¶1(dissenting in part). There are several propositions in the foregoing opinion to which I cannot assent.
¶2Plaintiff brings this action to quiet title to a quarter section of land. Defendants first claimed hostile title under a tax deed. This court held the tax deed void. Defendant next claimed title as a mortgagee in possession with the consent of the mortgagor, for a period of ten years, during which time he claims to have been in open, notorious, adverse possession, and has paid all taxes. This court has now decided this claim against him. Therefore plaintiff is entitled to a decree quieting title in himself, subject only to the rights of defendant under his mortgage. This court now makes an accounting between the parties in which the defendant is allowed taxes and interest thereon, and for breaking the land and interest thereon, and for stoning the land and interest thereon, although defendant has not asked for those items in his answer, and incurred such expense in attempting to take the land away from plaintiff, and not for his benefit. On the other hand, when it comes to allowing the plaintiff for the use of his land, the most rigid economy is observed. Pasture land is only worth 5 cents an acre. This for some 2,000 year acres, and no interest thereon either. But while this manner of accounting is not equitable by any means, yet it is not so objectionable as the next order of this court. The opinion says that this mortgage, and the breaking and stoning expenses, and the interest thereon, must be paid within ninety days, or the action will be dismissed. When we remember that defendant has not asked for his money at all, this seems to me to be unjust. In my opinion plaintiff-is entitled to have his title quieted, subject to the mortgage, and not be forced to pay up so suddenly. Again, § 7178, Revised *442Codes of 1905, says: “Costs shall be allowed, of course, to the plaintiff in the following cases: (1) In an action to recover real property.”
¶3Sec. 1180 reads: “In the following cases the costs of an appeal must be in the discretion of the court: (1) When a new trial shall be ordered; (2) when a judgment shall be affirmed in part and reversed in part.” Under these sections, I believe the plaintiff entitled to his costs in this action; he is the plaintiff and has recovered real property, and he has secured a straight reversal of the judgment of the trial court.