Wells, J.
This is an action brought in the District Court of Marshall County, Kansas, by the Marysville Investment Company, a corporation, against the defendants herein, for the possession of certain lots in the town of Palmetto, a part of the city of Marysville, Marshall County, Kansas, and for the rents and profits thereof. The verdict was for the defendants. The plaintiff to prove its title introduced :
First. The patent from the United States to Joshua E. Clardy, as probate judge of Marshall County, Kansas, in trust for the use and benefit of the occupants of the town site of Palmetto, according to their respective interests under the act of Congress of May [410]*41023, 1844 (U. S. Stat. at Large, vol. 5, p. 657). Second. A deed from Joshua E. Clardy, probate judge of Marshall County, Kansas Territory, dated the twenty-eighth day of October, 1858, to certain parties therein designated as members of the Palmetto Town Company. Third. A series of deeds from the larger part of the grantees in the above-mentioned deed, their heirs, legal representatives and assigns, to the plaintiff in error herein, quitclaiming unto said company the land described in plaintiff’s petition, it being a part of the same land described in the patent to the probate judge and in the deed from the probate judge to the grantees therein. These deeds pretended to convey to the plaintiff in error, the undivided forty two sixtieths of the property conveyed by the probate judge. The defendants substantially admit that their title is only a possessory one, being founded as to part of the lots, on void tax deeds.
The principal question in this case is in relation to the deed from the probate judge to the parties therein described as grantees. The defendants claim in substance that the deed from the probate judge, under an act of Congress for the relief of citizens of towns upon the lands of the United States under certain circumstances, approved May 23, 1844 (U. S. Stat. at Large, vol. 5, p. 657), and an act to regulate the entries and disposal of town sites (Laws Of Kansas 1857-’58, ch. 72, p. 399), should have been made to the Palmetto Town Company, that company being the party legally entitled to the same. It was further contended by the defendants that the deed from the probate judge was intended to convey the property to the Palmetto Town Company, and that that was supposed by the parties to be its legal effect. A large amount of evidence was introduced tending [411]*411to sliow that the deed in controversy was made, acknowledged and delivered with that view; that the Palmetto Town Company assumed control of the property, subdivided it into lots and made a large number of conveyances thereof, and that the individual members of the town company never asserted or claimed any interest in the property of the town company until long after the town company, as a corporation, became extinct by lapse of time.
The Supreme Court, in Investment Co. v. Munson (44 Kan. 491), had this identical deed before it for consideration. In that case this plaintiff was claiming, through the town company, under this deed, a title to the lots in controversy in that action ; and the court held that the Palmetto Town Company was created by an act of the Legislature, approved February 5, 1857 (Laws 1857, p. 353), which failed to provide the duration of its existence, that it ceased to exist ten years after its creation, and that it was therefore powerless to execute a conveyance of real estate at the date of the deed offered in evidence. After the deed from the town company had been offered and excluded by the court, the plaintiffs offered a deed from F. J. Marshall, one of the grantees in said deed from the probate judge, purporting to convey his interest in the land that had been entered as the Palmetto town site, including all the lots remaining unsold or which had been conveyed by the Palmetto Town Company. This deed was rejected by the court below, as were a number of other deeds of like character executed by the grantees mentioned in the deed from the probate judge, and who are therein described as members of the Palmetto Town Company. It was urged that the deeds were incompetent because the only title which the grantors had in the property was derived [412]*412from the deed of the probate judge to F. J. Marshall and others, and that, as the deed of the probate judge does not purport to convey title to the Palmetto Town Company, but by its terms undertakes to convey to F. J. Marshall and others as individuals, such conveyance was not in accordance with the rules and regulations prescribed by the Legislature of the Territory of Kansas, relating to the entry and disposal of town sites ; and the court below held as a matter of law, that the deed from the probate judge was ineffectual to convey any title to the grantees named therein as individuals, and as they individually acquired no title by that deed they could not as individuals convey any title to the Marysville Investment Company. This the Supreme Court held was error, saying :
“The probate judge having made the deed to these individuals, it will be presumed, in the absence of evidence to the contrary, that the parties to whom the deed was made were occupants, and entitled to a conveyance, and that the town company was not an occupant nor entitled to a conveyance, . . . The rights of the parties and the effect of the conveyances cannot, however, be determined in this case. The testimony was tcut short on the exclusion of the conveyances referred to, and as the rights and relations of F. J. Marshall and other grantees in and to the town site in question were not fully disclosed, we will not at this time undertake to define their rights or the effect of the conveyances which they made.”
In the case under consideration the questions contested by the defendants were, that the deed in controversy was made intending to convey the property to the Palmetto Town Company; that the deed ivas delivered to the town company, accepted by it, and the expenses of platting and managing the property paid by the company; and, that the individual members never claimed the property as their own, but claimed [413]*413it as the property of the company, and were estopped from asserting personal ownership therein.
In Winfield Town Co. v. Maris (11 Kan. 128), the United States statute in question ivas held to be intended for the benefit of those actually occupying the town site by settlement and improvement, and to secure to them severally, at the minimum price, all lands actually occupied by them, and the benefit of the sale of such other lands within the limits of the town as were not actually occupied ; and it was held that while the state authorities have the right to provide the rules and regulations by which said trust is to be executed, yet they cannot change the trust by substituting other beneficiaries than those indicated in the act of Congress,— the court adding, “The law was made for the benefit of the occupants of the town, and not for speculators.” This decision was followed in the case of Independence Town Co. v. DeLong (11 Kan. 152).
In the case of Sherry v. Sampson (11 Kan.
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Wells, J.
This is an action brought in the District Court of Marshall County, Kansas, by the Marysville Investment Company, a corporation, against the defendants herein, for the possession of certain lots in the town of Palmetto, a part of the city of Marysville, Marshall County, Kansas, and for the rents and profits thereof. The verdict was for the defendants. The plaintiff to prove its title introduced :
First. The patent from the United States to Joshua E. Clardy, as probate judge of Marshall County, Kansas, in trust for the use and benefit of the occupants of the town site of Palmetto, according to their respective interests under the act of Congress of May [410]*41023, 1844 (U. S. Stat. at Large, vol. 5, p. 657). Second. A deed from Joshua E. Clardy, probate judge of Marshall County, Kansas Territory, dated the twenty-eighth day of October, 1858, to certain parties therein designated as members of the Palmetto Town Company. Third. A series of deeds from the larger part of the grantees in the above-mentioned deed, their heirs, legal representatives and assigns, to the plaintiff in error herein, quitclaiming unto said company the land described in plaintiff’s petition, it being a part of the same land described in the patent to the probate judge and in the deed from the probate judge to the grantees therein. These deeds pretended to convey to the plaintiff in error, the undivided forty two sixtieths of the property conveyed by the probate judge. The defendants substantially admit that their title is only a possessory one, being founded as to part of the lots, on void tax deeds.
The principal question in this case is in relation to the deed from the probate judge to the parties therein described as grantees. The defendants claim in substance that the deed from the probate judge, under an act of Congress for the relief of citizens of towns upon the lands of the United States under certain circumstances, approved May 23, 1844 (U. S. Stat. at Large, vol. 5, p. 657), and an act to regulate the entries and disposal of town sites (Laws Of Kansas 1857-’58, ch. 72, p. 399), should have been made to the Palmetto Town Company, that company being the party legally entitled to the same. It was further contended by the defendants that the deed from the probate judge was intended to convey the property to the Palmetto Town Company, and that that was supposed by the parties to be its legal effect. A large amount of evidence was introduced tending [411]*411to sliow that the deed in controversy was made, acknowledged and delivered with that view; that the Palmetto Town Company assumed control of the property, subdivided it into lots and made a large number of conveyances thereof, and that the individual members of the town company never asserted or claimed any interest in the property of the town company until long after the town company, as a corporation, became extinct by lapse of time.
The Supreme Court, in Investment Co. v. Munson (44 Kan. 491), had this identical deed before it for consideration. In that case this plaintiff was claiming, through the town company, under this deed, a title to the lots in controversy in that action ; and the court held that the Palmetto Town Company was created by an act of the Legislature, approved February 5, 1857 (Laws 1857, p. 353), which failed to provide the duration of its existence, that it ceased to exist ten years after its creation, and that it was therefore powerless to execute a conveyance of real estate at the date of the deed offered in evidence. After the deed from the town company had been offered and excluded by the court, the plaintiffs offered a deed from F. J. Marshall, one of the grantees in said deed from the probate judge, purporting to convey his interest in the land that had been entered as the Palmetto town site, including all the lots remaining unsold or which had been conveyed by the Palmetto Town Company. This deed was rejected by the court below, as were a number of other deeds of like character executed by the grantees mentioned in the deed from the probate judge, and who are therein described as members of the Palmetto Town Company. It was urged that the deeds were incompetent because the only title which the grantors had in the property was derived [412]*412from the deed of the probate judge to F. J. Marshall and others, and that, as the deed of the probate judge does not purport to convey title to the Palmetto Town Company, but by its terms undertakes to convey to F. J. Marshall and others as individuals, such conveyance was not in accordance with the rules and regulations prescribed by the Legislature of the Territory of Kansas, relating to the entry and disposal of town sites ; and the court below held as a matter of law, that the deed from the probate judge was ineffectual to convey any title to the grantees named therein as individuals, and as they individually acquired no title by that deed they could not as individuals convey any title to the Marysville Investment Company. This the Supreme Court held was error, saying :
“The probate judge having made the deed to these individuals, it will be presumed, in the absence of evidence to the contrary, that the parties to whom the deed was made were occupants, and entitled to a conveyance, and that the town company was not an occupant nor entitled to a conveyance, . . . The rights of the parties and the effect of the conveyances cannot, however, be determined in this case. The testimony was tcut short on the exclusion of the conveyances referred to, and as the rights and relations of F. J. Marshall and other grantees in and to the town site in question were not fully disclosed, we will not at this time undertake to define their rights or the effect of the conveyances which they made.”
In the case under consideration the questions contested by the defendants were, that the deed in controversy was made intending to convey the property to the Palmetto Town Company; that the deed ivas delivered to the town company, accepted by it, and the expenses of platting and managing the property paid by the company; and, that the individual members never claimed the property as their own, but claimed [413]*413it as the property of the company, and were estopped from asserting personal ownership therein.
In Winfield Town Co. v. Maris (11 Kan. 128), the United States statute in question ivas held to be intended for the benefit of those actually occupying the town site by settlement and improvement, and to secure to them severally, at the minimum price, all lands actually occupied by them, and the benefit of the sale of such other lands within the limits of the town as were not actually occupied ; and it was held that while the state authorities have the right to provide the rules and regulations by which said trust is to be executed, yet they cannot change the trust by substituting other beneficiaries than those indicated in the act of Congress,— the court adding, “The law was made for the benefit of the occupants of the town, and not for speculators.” This decision was followed in the case of Independence Town Co. v. DeLong (11 Kan. 152).
In the case of Sherry v. Sampson (11 Kan. 611), the court held, in a case in relation to this same town site, that the probate judge was the proper party to enter the land, and after entry he held it in trust for the benefit of those actually occupying the town site, according to their respective interests, and it is his duty to make deeds therefor to the actual occupants respectively; and when he has made a deed for any portion thereof to any person, it will be presumed, in the absence of anything to the contrary, that he has made the deed to the proper person.
In the case of Jackson v. Winfield Town Co. (23 Kan. 542), the question as to what should become of the unoccupied lots of a town site entered under said act was suggested but not decided.
In the case of Rathbone v. Sterling (25 Kan. 444), [414]*414the court held that the award of commissioners and deed of the probate judge were not conclusive as against an actual possessor and sole occupant of a lot in such town site ; but the argument in the opinion indicates, though not expressly so deciding, that the award of the commissioners and the deed of the probate judge are conclusive in relation to the distribution of the unoccupied lots, unless the same were impeached.
In Guffin v. Linney (26 Kan. 717), the court held that the title of the actual occupant is superior to the title under the deed from the probate judge. These are all the decisions of our Supreme Court we have been able to find, bearing on the issues of this case, and from them it seems to us we are justified in deducing the following general principles :
First, an actual occupant of such a town site is entitled to the portion thereof actually occupied by him, regardless of the decision of the commissioners or the deed of the probate judge. Second, the decision of the commissioners and the deed of the probate judge are conclusive and binding, as to the distribution of the unoccupied lots among the actual occupants of the town site or for their general good, unless attacked for fraud or by some direct proceedings within a reasonable time. Third, that a corporation, such as the Palmetto Town Company, may be, through its members acting for it only, and not in their individual right, the sole and exclusive occupant of a town site, and under such circumstances the probate judge should convey the site to the company.
As the principal question in this case is, whether or.not the deed from the probate judge conveyed any title to the grantees therein named, the understanding , and circumstances under which the deed was [415]*415made and accepted, and the action of the grantees thereunder, were proper subjects of inquiry, and any competent evidence tending to establish the defendants’ claim in relation thereto was proper. If the grantees in the deed from the probate judge accepted the same only as officers and members of the Palmetto Town Company, and afterwards for a great number of years held out to the world and asserted that said company was the exclusive owner of said property, and caused the people on said town site to believe and act upon the belief that such was the fact, they are now estopped from claiming title in themselves thereunder.
The instructions of the court presented to the jury these issues plainly and fairly, and the jury found for the defendants. We think the instructions of the court were correct upon the main issue in the case, and that no reversible error appears therein.
The judgment of the court below will be affirmed.
McElroy, J., concurring.