Jarvis v. Campbell

The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note, given by the defendant to the plaintiff. The note was dated March 2, 1874, and was given for a claim to a certain piece of land, which was a part of what was then called the “ Osage ceded lands.” The plaintiff’s brother had once resided on the land, and had made some improvements thereon, but at the time the note was given the land was vacant and unoccupied. The railroad company (but what railroad company is not shown) had a patent for the land, but it is admitted that the patent was illegal and void. The plaintiff, however, did not pretend to found his claim, or the claim of his brother, to the land upon any supposed right of the railroad company. The land really belonged to the .United States, but the United States, by a treaty with the Osage Indians, had no right to do anything with the land, except to sell it “ on the most advantageous terms for cash,” and to apply the proceeds of the sale as provided by the treaty. (14 U. S. Stat. at Large, pp. 687, 692, article 1, and amendments.) The treaty also contained a provision, that “no preemption claim or homestead settlement shall be recognized.” (Id.) No person really had any right to take possession of said land, or to occupy it, without first purchasing it from the United States. The contract between the plaintiff and defendant was illegal and void, and the note was given without any sufficient consideration. After the defendant purchased the land, or the claim thereto, from the plaintiff, he had no right to go upon it, and if he had done so he would have been a tres [372] passer. He therefore got nothing by his purchase, and his note was entirely without any valuable or legal consideration. We would refer to the following authorities: Wood v. The M. K. & T. Rly. Co., 11 Kas. 323; Stone v. Young, 4 Kas. 17; Vickroy v. Pratt, 7 Kas. 238; Brewster v. Madden, 15 Kas. 249; Brake v. Ballou, 19 Kas. 397; Lucas v. Sturr, 21 Kas. 483. The fact that the business was done by the plaintiffs brother, and not by the plaintiff himself, and that the plaintiff was ignorant at the time as to what the consideration of the note was, can make no difference; for a deposition of the brother was introduced in evidence, showing that he acted as the agent of the plaintiff and what the agent knew, of course the principal is bound to know; and the plaintiff afterward accepted the note, which was originally executed to him, and thereby ratified what his agent did. The judgment of the court below will be affirmed. All the Justices concurring.