90 Ky. 530 | Ky. Ct. App. | 1890
delivered the opinion oe the court.
The appellee, Jesiah Wood, obtained a warrant from the clerk of the Whitley County Court in 1849 for the survey of six hundred acres of vacant land. The survey was made on March 2, 1853. It does not appear to have ever been returned to the Register of the Land Office, and was never carried into grant by the issual of a patent. With the making of the survey the appellee allowed the matter to rest. He does not appear to have ever had the possession of the land, nor does he account in any way for his failure to obtain a grant to' it.
In 1888, or thirty-five years after the making of the survey, he brought this action against the appellants, who, as the appellee avers in his petition, are in possession of the land, and who obtained a patent for it in 1884, to restrain them from committing waste upon it by cutting the timber. He claims to be the equitable owner of it by virtue of his survey.
The appellants claim, first, that their demurrer to the petition should have been sustained, because the petition is insufficient, inasmuch as it does not aver that the appellee is in possession of the land, and asserts only an equitable title to it. It is true an
It is true that the judgment is for the land; but the appellee asserted equitable ownership in Ms petition, and the appellants, in their answer, not only asserted ownership in themselves, with a prayer that their title be quieted, but also asked that the appellee be estopped from asserting any claim to the land. Under these circumstances the court did not err in taking control of the question of ownership.
This brings us to the second claim of the appellants, which is that the appellee, as against them, has no right or title upon which he can recover. This he must do, if at all, upon the strength of his own right. His warrant appears to have been obtained under the act of the Legislature of February 8, 1835, as amended by the act of February 21, 1837. Under these acts he was required to do what was required of the holder of treasury warrants under which vacant lands had been theretofore surveyed, and it was provided that on the return of the plat and certificate of survey to the Register, he should record them, and issue a grant as under the prior existing law. (Loughborough’s Statute Laws of Ky., pages 386-388.)
So far as we have been able to find, the act of February 6, 1815, was in force up to that time relative to the period within which this return should be made. (5 Littell’s Laws, page 266.) It
The Revised Statutes of 1852 required the return to be made within four months from the making of the survey, while our present law fixes the time at six months; and each provides that, if done within the time named, the title granted is to relate back, and take effect as of the date of the survey; but that if returned after the time named, as is allowable, the legal title vests in the grantee only from the issual of the patent. (Rev. Stats., chapter 102; Gen. Stats., chap. 109.)
The party by the survey acquires a claim to the land, or what has been termed by this court “an inchoate title.” (Flippin v. Hays, &c., 3 Met., 215.) If he fails to return the survey to the Land Office within the time fixed by the statute, this inchoate right still exists, and may be perfected by grant, vest
Whether you term it an inchoate right or title which he acquires, it is but an equity. The law looks to, and public policy requires, a perfection of it by grant within a reasonable time. The party
The judgment is, therefore, reversed, with directions-to dismiss the' petition.