had no authority in law or in fact to convey one, or whether such want of authority appears on the face of the instrument, or aliunde. The instrument fails to pass an absolute title for the reason that the grantor was not possessed of some one or more of these requisites, and therefore gives the semblance or color only of what its effect would be, were they not wanting.3 3 Woodruff v. Wallace, 3 Okla. 55, 41 Pac. 363. In Wright v. Mathewson, 18 Howard, 56, the Supreme Court of the United States said on this subject: "The courts have concurred, it is believed, without an exception, in defining color of title to be that which in appearance is title, but which in reality is no title. It is useless to quote further upon this subject, as all the cases and textbooks seem to coincide upon the question that no person having a deed or instrument from a grantor can claim color of title, except he has what purports upon its face, to be an instrument conveying title. It is claimed in said motion that Province entered upon the land in good faith, under a contract with one Crawford, who Province believed was in the lawful possession of the premises, and under such contract made valuable improvements of a permanent and lasting character thereon. In the same paragraph, Province states the character of Crawford's right in the land, and shows that Crawford had no claim of any kind in the same. This showing is insufficient upon which to base the right of an occupying claimant. In order to successfully assert such a right, under our statute, the person so claiming must show a 'plain and connected title in law or equity, derived from the record of some public office, or being in quiet possession of and holding the same by deed, devise, descent, contract, bond, or agreement from and under any person claiming title as aforesaid, derived from the records of some public office.' No showing of this kind is attempted, and as against Lovi, defendant Province was a mere trespasser, without right of any kind in the possession of the premises. Province v. Lovi, 4 Okla. 672, 47 Pac. 476; Krause v. Means, 12 Kan. 335; Jay v. Granby, 15 Kan. 173; C. B., etc., Co. v. Hardenbrook, 21 Kan. 440; Stevens v. Ballou, 25 Kan. 618. One who is in equitable possession of land, and holding the same by bond from and under any person claiming title by a deed duly authenticated and recorded, is entitled, under the second clause of Sec. 601 of the Code of 1868, to the benefits of the Occupying Claimant's Law. Where there is duly recorded a regular succession of conveyances, which appear upon their face in proper form and valid, from the original vendee of the government, but no title is actually passed by reason of personal disability to convey in some grantor, the party in equitable possession and claiming by said chain of title, is entitled under the last clause cf said Sec. 601, to the benefits of the act." Krause v. Means, 12 Kan. 265; North v. Moore, 8 Kan. 103., Sec. 1166. Instances where occupant not allowed for im provements. It has been held that a quitclaim deed from a mere trespasser, although duly recorded, does not make a "plain and connected title in law or equity" which entitled a party to relief under the first clause of the Occupying Claimant Law of Kansas.* An Indian owner of land, under the treaty and stipulations which provided that land shall be exempt from levy, taxation or sale, and shall be alienable in fee or leased, or otherwise disposed of, only to the United States, or to persons then being members of the Pottawatomie tribe, and by an Indian subject, with the permission of the President, under such regulations as the secretary of the interior shall direct, cannot be compelled to pay for improvements on the premises under the Occupying Claimant Act." The purchaser of real property bound by a judgment lien of which he had knowledge at the time of the purchase, is not entitled to the benefit of the Occupying Claimant Act against a purchaser at a judicial sale in proceedings to enforce the lien." An agent who rented land for a nonresident, made a contract for its sale without authority from the owner. The purchaser went into possession under the contract and made Jay v. Granby, 15 Kan. 172. 5 Maynes v. Veale, et al., 20 Kan. 374. "June 20, 1871, N purchased from the State of Kansas a tract of school land, made two annual payments, and then defaulted. Subsequently, the land was assessed for taxes and sold therefor to the county. Thereafter, B paid to the county treasurer the full amount of the delinquent taxes, took an assignment of the sale certificate from the county, and then paid the balance due to the State school fund, and upon payment of this balance, received from the proper 341; improvements without the knowledge or consent of the principal. The owner repudiated the contract of sale. In this instance the owner was not chargeable with the value of the improvements made by said purchaser." Sec. 1167. Improvements for which the occupant may be paid. Under the Occupying Claimant Law, the party in possession is entitled to pay for all lasting and valuable improvements, and such improvements would include a sidewalk extending along the side of the property where the sidewalk was necessary to the property, or ordered or directed by law, or by the ordinance of a city. In other instances, it has been held that the erection of a house, is placing on real estate a valuable and lasting improvement; in another instance, the replacing of old buildings with new and better ones constitutes a lasting and valuable improvement. In another case, the placing of an additional floor in a building; in another, the digging of a well; in another, the erection of fences; in another, the clearing of unimproved lands; in another, the planting of fruit trees." Sec. 1168. The right to set off rents against the value of improvements. The Supreme Court of the State of Kansas, in a very interesting decision, construing the law as it existed in that State, stated that the Occupying Claimant Law, as it then existed, was passed by the Legislature in 1868, except that sections 601 and 608 of said law were amended in 1873. Said sections 601 and 608 had the force and effect to so modify the other sections of the Occupying Claimant Law that the occupying claimant who had made lasting and valuable im 7 Topliff v. Shadwell, 68 Kan. 317, 74 Pac. 1,120. 8 Hentig v. Reddin, 38 Kan. 496, 16 Pac. 821. 9 Pacqueth v. Pickness, 19 Wis. 219; Petit V. Flint, 78 N. W. (Mich.) 554; Parker v. Western, 48 N. J. Eq. 94; Cosgrove v. Merz, 37 Atl. 704 (R. I. 1897). provements on the land, and who is entitled to the benefit of the Occupying Claimant Law will never forfeit his right to the improvements, or else to compensation therefor, and no writ of eviction could ever be issued against him, to dispossess him until he had been paid the assessed amount of his improvements; but said sections 601 and 608 do not so modify or change the Occupying Claimant Law as to take away the right of the successful claimant, who has been adjudged to be the owner of the land to elect to take the value of the land instead of the land itself; and under the Occupying Claimant Law as it now exists, it is the duty of the court to permit such successful claimant and owner to elect to take the value of the land instead of the land itself, if the owner so chooses, and to fix some reasonable time within which the occupying claimant shall pay to the owner the value of the land as assessed by jury.10 Sec. 1169. Tax title which will support the claim for improvements. The title, by which the successful claimant succeeds against the occupying claimant, in all cases of lands sold for taxes, by virtue of any of the laws of this State, shall be considered an adverse and better title, under the provisions of this article, whether it be the title under which the taxes were due, and for which said land was sold, or any other title or claim whatever; and the occupying claimant holding possession of land sold for taxes, as aforesaid, having the deed of a collector of taxes or county clerk for such sale for taxes, or a certificate of sale of said land from a collector of taxes or a county treasurer, or shall claim under the 10 Stevens v. Ballou, 27 Kan. 63. In Deitzler v. Wilhite, 55 Kan. 200, 40 Pac. 272, the defendant took possession under a void tax deed of a vacant lot and erected a valuable house thereon. The lot without improvements had but a trifling rental value. With improvements it was worth $12.00 per month. Held, that the plaintiff has no right, either under the Occupying Claimant's Act, or the principles of equity, to rent for the improvements erected by the defendant accruing prior to the service of summons in the action. person or persons who hold such deed or certificate, or any other title or claim whatever, shall be considered as having sufficient title to said land to demand the value of improvements under the provisions of this article.11 Sec. 1170. Construction of the occupying claimant statutes. The Supreme Court of Kansas adopts a broad and liberal construction of this statute, holding that the act rests on the broadest equity, and should receive a liberal construction.12 The adjustment of the rights of occupying claimants is a matter of equitable cognizance; and courts may, in addition to the relief provided by statute and as supplementary thereto, make such orders in such cases as shall be equitable and just in matters not specifically provided for by the statute.13 Sec. 1171. Occupying claimant's law-Specific findings of the court Three disinterested freeholders, appraisement Jury impaneled, when. The court rendering judgment in any case provided for by this article against an occupying claimant, shall, at the request of such occupying claimant, for the benefit of the 11 Snyder, 6,129; Wilson, 4,793; Kansas, 5,089 (1901), identical. Under the Kansas statute, a purchaser at a tax sale, whose title in an ejectment action is adjudged defective, is entitled to a recovery of all taxes paid by him and interest thereon, whether paid within three years before the commencement of the action or not. A party is not entitled to the benefit of the Occupying Claimant Act, or to a recovery for the value of the improvements made by him, unless at the time of such improvements he has the full and actual possession. He may not go on land in possession of another and make improvements and receive compensation therefor, but must first acquire full and actual possession. Condadt v. Myers (Kan.), 2 Pac. 858; see, also, Stebbins v. Guthrie, 4 Kan. 302; Bemis v. Becker, 1 Kan. 248; Mercer v. Justice, 63 Kan. 225, 65 Pac. 219; Hill v. Allison (Kan.), 100 Pac. 651. 12 Stebbins v. Guthrie, 4 Kan. 302; Bemis v. Becker, 1 Kan. 248. 13 Mercer v. Justice, 63 Kan. 225, 65 Pac. 219. |