138 Ky. 472 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
By virtue of his office as Auditor of State, Frank P. James'is custodian of the records of the Land Office, and performs the duties pertaining thereto formerly exercised by the register of • the Land Office. It is hig duty to receive and file surveys of vacant lands, and to issue patents therefor, which are signed by the Governor. In 1851 a warrant was issued by the clerk of the Whitley county court for 40,000 acres of vacant and unappropriated land in that county to Enoch Cox, James C. Williams, and James McLancy. . On February 28, 1851, W. C. Gillis, surveyor of Whitley county, certified that he on that day had surveyed 2,000 acres for W. C. Gillis, assignee of Cox, Williams, and McLancy under the foregoing warrant, setting out the lines and description of the tract surveyed by appropriate metes. This survey does not appear to have been carried into grant until 1908, when a copy of the certificate from the county surveyor’s books was produced to the Auditor of Public Accounts, who prepared the necessary patent, which was signed by the Governor, and issued to the assignees of Gillis and delivered. In 1854 there was issued a patent
But if it is claimed that the patent is void for fraud practiced upon the commonwealth, or upon the county court issuing the warrant, then the patent must be attacked in a direct proceeding to vacate it. Marshall v. McDaniel, 12 Bush, 381; Aulick v. Colvin, 6 B. Mon. 290, 43 Am. Dec. 164; Taylor v. Fletcher, 7 B. Mon. 84.
If it should be conceded, further, that this suit was intended for the last-named purpose, then it is a transitory action to which only the respective claimants are necessary or proper parties. We cannot perceive that the Auditor of State, because he is the custodian of the public records affecting land grants, is a proper party to an action to vacate a grant obtained not by his fraud, any more than the clerk- of the county court would be- in a suit to annul a deed obtained by fraud. The record is required to be kept, and it must disclose truthfully all that is required to be recorded therein. If- a party has obtained false evidence upon which the record is predicated, the course is not to compel the public custodian to mutilate or alter his record.
The Auditor not being a proper party to the action, his special demurrer to the petition was properly sustained. And as he was not a proper party, the action being transitory, the Franklin circuit