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The opinion of the court was delivered by

Benson, J.:

This is an action in ejectment by the holder of a tax title against the defendants who are the owners of the land in fee unless their title is extinguished by the tax deed. The judgment was for the defendants, awarding, however, a tax lien in favor of the plaintiffs for taxes for over $250.

Several questions are discussed but only one need be considered since it determines the controversy. The tax deed was issued September 13, 1902, and was recorded October 8, 1902. The land was vacant and unoccupied until the defendants took possession, which was in April, 1907, as the district court found. This action was commenced in April, 1911. The holder of a tax title has two years from the date of the recording of the tax deed in which to commence an action to recover possession. (Civ. Code, § 15, subdiv. 3.) But where the land is vacant and unoccupied for more than two years after the deed is recorded he has two years from the time the original owner takes actual possession in which to commence his action. (Case v. Frazier, 30 Kan. 343, 2. Pac. 519; Coale v. Campbell, 58 Kan. 480, 483, 49 Pac. 604; Gibson v. Hinchman, 72 Kan. 382, 83 Pac. 981.)

The finding that the defendants took actual' possession in April,'1907, is, however, disputed. The evidence must therefore be. examined to determine the fact. It appears that in February,- 1907,- the- defendants leased the land to J. J. Banks. At that ti-me there'was a dug*137out upon the land, constructed upon the belief that it was upon another tract. The defendants paid for the dugout and their tenant occupied it. The tenant broke out two acres and laid- off the boundary lines by plowing furrows around it. The following year, 1908, the defendants leased the land to another tenant for three years, who agreed to put in a crop, but on account of dry weather he did not plow upon the land but herded some cattle upon it that year. He plowed ten acres and put a crop upon it in the year 1909. He disked the land in cultivation for a crop in the year 1910, but did not plant it because it was too dry. The tenant herded cattle for the defendants on the land in the years 1908, 1909 and 1910. This evidence is sufficient to sustain the finding that the defendants took actual possession of the land in the spring of 1907.

There is also a finding that the plaintiffs took possession in March, 1911, although it was not shown how long they held it. The time must have been quite short, for the defendants were in possession when this suit was brought, in April, 1911, as the plaintiffs allege and the evidence shows, and it was occupied at the time of the trial by the same tenant who leased it from the defendants in the year 1908. The district court found that the possession so taken by the plaintiffs was forcible, and held that it was of no effect in this litigation, but allowed them to remove the improvements made during their brief occupancy.

Our conclusion is that the plaintiffs’ cause of action was barred by the two years’ statute of limitation, and that the court did not err in holding' that the 'alleged possession of the plaintiffs' in March, 1911, was not effectual.

The defendants cómplain of the lien for taxes and. interest because there was testimony that'a tender, had been made, but the evidence relating to tender was conflicting and the allowance of the lien is approved.

The judgment is 'aífirméd. '

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