3 S.W.2d 1095 | Ky. Ct. App. | 1928
Affirming.
The appellee brought this action against the appellants to quiet his title to a described boundary of land. The appellants by their answer and counterclaim asserted title to 54 acres of the tract described in the appellee's petition. On final submission, the court quieted the appellee's title to all the land described in his petition, including the 54 acres in controversy, and from that judgment appellants bring this appeal.
The facts are not in dispute. The appellee proved his title back to a patent issued to Maurice Nagle by the commonwealth of Virginia in 1787. A link in this chain of title is a commissioner's deed to the appellee under a sale held pursuant to a judgment entered in a suit brought in accordance with section 4076b et seq. of the Statutes to forfeit the title of this Nagle patent for non-payment of taxes. The appellants traced their title back *519 to a patent issued by the commonwealth of Kentucky in 1846. It is agreed that the possession of the appellants began in August, 1915, and ceased on May 24, 1920, during which time the appellants paid taxes on these 54 acres. To defeat the appellee's cause of action, the appellants relied on the limitations prescribed by section 251 of the Constitution and section 2377 of the Statutes, and the defense of champerty as set out in section 210 of the Statutes.
Section 251 of the Constitution reads:
"No action shall be maintained for possession of any lands lying within this state, where it is necessary for the claimant to rely for his recovery on any grant or patent issued by the commonwealth of Virginia, or by the commonwealth of Kentucky prior to the year one thousand eight hundred and twenty, against any person claiming such lands by possession to a well-defined boundary, under a title of record, unless such action shall be instituted within five years after this Constitution shall go into effect, or within five years after the occupant may take possession; but nothing herein shall be construed to affect any right, title or interest in lands acquired by virtue of adverse possession under the laws of this commonwealth."
Section 2377 of the Statutes, enacted to carry into effect this section of the Constitution, is quite similar in wording. It will be noted that this section of the Constitution provides that no action can be maintained for the recovery of land held under a Virginia patent issued prior to 1820 against a person claiming such lands under "a title of record." In the case of Shaw v. Robinson,
It follows that if section 2377 of the Statutes and section 251 of the Constitution be not violative of the Virginia compact, a question we do not here decide, they only apply to where a defendant is holding under a patent issued by the commonwealth. Does such a patent have to be a valid one? It will be remembered that the patent under which the appellants claim was issued in 1846. It is a junior patent. The Nagle patent, issued by the commonwealth of Virginia in 1787, is the senior patent. Prior to 1835 the statutory law (Section 10 of the Act approved February 6, 1815, to be found in Morehead and Brown's Digest, Statute Laws of Kentucky, 1834, Ed. Vol. II, page 1022), provided, in substance, that junior patents were "inferior" to senior patents, but since 1835 the junior patents are void. The act of 1835 (Act approved February 28, 1835, to be found in Loughbrough Digest of the Statute Laws of Kentucky, 1842, page 386), which now substantially appears as section 4704 of our Statutes, provides, in substance, that only vacant land should thereafter be subject to appropriation, and that every patent thereafter issued should be void so far as it embraced lands previously entered, surveyed, or patented. In Caughlin v. Wilson,
"The record shows that the land in question was originally patented in the year 1804. The patent under which defendants claim was not issued until the year 1897. The land having been previously surveyed and patented, the patent issued to Mrs. Eades was void. The seven-year statute of limitation provided for in section 2513, Kentucky Statutes, does not apply to or protect an occupant *521 under a void patent, as the claimant under such a patent has no title deducible from the commonwealth."
In McMillan's Heirs v. Hutcheson, 4 Bush, 611, the court said:
"Hutcheson has no documentary title, his survey and patent being utterly and absolutely 'null and void.' He stands, therefore, in this contest, just as he would had he never procured a survey or patent; and as he has had no title derived from the commonwealth, the limitation of seven years for the protection of actual settlers under any such title does not apply to his settlement under his void patent, which conferred no right or title, and placed him in no better or more meritorious condition than a settler without any documentary claim."
See, also, Davidson v. Coombs, 5 Ky. Law Rep. 812.
From these cases, it appears that the rule is that where a person is required by statute to base his claim on a "title of record" or on a "public record" he must trace his title back to a valid patent. As the appellants claim under a patent issued in 1846, and as this is a junior patent which under the act of 1835 is a void patent, it follows that the appellants have no "title of record," within the meaning of section 251 of the Constitution or section 2377 of the Kentucky Statutes, for which reason these sections afforded the appellants no defense to the appellee's cause of action.
The next question for determination is whether the defense of champerty, interposed by the appellants, is good or not. This defense is based on the fact that at the time the commissioner's deed to the appellee mentioned above was executed, the appellants were in adverse possession of the land in controversy. It is conceded that the defense of champerty is, ordinarily, not available as against a commissioner's deed executed under a sale held pursuant to a judgment in a judicial proceeding. Morgan v. Big Woods Lumber Co.,
"The purchaser at this sale will not, by virtue of his purchase or its confirmation by the court, be authorized to oust any of these claimants (five-year *523 adverse holders who have paid taxes) of their possessions or interfere with their holding. The purchaser will only acquire title to so much of this land as is not held by the class of occupants described in section 4076g. He will buy the land subject to the rights of these occupants. The statute so declares, providing that the deed to the purchaser 'shall operate to transfer to said purchaser such title and claim to the land so forfeited and transferred to, and vested in, the commonwealth as remains in it after the operation of section 4076g of this article.' . . . The purchaser will only get title to so much of the land as these occupants are not entitled to hold, and the occupants can only be ousted when it is shown by the purchaser that they do not come within the saving of the section under which they hold. If they do not come within the saving of this section (4076g), then of course they are not protected in their occupancy by it."
The court in this opinion ignored the dicta in the Kentucky Union Company opinion, and its language as to the rights of a purchaser at a sale of these forfeited lands is entirely incompatible with the idea that the defense of champerty is available as against any commissioner's deed such purchaser would receive under such sale. In the case of Kentucky Coal Lands Co. v. Baker,
"The petition of the plaintiff shall allege the facts constituting the cause of forfeiture under the provisions of this article, and there shall be filed with it a copy of the grant or instrument upon which the title or claim sought to be forfeited is based; and no other title, claim or possession, or continuity thereof, whether owned or claimed by the defendant or by others, shall be forfeited or in any manner affected by said proceeding."
It seems to us that this part of section 4076d, when read in the light of the rest of the act, means that only such title or claim as is set up in the petition can be forfeited, and that the purchaser at the sale thereafter to be held will acquire only such title or claim as is set up in the petition, but that such purchaser will get that title or claim except in so far as it is affected by section 4076g. *525 If the person occupying the land holds under a title or claim not described or set out in the petition, the judgment of forfeiture will not affect that title or claim nor will the judgment interrupt the running of any limitations then applicable. But this does not mean that the ordinary rule that the defense of champerty cannot be interposed to a commissioner's deed executed under a sale in a judicial proceeding should not apply.
Some contention is made that the appellee at the judicial sale held under the judgment of forfeiture here involved bought this land in through his agent who transferred his bid to the appellee. There is no merit in this contention, for under the familiar rules of agency the purchase by the agent was the purchase of the appellee.
We are therefore of the opinion that the defense of champerty is likewise not available to the appellants. It results therefore that the judgment of the lower court quieting the title of the appellee is correct, and it is affirmed.
Whole court sitting.