183 Ky. 651 | Ky. Ct. App. | 1919
Opinion op the Court .by
Reversing.
The appellant, who was plaintiff below, sought by this action to enjoin appellees from trespassing and cutting trees upon about sixty-five acres of land adjoining the town of Pine Knot, now in McCreary, but formerly in Whitley county; and although she must of course recover upon the strength of her own title, and not upon any weakness of that of the defendant, since only her title
Both patents cover the land in controversy, and the Wait and Hudson patent by its terms excludes “all land previously surveyed.” But whether this were true or not, it would have been void under sec. 704 of the Kentucky Statutes, as to all land included which had been pre* viously surveyed, and it is insisted by counsel for appellees that as the survey for their patent was made December 21, 1853, and appellant’s survey was not made until August 30,1854, nor his patent issued until (October 18, 1855, their land was excluded from his. patent both by its terms and by the statute. This, however, is not necessarily true, because it is only subsisting legal entries and surveys that are excluded by such a reference in a patent, and for which the statute invalidates subsequent entries, surveys or patents. (Stansberry’s Heirs v. Pope, 5 J. J. Mar. 192; Bryant v. Kentucky Lumber Co., 144 Ky. 755; Ford v. Bryant, 158 Ky. 97; Mason v. Fuson, 171 Ky. Ill; Stephens v. Terry, 178 Ky. 129.)
It therefore becomes necessary to determine whether or not defendants’ survey made by Harmon December 21, 1853, was a valid survey,-in order to determine the validity of plaintiff’s title under a subsequent survey and patent. The Harmon patent recites “that by virtue and in consideration of an order from the Whitley county
In considering these acts and in determining the validity of the precise warrant No. 464, issued by the Whitley county court, this court, in the case of Bryant v. Kentucky Lumber Co., supra, said:
“The plain purpose of this act (the one approved •March 8, 1851) was to require all these matters to be closed up by March 1, 1852; that is, the parties who had •made these surveys were given a year to pay the price and take out their grants. The necessary meaning of the statute is that they were required to pay the price and register their surveys within the time specified and that they could not do so thereafter. ’ ’
This court again in the case of Stephens v. Terry, supra, held Whitley County Land Warrant No. 464 invalid. It is therefore apparent that the survey made December 21, 1853, upon which the Harmon patent rests, was not a valid subsisting survey when the Wait and Hudson survey was made and the patent issued thereon, and therefore neither excluded nor invalidated any part of the land included in the Wait and Hudson survey and patent; and of like impotency was the payment to the.
But counsel for appellees insist that since this is a collateral attack upon their patent, which is regular upon its face, its validity can not be questioned in this action. They overlook the fact, however, that it is not the validity of their patent that is in question here, but the validity of plaihtiff’s patent, so far as the land in question is concerned, depend^ upon whether their survey was a valid subsisting survey so as to constitute an exclusion by the terms of plaintiff’s patent and pro tanto render same void under sec. 4704 of the statutes.
Hence there is no place here for the application of the rule that a patent valid upon its face can not be collaterally attacked; even if it were otherwise, this case falls within one of the recognized exceptions to that rule, since defendant’s patent upon its face purports to have been based, and is shown by the records to have been issued upon Whitley County Land Warrant No. 464, and the survey of December 21, 1853, and as stated in Bryant v. Kentucky Lumber Co., supra, these papers may be read with the patent to show its invalidity upon a collateral attack.
We are also urged by counsel for appellees not to declare their survey illegal upon the ground that to do so will disturb numerous and valuable vested interests of many citizens of the town of Pine Knot, which is largely built upon the northern half of the Harmon patent; but even if this were true, that fact could not under any principle of law with which we are familiar, control our decision of this case to which none of the owners of these vested interests is a party; however, as a matter of fact, from the evidence in this case, counsels’' fears do not seem to be warranted, because plaintiff’s son and her only witness, testifies that his mother and those under whom she claims, many years ago sold and conveyed the surface of the land upon which Pine Knot is largely built, and that the parties who now own and have improved this land claim and hold same by title derived through her and her vendors, and that she now claims no interest in
Another contention advanced by appellees, is that because in an old suit to which plaintiff was neither a party nor privy, an attack upon the validity of the Harmon patent failed, she is estopped to deny its validity because she or her agents in charge of her property in the vicinity must have known of this contest and its outcome; but these facts are clearly insufficient to constitute an estoppel, even if one had been pleaded, which was not done.
These conclusions render it unnecessary for us to consider the plea of adverse possession by which plaintiff also attempts to establish title to a part of the land in controversy.
For the reasons indicated, the judgment is reversed and the cause remanded with instructions to grant plaintiff the relief asked.
