Commissioners of Saline Co. v. Anderson.

and perform all the duties thereof pending any litigation concerning the same. The State v. Durkee, 12 Kans. 308, 314; Leach v. Cassidy, 23 Ind. 449. And all his acts connected with the office will be valid so far as the public and third persons are concerned, unless they are void for some other reason than merely that he is only an officer de facto. This last proposition is so nearly axiomatic that it needs no citation of authorities to sustain it. As Chief Justice CAMPBELL says, in the Michigan case (p. 181), "The doctrine of the validity of the acts of officers de facto has been carried as far as possible. In The State v. Williams, 5 Wis. 308, it was held to make good the approval of a statute by a governor usurping that office. In Venable v. Curd, 2 Head (Tenn.), 582, it was carried to the questionable extent of making good the action of a court under an invalid statute. In Doty v. Gorham, 5 Pick. 487, where an officer de facto had made a sale, it was held that in a suit against himself, with others, for removing property thus sold, he could justify under the sale. In Leach v. Cassidy, 23 Ind. 449, it was held that a school officer de facto could not have his title questioned in an application made by him for a mandamus to compel the payment to him of school moneys by local officers. In Desmond v. McCarthy, 17 Iowa, 525, it was held that in a replevin by an officer de facto, to recover the papers belonging to his office, which had been withheld on a claim that he was not the lawful officer, his title could not be questioned, but that the only inquiry on that must be in proceedings to oust him." See, also, Hunter v. Ferguson, 13 Kans. 463, 475; Rheinhart v. The State, 14 id. 318; Higby V. Ayers, id. 331, 338.

Now as Wildman was an officer de facto, holding under color of title, every person had a right to recognize him as a legal and valid officer, and to treat him as such. The public, the county, the county commissioners, and private individuals, had a right to do business with him as an officer, and to pay him for his services, if they chose, without taking any risk of having to pay for such services a second time. It might be greatly to the interest of the public, or of the individuals doing business with such officer, to pay him when his fees or salary become due; and should they not be allowed to consult the interest of the public and their own interest to so pay him? It is not their fault that he is wrongfully in the possession of the office; and how are they to know whether he is in the possession of the office rightfully or wrongfully? Are they

1

Commissioners of Saline Co. v. Anderson.

bound to know who is entitled to the office in advance of any final adjudication of the question by the courts? Are they bound to anticipate the decision of the courts? And are they bound to decide the question for themselves, as it thus comes up incidentally and collaterally in the payment of fees or salary? And if they should determine that the courts would eventually decide against the officer de facto, must they refrain from paying him any fees or salary at perhaps a great loss to themselves, or to the public? Judge COOLEY says, in said Michigan case (p. 187), that "The public, who have an interest in the continuous discharge of official duty, and whose necessities cannot wait the slow process of a litigation to try the title, have a right to treat as valid the official acts of the incumbent, with whom alone, under the circumstances, they can transact business. This rule is an obvious and necessary one for the protection of organized society; for, as was said in Weeks v. Ellis, 2 Barb. 325, the affairs of society cannot be carried on unless confidence were reposed in the official acts of persons de facto in office. And private individuals, in controversies between themselves, are not permitted to question the acts of an officer de facto, for the further reason that to do so would be to raise and determine the title to his office in a controversy to which he was not a party, and in which he could not be heard." Now, the interest of the public in the "continuous discharge" of official duties would authorize the payment of the legal fees or salary for the performance of such official duties to the person performing the same; and to allow a person not in the possession of the office, but who claims to be entitled thereto, to sue for the fees or salary thereof, would be to allow the question of the title to the office to be raised and determined against the officer de facto "in a controversy in which he was not a party, and in which he could not be heard." Such certainly could not be allowed. But .f this suit can be maintained, then it would be allowed. The salary of a county clerk is payable quarterly (Laws of 1875, p. 137, § 5); and if Anderson can main tain this action, then he could have maintained an action against the county commissioners for the first quarter's salary on and at any time after April 10, 1876, for it was due then, although Wildman was still in the possession of the office, and although his title to the office had not yet been finally adjudicated, but was still pending in the courts. It may be that Wildman could not have recovered the salary in an action brought by himself (though upon

Central Branch Railroad Company v. Fritz.

this question we do not wish to express any opinion); for it may be, that as between himself and others, where he has to rely upon his own title to the office, the question of his title could be raised, and his title held to be void; though upon this question we express no opinion.* But that is not this case. He is not suing for his salary in this case. He is not a party to this suit, nor has he any interest therein. The question of his title to the office arises between third parties in this case-between Anderson and the county; and does not arise but only incidentally and collaterally. We do not think that the question can be raised and litigated between such parties and in such a manner. It must be remembered that Wildman was not a mere usurper; but he was an officer de facto, having possession of the office under color of title. What would be the rule if he were a mere usurper it is not necessary for us to decide in this case. All that we now decide is, that where a person is in possession of the office of county clerk, under color of title, and is the county clerk de facto, and claims to be the county clerk de jure, and the board of county commissioners pays to him the salary due to the rightful incumbent of such office, the county clerk de jure has no action against the county board for such salary, and this, notwithstanding the fact that the county board may have known at the time they paid said salary that the question as to the title to the office was in litigation, and notwithstanding the fact that the county clerk de facto may be insolvent. The remedy of the county clerk de jure in such a case is an action against the county clerk de facto.

The judgment of the court below will be reversed, and the cause remanded with the order, that judgment be rendered in favor of the defendant below, and against the plaintiff below, for costs. All the justices concurring.

Judgment reversed.

CENTRAL BRANCH RAILROAD COMPANY V. FRITZ.

(20 Kans. 430.)

Fixtures-dwelling-house, when personalty.

A and B made a contract, by which A sold to B a lot of land, and B was to enter into possession and build a dwelling-house and make improvements,

Central Branch Railroad Company v. Fritz.

which were all to remain on the land until B should fulfill, and if he should not fulfill, all such improvements should become the property of A. B not having fulfilled, assigned the contract to C, who entered and built a small wooden dwelling-house on low blocks of wood. Afterward C removed the house into the highway, assigning the contract to D, and sold him the house and he removed it to other land of his own, and erected it on a stone foundation. Held, that A could maintain replevin for the house against D.

REP

EPLEVIN. The opinion states the facts. had judgment.

D. Martin and A. S. Everest, for plaintiff.

W. S. Hoaglin, for defendant.

The defendant

VALENTINE, J. This was an action of replevin, brought by the Central Branch Union Pacific Railroad Company, and Ralph M. Pomeroy, as trustee, etc., against Henry T. Fritz, for the recovery of a house. The case was submitted to the court below upon the pleadings and upon an agreed statement of facts; and upon said pleadings and agreed statement of facts the court below found in favor of the defendant and against the plaintiffs, and rendered judgment accordingly. The principal material facts are as follows; The railroad company owned a certain piece of land, containing eighty acres, more or less. It agreed in writing to sell the same upon certain terms and conditions, to John C. Archer. The principal of said terms and conditions, so far as they have any application to this case, are as follows:

"The first party hereby agrees to sell unto the second party said land for $952, with interest - the principal to be paid in eight equal annual payments, and the interest to be paid annually in advance. Archer is to take immediate possession of the land, and agrees to improve and cultivate the same; and agrees that no wood shall be cut on the land except for the erection thereupon of buildings and fence, and the necessary purposes of fuel for the family residing thereon, and that all improvements placed upon said premises shall remain thereon, and shall not be removed during the continuance of this contract; and further, that he will make punctual payment of the above sums as each of the same respectively becomes due, and that he will regularly and seasonably pay all such taxes and assessments as may be lawfully imposed on said premises. But in case the second party shall fail to make the

Central Branch Railroad Company v. Fritz.

payments aforesaid, and each of them punctually, and upon the strict terms and times above limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party, shall become null and void, and all rights and interests hereby created, or then existing in favor of the second party, or derived from him, shall cease and determine, and the right of possession, and all equitable and legal interests in the premises hereby contracted, shall revert to and revest in said first party, without any declaration of forfeiture, or act of re-entry, or any other act by said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or improvements made, as absolutely, fully and perfectly as if this contract had never been made."

This contract was entered into on 22d March, 1872. On November 4, next following, Archer assigned the same, and all his right, title and interest in and to said land, to Samuel C. Hunt. The contract itself contemplated that it might be assigned. Hunt immediately took possession of the land and erected the house in controversy thereon. Said house was a one-story frame building, about 16 by 24 feet in size, and was set upon ten blocks of wood, the highest one being about one foot, so that said house almost touched the ground on one side, and was about one foot from the ground on the other side. Said house was built for and occupied by the said Hunt and his family as a residence on said premises, and the said Hunt and family occupied the same as their residence until about the 1st of September, 1875, at which time he removed said house from said premises, and into the highway adjoining said. premises; and three or four days thereafter said Hunt sold said house to the defendant, Henry T. Fritz, for the sum of $200, for which sum said Fritz gave to Hunt his negotiable promissory note, payable one year after date, with interest, and Hunt at the same time assigned and transferred to Fritz the said written contract originally entered into between said railroad company and Archer. Fritz then removed said house from the highway to and upon his own premises, being the west half of the north-west quarter of section 34, in township 5, of range 16, Jackson county, where the same was placed upon a permanent stone foundation, and was standing, when the same was taken by writ of replevin in this action. No payment was ever made on said land except the first annual in

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