
    Karl A. Krause v. Mary A. Means.
    July Term, 1873.
    1. Occupying Claimants: Entitled to Benefit of Act. One who is in quiet possession oí land, and holding the same by bond from and under any person claiming title by deed duly authenticated and recorded, is entitled, under the second clause of section 601 of the Code of 1868, to the benefits of the occupying claimant law.
    
    2. -. Where there is duly recorded a regular succession of conveyance, which appear upon their face in proper form and valid, from the original vendee of the government, but no title has actually passed by reason of personal disability to convey in some grantor, the party in quiet possession, and claiming by such chain of title, is entitled, under the first clause of said section 601, to the benefits of the act.
    3. -: Indian Owner. While it may be doubted whether an Indian owner of land, held under treaty stipulation, can be compelled to pay for improvements under the occupying claimant act, yet this immunity, if it exists, is a personal privilege; and the grantee of such owner succeeds only to the title to the land, and has no better right to improvements made by an occupying claimant than any other owner of real estate.
    
    Error from Franklin district court.
    Means brought ejectment for 320 acres of land in Franklin county, and obtained a judgment for the recovery of the land at the March term, 1873, of the district court. The defendant, Krause, claimed the benefit of the occupying claimant act, and asked the court to direct the entry to be made, the jury drawn to assess the lasting and valuable improvements made by him, as provided by sections 603,604, Civil Code. The court held that Krause was not entitled to the benefits of the act, and refused to order the entry to be made.
    
      John W. Deford, for plaintiff in error.
    It was admitted in the court below that.Krause, being in quiet possession of the land, and holding the same by a bond from and under a person claiming title by deed duly ^authenticated and recorded, was clearly within the letter of section 601 of the Code. But the district court held that the deed from Julia Goodell to Perry Fuller, being a nullity by virtue of article 10 of the treaty of ninth July, 1860, did not amount to even color of title, and hence was not sufficient to sustain Krause’s claim to the benefit of the occupying claimant law, and that, although within its letter, he was not within its true spirit and intent. But in Stebbins v. Guthrie, 4 Kan. *353, the tax deed and certificate under which the occupying claimant held were “null and void,” yet this court decided that they entitled him to the value of his betterments. And see Beardsley v. Chapman, 1 Ohio St. 118.
    It is also claimed that to enforce the occupying claimant law in this instance would, in effect, defeat the operation of the Sac and Fox treaty of July 9, 1860, and thus violate a paramount federal law. This point might perhaps have been well taken while article 10 of that treaty continued iu force, and the land in question remained in the hands of Julia Goodell, the original allottee. But article 10 ceased to operate in 1867, when the treaty of that year took effect, and we are dealing here, not with Julia Goodell, but with her vendee. How, then, is it possible, by compelling Mrs. Means to pay Krause for his betterments, thereby to infringe the provisions of a Sac and Fox treaty, or of any federal law? Ever since the United States conveyed the property in fee simple to Julia Goodell, and, a fortiori, since it has belonged to Mrs. Means, it has been subject exclusively to the laws of Kansas. As to the equity and good conscience of Krause’s claim, there can be no controversy. He has occupied this land for many years in good faith, and has made upon it lasting and valuable betterments. He has lost it only by virtue of a very brief and obscure clause in an Indian treaty. On the other hand, the conduct of Mrs. Goodell in first making a warranty deed for the land to Fuller, in violation of the treaty with her tribe, and then, after obtaining the right to make a valid conveyance, selling it again to Mrs. Means, however blameless it may be in a strictly legal aspect, has been, morally and justly *speaking, palpably and grossly fraudulent. And of all this Mrs. Means, before she bought the property, must have had at least constructive notice. Her attitude, therefore, is certainly not such as to commend itself to the conscience of the court.
    
      Welsh dc Benson, for defendant in error.
    Fuller’s title was not defective, but was absolutely prohibited under previously existing treaty provisions, and therefore void. Therefore it follows that if Krause purchased- of Fuller lands which he did not own, nor had any right to own, Krause would have no better title than Fuller. At the time he purchased of Fuller, and took possession of the land in question, he was bound to take notice that said land was inalienable except to the United States or members of the Sac and Fox tribe, and with this knowledge he claims to have taken possession.
    The object of the “occupying claimant act” is to protect those who improve lands on an apparent title, which on its face gave the right of possession, and when that possession is obtained as the law prescribes, and not to protect speculation by squatting on lands allotted by the United States to half-breed Indians. Krause never had any color of title. Then, “if no color of title,” he had no adverse title to the title of defendant in error. Krause was a trespasser, and no trespasser can be in quiet possession, nor obtain a right thereto. McCoy v. Grandy, 3 Ohio St. 466; Wood v. Missouri, K. & T. Ey. Co., 11 Kan. *323.
    As to the question whether article 10 of the treaty of 1860 continued in force, or ceased to operate in 1869, it in no way assists Krause in his claim, for Krause’s claim dates back to his settlement, which was in 1860; and if he was a trespasser, then he continued to be a trespasser up to the time of the commencement of the plaintiff’s suit. Stevens v. Smith, 2 Kan. *243.
    
      
      See note to North v. Moore, 8 Kan. 103.
    
    
      
       See Franklin Co. v. Pennock, 18 Kan. 590. When Indian owner cannot be compelled to pay for improvements under occupying claimant act, Maynes v. Veale, 20 Kan. 374.
    
   Brewer, J.

The question presented in this ease is whether the plaintiff in error is entitled to the benefit of the occupying *claimant act. The facts are these: The land in dispute was assigned to Julia Goodell, a half-breed Indian, and a member of the Sac and Fox tribe of the Mississippi, under article 10 of the treaty ratified July 9, 1860. 15 U. S. St. at Large, 470. In 1862, Mrs. Goodell conveyed it by her warranty deed to Perry Fuller, a white man, and not a member of the tribe. This deed was duly recorded in the office of the register of deeds of Franklin county on the day it was executed. Under the treaty, however, this deed “was a nullity, and conveyed no title,” as was held by this court in Pennock v. Monroe, 5 Kan. *578. Nevertheless, in October, 1863, Fuller gave his bond to Krause, conditioned to convey to him said land (upon receiving the purchase money, — $1,000) by a deed in fee-simple. Krause then entered, and made lasting and valuable improvements, and has ever since remained in possession under Fuller’s bond. By virtue of' the amended seventeenth article of the Sac and Fox treaty, concluded February 18, 1867, (15 U. S. St. at Large, 498,) the government conveyed the land to Mrs. Goodell by a patent in fee-simple, thus abrogating the restraint upon its alienation imposed by the old treaty. She then conveyed the fee to the defendant in error, who brought ejectment, and recovered, and who now claims both land and improvements, and denies the right of plaintiff in error to the benefit of the occupying claimant act.

That Krause brings his case within the letter of the law is evident. He is “in quiet possession,” and holds “the same by bond from and under a person claiming title by deed, duly authenticated and recorded, ” and is thus within the second class of eases provided for in the statute. Code 1868, § 601; Comp. Laws 1862, c. 25, § 1. He is within the spirit of the law which aims to secure compensation to him who, in a mistaken conviction of ownership, meliorates the land he occupies with lasting and valuable improvements. What equitable claim has the defendant in error upon these improvements?' Her labor never put them there; her money never paid for them. Shall she take the fruits of his toil and money without eompensation? He holds under a regular *chain of title from the original owner; and because she bylaw may, and actually does, repudiate her first sale and conveyance, does it savor of equity -and good conscience to permit her, or her subsequent grantee, to retake, not only the land she has sold, but also all the improvements the purchaser has placed on the land, on the faith of the title she -conveyed? He is also within the reach of the adjudicated cases. This statute was taken from Ohio, and of course the judicial construction given there prior to its adoption here is authority. In Glick v. Gregg, 19 Ohio, 57, it was decided that the statute applied to cases where the claimant himself held by deed duly authenticated ■and recorded. In Beardsley v. Chapman, 1 Ohio St. 119, this construction was repudiated, but it was decided that the statute applied ■where the claimant held by deed, bond, or devise from one claiming title by deed duly authenticated and recorded.

But again: The title to this land passed from government to Julia Goodell. She conveyed by a deed regular in form, and apparently valid, and from her grantee Krause obtained his title. The defect in the title does not appear on the records or conveyances, but arises from a disability to convey in Mrs. Goodell. It seems to us this is a “plain and connected title, derived from the records of some public office,” and therefore brings Krause within the first clause of the •statute. Of course, the words “plain and connected title,” as used here, do not import a perfect title; for he who holds by such has no need of the occupying claimant act. It implies a^ defective title, and refers only to the appearance of the record. It applies to a case like the one at bar, where, though there be a regular succession of conveyances, there is a disability in some grantor which prevents the title from actually passing'.

It is claimed, however, in this case, that to allow Krause the benefits of the occupying .claimant act “would in effect defeat the operation of the Sac and Fox treaty of July 9, 1860, and violate a paramount federal law. ” It may be conceded that neither the title nor possession of the Indian owner, *secured by treaty with the United States government, can be disturbed by state legislation; and if Mrs. Goodell were plaintiff- in the action, seeking to recover possession, it is probable she would be entitled to both -land and improvements, (though as that question is not before us we -do not decide it.) But this property protection, guarantied to the Indian owner, is a personal privilege, and does not run with the land. Mrs. Goodell has parted with the title, and the protection which the federal law threw around this land has ceased. The present owner looks to the state law for the measure of her rights and liabilities. •She can no more invoke the immunities of her grantor as to the land in this than in the matter of taxation, liability to seizure and sale on •execution, or any other exemption secured by treaty to Indian owners of land within this state. We need not inquire whether any prior party in the chain of title could have set at naught the state law for the protection of occupying claimants. It is enough that the present -owner has no such immunity.

The judgment of the district court will be reversed, and the case-remanded, with instructions to grant to said Iirause the benefits of. the occupying claimant act.

Kingman, C. J., concurring.  