¶1The opinion of the court was delivered by
¶2This was an action in the nature of ejectment, brought by Ezekiel J. Boring against William Simpson to recover certain land in Bourbon county. The pleadings show that the title to the land passed originally from the government of the United States to the Missouri River, Fort Scott & Gulf Railroad Company, and that the plaintiff claims title under and through said railroad company. The pleadings also show that the defendant claims adversely to both the plaintiff and the railroad company. He claims that at the time the patent for the land was issued by the government to said railroad company, one Alexander Haskins had the right under the Cherokee treaty of July 19th 1866, (14 U. S. Stat. at Large, 799, 804, § 17,) to purchase said land from the government, and that he (the defendant) has succeeded to the rights of Haskins, and that therefore the railroad company holds said property in trust for him, the defendant. The defendant set forth in his answer all the facts of his claim, fully and specifically, and upon the truth of these facts the plaintiff took issue by denying the same generally in his reply. The issues of fact thus made were submitted to a jury, and the jury on the merits of the case found in favor of the plaintiff, and against the defendant. This is about all there is of the case. The defendant failed upon the facts of the case, and not upon the law. His allegations of fact were found by the jury not to be true; and hence there is no question of law now' involved in the case that *251merits much consideration from this court. If the defendant’s facts had been found to be true, he would have recovered so far as the law is concerned. The case was very fairly submitted to the jury. The jury found against the defendant, and their verdict is unquestionably correct. It is true, the plaintiff did not hold the legal title (as contradistinguished from the equitable title) to the property in dispute; but that was not necessary. (Gen. Stat. 747, § 595; Duffey v. Rafferty, 15 Kas. 9.) The railroad company held the legal title, and the plaintiff claimed by virtue of a written contract of purchase of said property from the railroad company. Under' said contract the plaintiff had the right of possession of the property as against the railroad company, or as against any person holding under the railroad company. The contract was still subsisting and in full force when this action was commenced, and when it was tried; and this we think was sufficient to enable the plaintiff to recover. The defendant had no interest whatever in the property as against the. railroad company, or the plaintiff. And any kind of an estate in land, legal or equitable, is sufficient to enable a plaintiff to recover in this kind of action as against a party who has no interest in the property. The question of who shall recover in this kind of action depends entirely upon the question who has the paramount right to the property. (Duffey v. Rafferty, supra. See also, K. P. Rly. Co. v. McBratney, 10 Kas. 415; The State v. Stringfellow, 2 Kas. 263.)
¶3The former case of Simpson v. Boring can have no possible bearing upon the present case. Simpson might have recovered in that case upon the second count of his petition for the “boards, rails, posts and stakes, and other fencing materials,” “personal property,” which he alleges Boring injured and destroyed, without showing that be (Simpson) ever had the least interest in the real estate now in controversy, or that he had ever been in the possession thereof, or even that he had ever seen or heard of the same.
¶4The judgment of the court below is affirmed.