— The plaintiff, Ephraim P. Crispen, brought an action of ejectment for the recovery of the southeast quarter of section seven, in township fifty-three, north, in range twenty-one, west, in Carroll county, Missouri, February 15, 1869, against the ancestor of the defendants, whose death was suggested, and the case properly revived. At the September -term, 1875, said cause was tried, and plaintiff recovered all of said tract, except eleven acres off of the west side thereof. An appeal to the Supreme Court was allowed defendants at said term, but no appeal bond was given. On the twenty-sixth of October, 1875, the plaintiff, under a writ of possession of said Carroll circuit court, was put in possession of the premises so recovered, and still retains the same, except as hereinafter stated. Defendants thereafter prosecuted their appeal to the Supreme Court, and at the October term, 1880, of said court, said cause was reversed and remanded, and. a mandate in the usual form was issued to the Carroll circuit court.
At the March term, 1881, of said circuit; court, defendants filed in said court their motion asking that an execution issue against Crispen, requiring the sheriff to restore to defendants below the possession of the real estate which they had lost by virtue of the former judgment and execution thereunder; also, for costs, damages, rents, and profits, collected on said execution. Plaintiff filed objections to the hearing of this motion on the following grounds;
1. That said cause was placed upon the docket of the said March term, 1881, for trial on the twenty-fifth of March, and the fifth day of said term, and that said cause was called for trial, and plaintiff announced that he was ready foii.trial.
*1652. That defendants’ said motion was not filed until March 29, being the eighth day of said term, and that no notice was given plaintiff of the filing of the same before the same was filed.
3. That said motion was filed for- delay, and that ■the same has nothing to do with the merits of the case.
These objections were overruled, to which plaintiff ■excepted, and thereupon he filed an answer to the motion to the effect that in September, 1880, while the judgment rendered in his favor, in 1875, remained in full force and unreversed, leased ninety acres of the land recovered by him, to one Wilkerson, for one year from that date, who planted it in wheat, and was still in possession of the same under said lease. That no part of the damages recovered by him in said judgment were paid by, or collected from, defendants, and that he had repaid all costs 'collected of defendants. This answer was sworn to by plaintiff. On the hearing of the motion, the judgment, writ of possession, and mandate of this court were read in evidence, whereupon the court sustained the motion, and ordered an execution to issue restoring defendants to the possession, and rendering judgment in favor of defendants for nine hundred and fifty dollars, for rents and profits while plaintiff was in possession from October 26, 1875, to March, 1881. It is from this action of the court that plaintiff appeals.
This case was argued in connection with the case number 1753, of Crispen v. Hannovan et al., which, upon the reversal by this court of the judgment rendered therein in 1875, was again tried at the July term, 1881, of the Carroll circuit court, and judgment rendered for plaintiff for six of the eleven acres not recovered by him in the former judgment, and from which defendants have .appealed. Both the’je cases having been argued in this ■court together, and each being so dovetailed into the other that the consideration and determination of them .separately would operate to the prejudice of one or both *166parties, we feel justified in considering them together. It seems to be conceded that the evidence adduced on the trial of the ejectment suit, had in July, 1881, showed a complete and perfect paper title to the lands sued for to be in the plaintiff, and that defendants, being without color of title, rested their claim to defeat plaintiff’s recovery on the sole ground of an open, notorious, actual adverse possession for such length of time as, under the statute of limitations, barred plaintiff ’ s right of action. It appears that by reason of the fact that Crispen, when he appealed from the order and judgment of the circuit court, made at its March term, 1881, directing the restoration to defendants of the possession of the land lost by the judgment in 1875, gave bond, which operated as a supersedeas; that at the trial of the ejectment suit in July, 1881, he, Crispen, was still in possession of all the land into which he had been put under the execution which issued on the judgment obtained by him in 1875, which judgment was afterwards reversed by this court in 1880. At the close of plaintiff’s evidence the record shows that he waived any claim for damages as against the defendants for the time they-occupied the land after their father’s death up to the time of the trial. The court found for plaintiff, except as to five acres off the-west end of the land, and gave judgment against the administrator of Bernard Hannovan, deceased, the ancestor of defendants, for five hundred dollars damages, and ascertained the monthly rental value of the additional six acres recovered in this suit to be one dollar.
The chief error assigned by defendants, on their appeal from this judgment, is the alleged error of the court in giving and refusing instructions. The defendants asked three instructions, two of which were to the effect that if plaintiff recovered judgment, in 1875, for the possession of all the land in suit, except eleven acres off the west side thereof, and was put in possession under said judgment, which was subsequently reversed by this court, *167which issued its mandate to restore toQ defendants all things lost by said judgment, and that defendants had not been restored to the possession, but that plaintiff was still in possession, the finding should be for defendants.
The third instruction was to the effect that if the land in controversy was military bounty land, and that defendants, and those under whom they claim, had been in the actual, open, and adverse possession of eleven acres off the west side of said land for more than two years prior to the judgment of the Supreme Court, rendered in this cause, reversing the former judgment and remanding the cause, that then the defendants have acquired title to said eleven acres by limitation. '
These instructions were refused. The first two were rightfully refused, if upon no other grounds than that if plaintiff had a right to the possession of the land in controversy at the time the action was commenced, and defendants, or those under whom they claim, were at that time in possession, it is sufficient to authorize a recovery. R. S., sec. 2247. Besides this, sections 2256 and 2257, Revised Statutes, indicate that a judgment in ejectment may be for possession and damages, or for damages and costs only, and by section 2253 it is provided that when the right of plaintiff to possession expires after the commencement of the action, the plaintiff is entitled to damages and costs. These two instructions were also properly refused under the following authorities, which establish the proposition that, though a plaintiff may come into the possession of the land after his ejectment has been commenced, and during its pendency, he is nevertheless entitled to costs and mesne profits: Price v. Sanderson, 3 Harrison (N. J.) 426; McChesney v. Wainwright, 5 Hammond (Ohio) 452; Venner v. Underwood, 1 Root (Conn.) 73.
The third instruction was also properly refused. The j udgment rendered in 1875, which was reversed on defendants’ appeal, was an entirety, and the only effect *168of such reversal was to “restore the parties to the same condition in which they were prior to the rendition of the judgment. The judgment reversed becomes mere waste paper, and the parties to it are allowed to proceed in the court below to obtain a final determination of their rights in the same manner and to the same extent as if the cause had never been heard or decided by any court. Neither, in the subsequent prosecution of the cause, can suffer detriment nor receive assistance from the former adjudication.” Freeman on Judgments, sec. 481.
• It is further insisted that the judgment is erroneous in this, that Mary McKinney, one of the defendants, who was joined with her husband as a party, and against whom it was rendered, was a married woman. While this is an error, it is not such an one as necessarily leads to a reversal of the judgment, inasmuch as, under the rulings of this court, in the cases of Cooper v. Ord, 60 Mo. 430, and Bledsoe v. Simms, 53 Mo. 305, she was not a necessary party, and inasmuch as it has been held in the cases of Weil v. Simmons, 66 Mo. 619, and Cruchon v. Brown, 57 Mo. 39, that this court may, and will, in furtherance of justice, correct the error by modifying the judgment and striking out the name of such party. In view of the length of time this litigation has lasted we do not believe the purposes of justice would be sub-served by reversing the judgment and remanding the cause for the error above indicated, and we will modify it by striking out therefrom the name of Mary McKinney and affirm the judgment so modified, and, inasmuch as defendants were driven to an appeal to correct this error, the costs of the appeal are hereby adjudged against the plaintiff.
In case number 1465, the judgment of the circuit court, awarding execution for restitution of part of the premises to defendants, and for nine hundred and fifty dollars damages, will be reversed for the reason that there was no evidence before the court upon *169which, to base the finding in respect to the damages, and for the further reason that in the trial of the ejectment ■suit, no claim for damages was made, and none were allowed against defendants for the time plaintiff had possession of part of the land under the reversed judgment. The judgment in said case number 1465 will be reversed and cause remanded with directions to the circuit court to enter up judgment against plaintiff only for such cost and damages as an investigation may show defendants actually paid on the execution which issued on the said judgment rendered in 1875, and which have not been paid by plaintiff Crispen.
All concur, except Judge Ray, who did not sit in the case.