spondent Hall did not use it. Hall, no doub, had notice of the capacity of the Ethel ditches, and of the amount of land owned by them. Under the facts of this case Hall's appropriation is subject to the prior rights of the owners of the Ethel lands, not only north of said stage road, but south of it, and to the entire tract for which the appropriation of 1872 was made. The use of sufficient water (up to about 250 inches) had become in 1872 an appurtenant to that part of said 480-acre tract that fell to David B. Ethel in said division and was conveyed by his administrator to appellant Blackman.

The second appeal is by Charles F. Ross and Mrs. Ida Ross, in which all other defendants and the plaintiffs are made respondents. Counsel for appellants assign two errors: First. The allowance to plaintiff Hall of 150 inches of water for the irrigation of his homestead consisting of 160 acres. The evidence shows that Hall had cleared and cultivated and raised hay and grain on about 140 acres of his said homestead, and that it was all susceptible of irrigation. It is also thus shown that it requires one inch of water per acre for the proper irrigation of the same. The evidence is amply sufficient to sustain the judgment awarding to Hall 150 inches of water. The evidence is

also sufficient to sustain the Judgment of the court awarding to Hall 130 inches of water for the irrigation of his desert entry. The court erred in not allowing him the 130 inches from April 1, 1885, as the evidence shows that he constructed his ditch in 1885 to cover 130 acres of said land, and his right to the use of that amount of water should date from 1885; but apparently he is satisfied, as he has not appealed. In Kirk v. Bartholomew, 2 Idaho, 1087, 29 Pac. 40, the court held as follows: "In determining the amount of water appropriated for useful or beneficial purposes, the number of acres of land claimed or owned by each party, and the amount of water necessary to the proper irrigation of the same, should be taken into consideration." It is contended that the court erred in not allowing Charles F. and Ida Ross two inches of water per acre for the irrigation of their land. Upon a careful examination of the evidence we conclude that the action of the court in allowing them one and one-half inches per acre ought not to be disturbed. It is contended by counsel for the Ross appellants that the latter part of section 12 of an act entitled "An act providing for the appropriation and distribution of water; the condemnation of lands for canals, ditches and conduits; empowering the boards of county commissioners to establish a maximum rate for the use of water; and repealing all acts and parts of acts in conflict with the provisions of this act" approved Feb. 25, 1899 (Sess. Laws 1899, p. 380), requires all former appropriators of water to file new notices of location in the office of the county recorder containing

the facts in said section set forth within six months after said act became a law, and that if they failed to do so they forfeited their right to the use of such water. We cannot agree with counsel in his contention. Section 10 of said act provides that all ditches, canals, or other waterworks theretofore constructed or provided, by means of which the waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed to the extent of the quantity which such works are capable of conducting, and not exceeding the amount claimed, etc. This section and the other sections of said act, taken in consideration with said provisions of said section 12, and construed in pari materia, would indicate that no forfeitures were intended by reason of a failure to comply with the provisions of said section 12. At most said provisions are only directory, and we are of the opinion that they are prospective only. The construction contended for by appellant Ross would, if adopted, result in depriving the citizen of valuable property rights without due process of law, and conflict with the provisions of the federal constitution upon that subject. We think the legislature only intended that said provisions should apply to water locat tion notices that had not theretofore been filed for record, and that they did not intend to disturb vested rights.

The third appeal was taken by plaintiff Wilson. His coplaintiffs and all of the defendants are made respondents. It is contended that the court erred in granting C. F. Ross any water whatever for the land included in his homestead entry. It appears that G. B. Ross settled upon unsurveyed land in 1867, a part of which was subsequently included in said homestead entry; that he built a dwelling house and put other improvements thereon, and constructed a water ditch and conveyed water therein from said Bennett creek to said land. Said Ross died in 1887, before the government survey was extended over said land. Said land was surveyed in 1894, and on March 9, 1895, the respondent C. F. Ross entered said land under the homestead laws of the United States. About 75 acres of said land had been irrigated by said G. B. Ross prior to his death. C. F. Ross was appointed administrator of the estate of said G. B. Ross, and took possession of said land as such administrator in 1887, and irrigated the same, and continued in possession of said land, as administrator, until he entered said land under the homestead laws of congress. It also appears from the record that he received from some of the heirs of said G. B. Ross, deceased, quitclaim deeds to whatever interest such heirs had to said lands. By settling upon said unsurveyed land of the United States and putting improvements thereon G. B. Ross acquired the preference right to enter said land when they were surveyed and

placed on the market, and after his death, under the statutes of the United States in such cases made and provided, his heirs are allowed to perfect the title thereto. And by the provisions of sections 16 and 2825, Rev. St., possessory rights are declared to be real estate, and would descend to the heirs of a deceased claimant. Sections 4552 to 4556, inclusive, give the right of action to recover possession of certain public lands not inclosed or cultivated, and have no application to the facts of this case, while the provisions of section 4041, Rev. St., apply to that feature of this case wherein Ross claims title to the G. B. Ross land and water right by deeds from the heirs of G. B. Ross, as he claims under deeds from the heirs. As the administrator took possession of said land and water right and purchased whatever rights the G. B. Ross heirs had in and to the same, we are of the opinion that he acquired the right to the use of the water that said deceased had appropriated for use thereon. One settling on the public domain may ac quire a right to the use of water for the irrigation of the land taken by him, and he may sell such right, independent of the land, or, in case of his death, such right may descend to his heirs. The court did not err in awarding to C. F. Ross water for said land as of the date it was appropriated by said deceased.

It is apparent that a new trial would entail a great expense upon the parties, and would fail to benefit them, and for that reason we think it is to the interest of all parties that the cause be remanded to the trial court, with instructions to modify the findings of fact and judgment in accordance with the views expressed in this opinion, and it is so ordered. The judgment in all other respects is affirmed. Each party is required to pay the costs made by him on this appeal.

QUARLES, C. J., concurs.

STOCKSLAGER, J., having tried this case in the court below, did not sit in this case, and took no part in the decision.

On Rehearing.

(March 14, 1902.)

PER CURIAM. The respondent Hall has filed a petition for rehearing, which we have carefully considered. We have again examined the evidence in the transcript, and find no good reason for granting a rehearing. It is not, as said respondent would seem to believe, impossible for a settler on the public domain to acquire a water right for the irrigation of certain lands prior to his filing upon or entering the same. In case of a settler who locates upon public lands, appropriates water for the reclamation thereof, and diverts such water, and by means of ditches conveys such water to and upon said

lands, prior to their entry, his water right, after entry, dates from the actual appropriation. This disposes of the real ground of the said respondent's contention for a rehearing, which we regard as untenable. The record shows that Fielding Ethel made preemption entry of 160 acres of land on Bennett creek on the 15th day of April, 1874, and on October 9, 1876, made his final proof, and on November 10, 1877, received a United States patent therefor. It is also shown that Fielding Ethel, on the 3d day of December, 1874, entered under the timber culture laws of congress 160 acres of land on said Bennett creek, and that said entry was canceled on December 4, 1876, and on March 17, 1877, said Ethel entered said land as a homestead, under the homestead laws of congress, and thereafter made final proof, and has received a United States patent therefor. It also appears that David B. Ethel entered, under the pre-emption laws of congress, 160 acres of land on said Bennett creek on April 15, 1874, made final proof, and received a United States patent therefor in 1877. Thus it is made to appear that Fielding and David B. Ethel entered under the laws of the United States 480 acres of land on Bennett creek as early as 1874, and obtained patents for the same from the United States; and it also appears that they diverted, as early as 1872, 500 inches of the waters of said Bennett creek for the irrigation of lands owned, or claimed, by them. It also appears from the complaint of the petitioner Adin M. Hall that he claims no water earlier than 1879, and as Ethel Bros. had received patents from the United States to 320 acres of their said land, and had made final proof at the proper United States land office for another 160acre tract prior to 1879, they certainly were the owners of said 480 acres of land prior to 1879, and had, prior to that date, diverted and taken upon said land water sufficient to reclaim the same. A rehearing is denied.

(64 Kan. 615)

FRAZIER v. JEAKINS.1 (Supreme Court of Kansas. March 8, 1902,) TRUSTEES-DUTIES AND LIABILITIES-GUARDIAN'S SALE-PURCHASE OF WARD'S LANDCONFIRMATION OF SALE-BONA FIDE PURCHASER-NOTICE-EJECTMENT.

1. Trustees for the sale of land will not be permitted directly or indirectly to make profit for themselves out of the trust estate.

2. The guardian of the property of a minor cannot legally buy it at his own sale; nor can his wife or her husband buy at such sale; nor, if they do, will the nonexistence of fraud and the payment of full consideration validate the purchase.

3. It seems that if a guardian, or her husband or his wife, wishes to buy at the guardlan's sale, the proper practice is to obtain leave of court to do so on a showing of reasons therefor.

4. The confirmation of a guardian's sale is res judicata as to irregularities only, and not as to matters of substance.

Rehearing denied May 9, 1902.

5. A deed that recites that the grantors are husband and wife, the names of which grantors are identical with those of the grantor and grantee in a recent guardian's deed of the same land, imparts notice to the purchaser that his grantors were also husband and wife at the date of the former deed.

6. The title of land sold and deeded by a guardian to her husband does not pass to a purchaser who has notice of their relationship, and ejectment for its recovery may be maintained by the ward.

Cunningham, J., dissenting. (Syllabus by the Court.)

In banc. Error from district court, Butler county; C. W. Shinn, Judge.

Action by Clara A. Jeakins against N. F. Frazier. Judgment for plaintiff, and defendant brings error. Affirmed.

Buck & Spencer, for plaintiff in error. Redden & Kramer, for defendant in error.

DOSTER, C. J. This was an action of ejectment to recover land which had descended to a minor on the death of her ancestor, but which had been wrongfully sold and conveyed by the minor's guardian. Serena J. Jeakins, the owner of the land, died intestate, leaving as her heirs a husband and children. One of the latter was Clara A. Jeakins, a minor. The others were adults. Mrs. Permilly Scheel was appointed guardian of the property of the minor, and thereafter maintained the ward at her expense. She purchased the interests of the adult heirs in the land, taking conveyances therefor in her own name. She procured from the probate court an order to sell the minor's interest in payment of the cost of her maintenance. She sold this interest at private sale to her husband, Carl Scheel. The sale was confirmed and guardian's deed approved. Some claims of fraud in making the sale and of lack of full consideration for the land are made by counsel, but we do not take a view of the case which requires us to advert to them. We shall treat the sale as made on fair consideration, and free from fraud in fact. About three years after the guardian's sale, Mrs. Scheel and her husband sold the entire tract to N. F. Frazier. The record of proceedings in the probate court did not disclose the relationship existing at the time of the guardian's sale between Permilly Scheel, the guardian, and Carl Scheel, the purchaser, but Frazier knew they were then husband and wife. Besides, the deed he received from them recited their relationship, and the identity of names in that deed with those of the grantor and grantee in the guardian's deed imparted a notice the equivalent of knowledge. 15 Am. & Eng. Enc. Law (2d Ed.) subject "Identity." A purchaser of land is always chargeable with the knowledge of whatever facts are suggested by the recitals in his title papers. Knowles v. Williams, 58 Kan. 221, 48 Pac. 856. Clara A. Jeakins brought ejectment against Frazier to recover her undivided interest in the land. Although the cause of action stated was not

joined with one for partition, the defendant made no objection in the court below on the ground of the irreclaimability of undivided interests by co-tenants. On the argument of the case in this court counsel for Frazier disclaimed a desire to raise the question; therefore we are not concerned with any doubts which may exist as to the right to maintain the action. Certain it is that objections to its maintenance, if any can be properly made, do not go to the jurisdiction of this court. Judgment went for plaintiff in the court below, and the defendant has prosecuted error.

The sole question in the case relates to the validity of the guardian's sale and deed of the land of her ward made to her husband, made, as before stated, on fair consideration, and free from actual fraud. Are they valid?

If not, are they of the class denominated "void," and therefore subject to collateral attack? Our judgment is they are void, and, their nullity being known to Frazier, the purchaser, no title passed to him, and therefore the collateral action will lie. Nothing in the law of fiduciary trusts is better settled than that the trustee shall not be allowed to advantage himself in dealings with the trust estate. He shall not be allowed to serve himself under the pretense of serving his cestui que trust. The most usual way in which evasions of this salutary rule are attempted is in purchases of the trust estate by or in the interest of the trustee. That such purchases shall not be allowed the realization of their purpose is the universal holding of the courts. A citation to the multitudinous decisions would incumber an opinion more than it would elucidate the rule. A large number of the cases are collected in the notes to Tyler v. Herring (Miss.) 6 South. 840, 19 Am. St. Rep. 263; Tyler v. Sanborn (Ill.) 21 N. E. 193, 4 L. R. A. 218, 15 Am. St. Rep. 97; Wilson v. Brookshire (Ind.) 25 N. E. 131, 9 L. R. A. 792; and this court, in Webb v. Branner, 59 Kan. 190, 52 Pac. 429, recently added another to the list. Nor, in such cases, does the fact that the sale and purchase were bona fide, and on full consideration, avail to constitute an exception to the rule. That was distinctly so declared in Webb v. Branner, supra, in which it was said: "It was shown that a fair price was obtained for the lot, but, there being a manifest conflict between the duties of the trustee and his personal interests, the courts, for the purpose of removing all opportunity for fraud, generally hold such transfers to be void, whether they appear to be fair or not." The above-quoted remarks imply that there may be, perhaps, exceptions to the rule; but we know of none. In fact, the main rule that a trustee may not profit himself out of the trust estate is no better settled than the subsidiary one that lack of fraud in the trustee's dealings will not validate the transaction. The fiduciary relation of trustee and cestui que trust is one which does not call

so much for rules to redress accomplished wrong as for rules to prevent its accomplishment. The one in question, therefore, is not intended to be merely remedial of wrong actually committed, but rather to be preventive or deterrent in effect. The opportunities which are open to an unfaithful trustee to advantage himself out of the trust estate are so many and so tempting and the condition of the beneficiary in the trust ordinarily so helpless and confiding, that the law gives warning in advance against all transactions out of which it is possible for the former to make gain at the expense of the latter. Hence, as was tersely and wisely said by Chief Justice Beasley in Staats v. Bergen, 17 N. J. Eq. 554, "so jealous is the law upon this point, that a trustee may not put himself in a position in which to be honest must be a strain on him." Do the foregoing considerations apply to a sale by a guardian of the ward's land to the guardian's husband or wife, as the case may be? We have no hesitation in affirming that they do. It is true that the common-law fiction of the legal identity of the husband and wife, and the very nearly complete merger of the latter in the former, does not now have recognition. In this state, as allowed by statute, the wife may contract with her husband. They may own separate estates, free from any present claim of interest by one in the property of the other, that is, as against the other; but it is not true that as to their respective possessions they are strangers in such a sense as to take a trustee's sale by one to the other from cut the operation of the rule in question. Upon the death of either of them one-half of his or her property descends under the statute to the survivor, and under the statute neither one, without the other's consent, can, by will, devise more than one-half his or her property. It is true the interest of the one in the property of the other is contingent and uncertain, and dependent on survivorship. It is true that the interest of the one in the land of the other is not of the character of any of the estates known to the common law, but it nevertheless possesses the elements of property. This was distinctly so ruled in Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245, and on the strength of the quality of property attaching to the inchoate interest of a wife in her husband's land she was allowed in that case to maintain an action to prevent its fraudulent alienation. However, over and beyond that property interest which husband and wife have in each other's estate, and which possesses the element of pecuniary value, there is a larger consideration. It was well expressed by counsel for defendant in error, who said: "The affection existing between husband and wife; the marital relation, which in a sense makes them one; the implicit confidence which each must have in the other; their natural desire for each other's material prosperity; the relation which enables one to derive and enjoy per

sonal comfort and pleasure from the property of the other, independent of the question of direct or indirect ownership in such property, are all so well recognized in law and understood by all civilized people that it would be arguing against the experience of centuries to contend that one would not be interested in the welfare of the other, and do all that could be done to enhance the pecuniary interests of the other. Therefore, by reason of the relation, no guardian could be impartial in the sale to husband or wife of the property of the ward." In Tyler v. Sanborn, supra, the supreme court of Illinois, after adverting to the fact that under the statutes of their state husband and wife may contract with each other, that the wife may own property separate from the husband, but that each has contingent interests in the other's property dependent on survivorship (being in such respects substantially like our statute), and after holding that such mutuality of interest forbade one to sell trust property to the other, further remarked: "There is, moreover, apart from this pecuniary interest, an intimacy of relation and affection between husband and wife, and of mutual influence of the one upon the other for their common welfare and happiness, that is absolutely inconsistent with the idea that the husband can occupy a disinterested position as between his wife and a stranger in a business transaction. He may, by reason of his great integrity, be just in such a transaction, but, unless his marital relations be perverted, he cannot feel disinterested; and it is precisely because of this feeling of interest that the law forbids that he shall act for himself in a transaction with his principal. It is believed to be within general observation and experience that he who will violate a trust for his own pecuniary profit will not hesitate to do it, under like circumstances, for the pecuniary profit of his wife. In our opinion, the policy of the law equally prohibits the wife of the agent, as it does the agent himself, from taking title to the property which is the subject of his agency, without the knowledge and express consent of the principal." One of the earliest cases on the particular question was Davoue v. Fanning, 2 Johns. Ch. 252. In that case it appeared that an executor had sold the testator's property to a person to be held by him in trust for the executor's wife. Chancellor Kent held that the sale could not stand, because, as he said, "whether the trustee buys in for himself or his wife, the temptation to abuse is nearly the same." In Appeal of Dundas, 64 Pa. 325, it appeared that an executor had sold part of the testator's estate to his wife. The court said: "We cannot doubt that a sale by a trustee to his own wife would be set aside on the application of the cestui que trust, not on the ground of coverture, but of her relationship to the trustee. It would be evidence of unfairness quite as much as if the sale were made to the

trustee himself, and falls within the spirit of the rule which forbids his own purchase." However, in that case the sale was allowed to stand, because the court, by previous order, had permitted the wife to become a bidder. The making of such precedent order was admitted to be within the authority of the court, but it was said: "The power is a delicate one, and should always be cautiously exercised, and the sale itself watched with jealousy." In Bassett v. Shoemaker, 46 N. J. Eq. 538, 20 Atl. 52, 19 Am. St. Rep. 435, it appeared that an executor had sold to his wife a farm of the testator. It was held that the sale should be set aside as of course, on the application of a cestui que trust. Among other things it was said: "The exclusion of the wife as a purchaser, where the husband sells as a trustee, is not so much for the reason that he may subsequently become entitled to some interest in her lands as on account of the unity which exists between them in the marriage relation. The case falls clearly within the spirit of the principle which excludes the husband himself." There are other cases the decisions of which were more or less influenced by the considerations expressed in the foregoing quotations. See Riddle v. Roll, 24 Ohio St. 572; Rome Land Co. v. Eastman, 80 Ga. 683, 6 S. E. 586; Bachelor v. Korb, 58 Neb. 122, 78 N. W. 485, 76 Am. St. Rep. 70. Admit the separate legal status of husband and wife to be as absolute and clearly differentiated as their physical lives, there is yet, as a matter of fact, an identity of interests and affections between them which utterly precludes the idea of a trustee's sale by one to the other being different in effect than a sale by the trustee to himself. To say that a husband acting in a fiduciary capacity in effecting a sale would be disposed, as against his wife, to diligence of effort in finding some one who would pay more for the trust estate than she would, is to fly in the face of nature itself, and deny the experience of the ages. Nor can we conceive of any reason why it might be different in the case of a wife were she the trustee negotiating the sale. To the rule declared by us there is but one opposing decision, so far as we are aware. It is Crawford v. Gray, 131 Ind. 53, 30 N. E. 885. The sale in question in that case was made at public auction to the wife as the highest bidder, differing in that respect from the sale under consideration by us. The opinion fails to cite any cases in its support, and, if it can be considered as applicable to private sales by trustees, we have no hesitation in declaring it unsound in principle, and opposed to all the authorities. There may be exceptional circumstances justifying sales by trustees to their wives or husbands, or even to the trustee himself. It is said that the sale under consideration was one of the exceptional character. The wife owned all the other interests in the land, and therefore could effect a better sale to her

husband as a co-tenant to be, than to a stranger. The claim is a reasonable one, but for such cases the law has a practice which must be followed. It is to apply to the court controlling the sale for leave to purchase. That was ruled in Dundas' Appeal, supra, and Bassett v. Shoemaker, supra. In Michoud v. Girod, 4 How. 503, 557, 11 L. Ed. 1076,-one of the leading authorities on the subject of purchases by trustees at their own sales,-the supreme court of the United States, considering the proper practice in such cases, ruled that: "It is that, when a trustee for one not sui juris sees that it is absolutely necessary that the estate must be sold, and he is ready to give more for it than any one else, that a bill should be filed, and he should apply to the court by motion to let him be a purchaser. This is the only way he can protect himself. There are cases in which the court will permit it."

It is said, however, that the confirmation of the sale by the probate court was a judicial approval of it, which put it in the category of res judicata, and hence beyond collateral attack. The law in this state does not give such an effect to a mere order of sale confirmation. The act concerning guardians and wards (Gen. St. 1899, c. 46, § 18) appropriates as the rules governing guardians' sales those prescribed by the statute relating to sales made by executors and administrators. This latter statute (Gen. St. 1899, c. 37, § 132) reads as follows: "And the court, after having carefully examined such return [the return of sale], and being satisfied that the sale has in all respects been legally made, shall confirm the sale, and order the executor or administrator to make a deed to the purchaser." The abovequoted statute does not differ in any substantial particular from the statute in relation to the confirmation of sales by the district court as such statute existed prior to 1893. The Civil Code (section 458) provided that: "If the court * shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied with the legality of such sale, and order that the officer make a deed for such lands and tenements." Whatever may be the law in other states, in this one it is settled that under the statute last quoted the order of the court confirming the sale becomes res judicata as to irregularities only, and cures nothing of substance; certainly not unless the matter of substance is exhibited on the face of the sale proceeding itself. This has been the uniform holding since Koehler v. Ball, 2 Kan. 161, 83 Am. Dec. 451. In De Jarnette v. Verner, 40 Kan. 224, 19 Pac. 666, it was ruled that: "Where a sheriff's sale of real estate has been made, and the owner thereof moves to set aside the sale for the