¶1The opinion of the court was delivered by
¶2A single question determines this case. Pratt, plaintiff below, brought suit on a promissory note. Yickroy, defendant below, filed an answer with three counts. A demurrer to the answer was filed and sustained. No application being made to amend the answer, judgment was rendered for the amount of the note and interest. Does either count in the answer present a defense to the note sued upon ? The first, in brief alleged that the note was given in consideration of the sale and delivery of possession of a tract of land to which the Indian title had not been extinguished; that both parties were citizens of the United States; that plaintiff was not a member of any Indian tribe, nor licensed to enter upon said Indian lands, but on the contrary, his possession thereof was in violation of law. We fail to see why these facts do not show a want of consideration. A sale of the land carried nothing, because Pratt had no title. A delivery of the possession was not a good consideration, for Pratt was a trespasser, and had no lawful possession to surrender. Stone v. Young, 4 Kas., 28.
¶3We think the court erred in sustaining the demurrer, and for this reason the judgment must be reversed, and the ease remanded for further proceedings.