40 Kan. 346 | Kan. | 1888
The opinion of the court was delivered by
This was an action of ejectment, brought by H. F. Sheldon against Henry Donohoe to recover 160 acres of land in Franklin county, and the judgment in the district court of which complaint is here made was in favor of the defendant. The land is a part of the Chippewa and Christian
Under the testimony in the case we readily agree with the district court, that the plaintiff has failed to establish a right of recovery. The treaty contains a direct prohibition against the plaintiff acquiring a title either legal or equitable, or a right of possession to the land. It is conceded that he is a white man and has never been a member of any tribe of Indians, by adoption or otherwise. The land cannot be sold or otherwise disposed of except to the United States or to the members the united bands of Indians, for whom it was reserved. So far as we are advised, the restriction on the alienation of this land has remained unchanged since its enactment in 1859, and it renders Sheldon incapable of taking title, and the deed from Donohoe to him absolutely void. He claims under the doctrine of estoppel and by virtue of adverse possession for more than fifteen years, and relies on Scoffins v. Grandstaff, 12 Kas. 467, to sustain his right of recovery. In that case there was no restriction on the sale of the land to persons other than Indians, but the approval of the secretary of the interior was essential to a conveyance. Scoffins’s first purchase of the land from an Indian was invalid for lack of that approval; but although he had no title he conveyed the land by deed of general warranty and it passed through several hands to Grand-staff. Subsequently the Indian made a deed to another person, which was duly approved and valid. Scoffins afterward acquired the title through this last conveyance, and brought suit to recover from Grandstaff, the grantee under the void deed, and it was held that the title subsequently acquired by Scoffins inured to the benefit of his former grantee, and that he was estopped from violating his covenants and from setting up the after-acquired title against anyone who succeeded to the title of such grantee. That case is therefore no authority for the present one. Donohoe has no other title nor any better right to convey to Sheldon than he had when the void
Whatever may have been the plaintiff’s remedy, it is clear from the record before us that he did not establish a right to recover in this action, and therefore there must be an affirmance of the judgment given against him.