¶1delivered the opinion of the court.
¶2It is impossible for us to imagine upon what theory of law the court below admitted the evidence of the defendant as to the condition of the title to the lands in his children. The action was possessory, under § 538, code of 1880. Who the delinquent tax-payers were was wholly immaterial; what their ages was equally immaterial. The minor children of the defendant were not parties to the suit; but, if they had been, their minority did not exempt their lands from taxation.
¶3This manifest and fatal error is not attempted to be maintained by appellee’s counsel; but his sole reliance for an affirmance rests upon objections to the bill of exceptions which are rather technical, and are unsupported by a fair interpretation of the record. It is sufficient to say we do not concur with counsel in his contention on this point.
¶4Excluding the evidence of the defendant, as should have been done, the plaintiff', on the record before us, was entitled to have had a peremptory charge.
¶5Reversed and remanded.