The guardian of an Indian minor appointed in a County of Kansas,
other than that in which the land was situated, gave a deed to his
ward's property; the grantees did not take possession or exercise
any act of ownership for thirty years, when the original owner took
possession of the land which was still vacant and unimproved, and
for the first time asserted the invalidity of his guardian's deed;
thereupon the grantees under the guardian's deed brought ejectment;
the defendant answered by general denial and also by cross-petition
asked for equitable relief quieting the title and declaring his
guardian's deed void; the state court held the deed void but
awarded possession to the grantees thereunder on the ground of the
ward's laches.
Held error; that, in an action of ejectment, plaintiff
must recover on the strength of his own title, and not on the
weakness of defendant's, and that the rule is not affected in this
case by the fact that the defendants, by cross-petition, had asked
for equitable relief.
This was an action of ejectment brought September 22, 1900, in
the District Court of Wyandotte County by defendants in error, who
were plaintiffs below, to recover possession of certain lots of
land in the City of Argentine. The case was tried upon an agreed
statement of facts, substantially as follows:
The land was patented December 28, 1859, to Susan Whitefeather,
as the head of a family consisting of herself and her son, George
Washington, who were members of the Shawnee tribe of Indians. The
patent was issued under the treaty of May 10, 1854 (Indian
Treaties, p. 792), with the Shawnees. Whitefeather died prior to
July 10, 1862, and her son, George Washington, inherited the land.
On November 27, 1867, he being then fourteen years of age, the
Probate Court of Johnson County appointed Jonathan Gore as his
guardian, though the land was in Wyandotte County. In these
proceedings Washington is described as the minor heir of George and
Judy
Page 198 U. S. 167
Washington. Under such appointment, the guardian sold the land
to one Joel F. Kinney for $2,000, executing to him a guardian's
deed, which was approved by the Secretary of the Interior May 21,
1869, and the title so acquired by Kinney passed by a series of
conveyances to the plaintiffs Green. In these proceedings for a
sale, Gore described himself as guardian of George Washington, the
minor heir of Susan Whitefeather, deceased. Washington remained a
member of the Shawnee tribe until September 26, 1900, when he was
made a citizen of the United States. He took no steps to impugn the
validity of the guardian's deed until June 25, 1895, when,
according to the agreed statement of facts, the defendant Dunbar
took possession of the land as his agent. Up to this time, it had
remained vacant and unimproved. Plaintiffs recovered judgment,
which was affirmed by the supreme court. 66 Kan. 557.
MR. JUSTICE BROWN delivered the opinion of the Court.
The deed of Jonathan Gore, guardian, to Joel F. Kinney, dated
October 14, 1868, of property situated in Wyandotte County, was
attacked upon the ground:
1. That Gore was never appointed guardian of the defendant,
George Washington, who was the son of Susan Whitefeather, but was
appointed by the Probate Court of Johnson County as the guardian of
George Washington, while another person, named Elizabeth Longhil,
was, on July 9, 1862, appointed by the Probate Court of Wyandotte
County the guardian of apparently another George Washington, the
minor son of George and Judy Washington, who lived and owned land
in that county. Indeed, the records are in a hopeless state of
confusion.
Page 198 U. S. 168
2. Because the guardian's deed was executed and delivered five
months before he had obtained authority from the probate court to
make it.
3. Because the petition of the guardian to sell the land did not
describe the property, and because it was void on its face.
Not only did this not involve a federal question, but, in its
opinion, the court assumed, for the purposes of the case, that the
guardian's deed was void for want of jurisdiction, and placed its
decision solely upon the ground that Washington had been guilty of
such laches as would bar recovery.
The only federal question turns upon the right of George
Washington, a Shawnee Indian, and one of that class of persons who
are aptly described as "wards of the nation," to avail himself of
the Whitefeather patent, notwithstanding his assumed laches in
taking possession thereunder. We are much embarrassed by the
failure of the defendants in error to file a brief. But we do not
understand how the defense of laches is pertinent to the case. The
action is ejectment. The plaintiffs must recover on the strength of
their own title, and not upon the weakness of the defendants'. The
only title set up by the plaintiffs is that derived from the deed
of Jonathan Gore, guardian of the defendant Washington, which is
assumed by the supreme court to be void. The plaintiffs did not
show that they were ever in possession of the land, which appears
to have been vacant and unoccupied until Dunbar took possession for
the defendant Washington, in June, 1895. The plaintiffs are not
shown to have exercised acts of ownership, or even to have paid
taxes. We do not understand the materiality of the suggestion that
the defendants have lost their rights to the land by the laches of
George Washington, the Indian. Laches is a defense often set up in
courts of equity in bar of plaintiffs' claim, but here it is set up
by the plaintiffs, as a weapon of attack, although the defendants
are the only parties who are or have been in possession of the
land. They have shown plaintiffs' title to be void, and that they
have been in possession of the land for five years. They are
entitled to
Page 198 U. S. 169
stand upon their rights. As the deed was void, no affirmative
action on the part of George Washington was necessary. Indeed, as
plaintiffs took no action under the guardian's deed to Kinney for
over thirty years, it would appear that they were guilty of greater
and more inexcusable delay than the defendants.
The only difficulty arises from the cross-petition of the
defendants, incorporated with their answer, in which they demand
that their title be quieted, and that plaintiffs be enjoined from
setting up or making any claim to the property. If this were an
original petition by defendants in possession, to remove a cloud
from their title, it is entirely possible that the court might find
that they had been guilty of such laches as would dissentitle them
to recover; but the petition of plaintiffs in the case is an
ordinary petition in ejectment, praying for possession of the land
as against the defendants, for damages, and for an injunction
pending trial. The case was tried by the court without a jury, as
an ordinary action of ejectment, and recovery decreed in favor of
the plaintiffs for possession of the property, with costs. No
mention was made in the opinion or judgment of the cross-petition
of the defendants.
We do not see how the case can be treated other than as an
ordinary action of ejectment. In the case of
Cheesebrough v.
Parker, 25 Kan. 566, it was held that, where, under the
practice in Kansas, an action is commenced for the recovery of real
estate, the right of the plaintiff to demand a second trial under
the statute is not taken away by the addition to the petition of a
claim for mesne profits, nor by the fact that the defendants set up
an equitable defense and claimed equitable relief in the answer. In
delivering the opinion of the court, MR. JUSTICE BREWER, now of
this Court, observed: "Under a general denial" (in an action of
ejectment)
"every possible defense may be interposed. If, instead of such
general denial, the defendant sets out in detail an equitable
defense, this does not change the character of the action or
abridge the rights of the plaintiff. It is a grand mistake to
suppose that, by setting
Page 198 U. S. 170
up in an answer an equitable defense to an action for the
recovery of real estate, either the plaintiffs' right to a jury
trial, or a second trial, under the statute, can be abridged.
Whatever effect such defense may have upon defendants' rights, the
plaintiffs' are unchanged. They have commenced an action under the
statute for the recovery of real property, and no rights given by
such statute can be taken away by the character or form of the
defense."
The substance of the opinion is that an action of ejectment must
be tried as at law, notwithstanding that an equitable claim or
defense is set up by one of the parties.
Had the plaintiffs taken possession of the land under their
guardian's deed, and an action been brought by the Indian, they
might perhaps have pleaded in defense laches or the statute of
limitations; but as the property remained vacant and unimproved for
over twenty years, we do not see why the defendants do not stand in
a position to avail themselves of the fact that the plaintiffs'
only title is derived from a void deed, especially in view of the
fact that the defendant Washington shows a patent to the land to
his mother, Susan Whitefeather, and that he is her only heir. The
record presents the curious anomaly of a recovery by plaintiffs,
who have neither title nor prior possession, against defendants,
who have both.
Had the defendants, after taking possession, filed a bill to
quiet their title and remove the cloud created by the guardian's
deed, a different question would have been presented.
The judgment of the Supreme Court of Kansas is therefore
reversed, and the cause remanded to that court for further
proceedings not inconsistent with this opinion.
