The opinion of the court was delivered by
Kingman, C. J.:*1471. Plaintiff’s incapacity to sue. Defect of parties plaintiff and defendant. *146This action was brought by defendants in error and A. A. Jackson in behalf of themselves and all others, occupants of the town site of Winfield, to vacate certain deeds made by the probate judge of Cowley county to the Winfield Town Company and the Winfield Town Association. The questions made arise on a demurrer which was overruled. The demurrer was not tenable on the first ground *147alleged in it, that the plaintiff had no legal capacity ° , r ° . *° sue> ^or ground only goes where there is a legal incapacity, such as infancy, coverture, lunacy, an(j The pleader seemed aware of this difficulty, for he has extended his demurrer on this ground by adding that they “have no power to sue in this action for the benefit of the inhabitants and occupants of the said town.” This may be true. We think it is, as we shall presently set forth more fully; but the objection can only be taken on the ground that the petition does not state facts sufficient to constitute a cause of action.
The next ground of demurrer is that there is a defect of parties plaintiff. This also is a mistake. That there is a misjoinder of parties we have little doubt; but this defect is not one for which a demurrer.on this ground will lie. See code, § 89; Mann v. Marsh, 35 Barb., 68. Nor can we perceive that there was a defect of parties defendant. We have noticed these points briefly as they are insisted on by the plaintiffs in error. They have not been reasoned, because the questions have long been settled.
2. Petition of occupant of town site, for relief. What it should state. *148Joint interest. Interest of occupant. *149Common and general interest. *150Tile of petition. *147The next ground of demurrer is, that the petition does not state facts sufficient to constitute a cause of action. And on this ground we think the demurrer should have been sustained. The petition states that the plaintiffs and many other parties, on the 10th of July 1871, the _ . . . 1 . TTT, . _ day on which the town site oi Winfield was entered, were and still are inhabitants and occupants of said town site, and they seek to have four certain deeds relating to the lots in the town of Winfield set aside. They allege that on the 10th of July 1871 the town site was duly entered by the probate judge of Cowley county in trust for the use and benefit of-the occupants; that on the same day he fraudulently executed a deed for forty acres of the land to the Winfield Town Company, and at the same time he fraudulently executed another deed for 120 acres of the town site to the Winfield Town Association; that each of said deeds was made against the interests and expressed wishes of the *148occupants of said town site, and in violation of the trust; that these conveyances were made bjr collusion between the probate judge and the officers of the two corporations named; and that when the inhabitants of the town obtained a mandamus compelling the probate judge to appoint commissioners to set off to them their respective interests, he appointed interested men who entered into a conspiracy with the officers of the above-named corporations to defeat the claim of the occupants, and fraudulently made a report to the probate judge in favor of those two corporations, refusing to recognize the rights of the occupants in their report, and immediately upon the making of the return by the commissioners the probate judge executed to said corporations two deeds similar to those previously made. These are the four deeds Avhich the petition seeks to have declared void; and it is further asked that the order of the probate judge appointing commissioners, and the report of the commissioners so far as they affect the coiweyanees, be declared null and void. From this statement of the petition it does not appear that the plaintiffs had any joint interest in the suit. If 0f them. had any interest in the town site he held it in his own individual right. At least there is no allegation that he held it otherwise. He had his own particular interest to protect, and should have set out that interest in the pleadings. The entry was “ for the benefit of the occupants thereof according to th'eir respective interests.” 2 Lester’s Land LaAVS, 207. The mere fact of being an occupant does n(k liecessarily give any interest in the town site. man may occupy a costly store-house as tenant, of one Avho has erected it at great expense. Strictly speaking, such a man is an occupant, but his occupancy would everywhere be considered the possession and occupancy of his landlord. “The object of the laAVAvas to give the OAvners of lots a good title to their property.” Opinion of attorney general, 1 Lester, 431. These owners must be occupants, as that is the evidence of their ownership, until the government parts with its title. For aught that appears in the petition *149every lot on the town site of Winfield may have been occupied by settlement and improvement of parties other than the plaintiffs. How then are they interested in the object of the action ? It would seem from the argument of the defendants in error that counsel hold that each inhabitant of the town is entitled to an equal share of the town site. But this would be gross injustice. The capital and' labor of one man has resulted in his putting up buildings on ten times his average portion of the lots. He has done so much toward building up the town, and advancing the interest of the new community. He has done it, it is true, for his own interest, but the public has the benefit of it, and the amount he has so improved he is entitled to. The law of congress not only does not prescribe that each occupant shall be entitled to an equal share of the lots, but that it shall be for the occupants “ according to their respective interests,” plainly indicating that the interest of one may be greater than the others. The true criterion may be difficult in some cases of application, but that which a man has really occupied, and has manifested his occupancy of, by acts, such as improvements, that he is entitled to. Such facts ought to have appeared in the petition to have entitled the plaintiffs to relief. There would be no difficulty in their showing how they were occupants, if they were so in a sense that entitled them to any part of the town site. Then, if their interest was joint, they could unite in the action. Tf their interest was several, then they had no such interest as would authorize them to unite in , , the action. • Ihere is no averment m the petition of such a joint interest. Newcomb v. Horton, 18 Wis., 566; Barnes v. City of Beloit, 19 Wis., 93. The petition by its title proposes to be in favor of “Enoch Maris, A. A. Jackson, and C. H. Kingsbury, who sue for the benefit of all the occupants of the town site of Winfield.” But the petition •contains no allegation that the case is such as is contemplated by § 38 of the code. Neither the number of the occupants, nor their common interest, is alleged. Neither is there any averment that after the occupants have received deeds 'for *150what they are entitled to there will remain any part of the. town site undisposed of. If the interest was common, then its nature and character should appear by proper averments in the petition to be such as would entitle them all if before the court to maintain the action in their own names. Habicht v. Pemberton, 4 Sandf., 657. This nowhere appears in the petition. The defendants in error answer that the title is a part of the petition. This is true, but it is not a traversable allegation on which the defendants can take issue; and if even the statement in the title were repeated in the body of the petition, it would not present facts from which the court could infer such a state of facts as is provided for in § 38. These facts must be distinctly averred, so that the court as well as the pleader may see that theré are circumstances existing that take the case out of the general rule, and bring it within the provisions of the section referred to.
3. Settlers on Town Sites Act of Congress. *1514. Trust — rights of beneficiaries. 5. Rules for executing trust. *150The conclusion already reached necessarily leads to a reversal of the judgment of the district court, and is all that is absolutely necessary to decide in this case. But we may presume that the petition will be amended so as to raise the question of the legality of the deeds mentioned in the petition, and as that question has been elaborately argued in this and another case, and the court having given it that consideration that its importance and far-reaching consequences demand, it is thought advisable to present our views on that question. The law of congress under which the entry was made by the probate judge is found in 14 U. S. Stat. at Large, 541, and is made under certain conditions, which it is presumed existed or the proper officers would not have allowed the entry to be made. When the entry is thus made it is made as the law declares “in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative *151authority of the state or territory in which the same may be situated.” Before there can be an entry, the land must be settled upon and occupied by a certain number of inhabitants. The moment the land is entered the trust vests an absolute right in the beneficiaries. There is no provision for the execution of the trust until the local legislature prescribes the necessary rules and regulations, but the legislature can only direct in what manner the trust shall be executed. It cannot under a pretense of providing rules for the execution of the trust change its character, or deprive those for whom it is intended of any benefits of the trust. Undoubtedly congress intended that some discretion should be left to the legislature, not only as to the manner of the execution of the trust, directly, but also some regard to the public welfare. The legislature may well direct how much of the unoccupied portion of the town site shall remain as parks or public grounds, because in such case the inhabitants have ™ one way of the lands. To some extent the legislature of the state has provided the rules and regulations for the disposal of the lots in such town sites, in ch. 109, Gen. Stat., 1073. There is no controversy about any portion of said act save as to § 12. That section is as follows:
“Sec. 12. All persons who select and lay out a town site, and their assigns, shall be deemed, occupants of said town site, and the lots embraced therein, within the meaning of the above recited act of. congress, and deeds shall be made accordingly.”
So far as this section makes any other person than the occupants of the town site beneficiaries of the act of congress, it is inoperative. Undoubtedly “town companies,” as recognized by our statute, may be occupants, and embraced within the terms of the law of congress. If such company is really an occupant, to the extent of its occupancy it is protected by the law. The company stands as any other individual, and holds no other or better relation. So far as the section gives the town company or persons who select and lay out a town *152site any advantages over any other occupant, it is inoperative. The legislature-in prescribing the rules for the execution of the trust cannot change it by substituting other parties to receive its benefits than those indicated in the law of congress. If individuals or town companies choose to lay out lands for a town site, and make money by that means, there is no law to prevent it; but they cannot pre-empt the public domain for that purpose under the law of congress. That law was made for the benefit of the occupants of the town, and not for speculators. The law of congress has received .a construction similar to that which we have given it in the case of Cash v. Spalding, 6 Mich., 193; and while the court was divided on one of the questions raised, yet on this point both the opinion of the court and the dissenting opinion agree. Reference is made to Leech v. Rauch, 3 Minn., 448, and Castner v. Gunther, 6 Minn., 135, as making a different ruling. But the decisions do not sustain the opinion claimed for them. In the last cited case the learned judge who delivered the opinion of the court states that he holds with the decision in Michigan, but that point was not before 'the court. It could not therefore be passed upon.
The judgment of the district court sustaining the demurrer to the petition will be reversed.
AH the Justices concurring.