of title which may be made by either party and nothing should be said which either party might construe as such, even by implication. Whether facts will be developed which will, in the opinion of the trial court, place defendant’s claim of an equitable title under an oral trust agreement within the rule of Bramwell v. Trower, cited in paragraph 3 of the syllabus, is mere speculation. For the same reason I would have considered inadvisable any determination at this time of the question of whether the defendants’ asserted trust is unenforceable under the statute of frauds. We do not know what facts may be disclosed, having an important bearing upon that question.
This expression of personal views is not meant to convey the impression that the court’s opinion is intended to indicate that the rule stated in paragraph 3 of the syllabus will be found applicable in this case and prevent judgment for plaintiff. I only wish to make clear that as far as I am concerned no opinion is being indicated on that question.