Kennedy v. McElroy, 92 Ky. 72

Kennedy v. McElroy

92 Ky. 72 | Ky. Ct. App. | 1891

JUDGE BENNETT

delivered the opinion op the court.

By an Act of the Legislature, approved 81st day of January, 1809, Aaron Stratton and others, and their successors, were constituted a body politic and corporate, to be known by the name of the “ Trustees of the Lewis County Academy.” The act then proceeded to give said. *74trustees the usual powers as such. It also provided that said trustees were “ entitled to locate, survey and patent six thousand acres of land for the benefit of said academy, on the terms and conditions prescribed in the act, entitled ‘ an act to establish and endow certain academies, and the several acts amendatory thereto.’ ” It also appears that these trustees, pursuant to said act, procured a patent to about twenty-five hundred acres of land lying in Russell county, which is one of the counties in which vacant land might be appropriated under said act. In 1825, the Legislature passed another act, authorizing said trustees to sell said land for the benefit of said academy. But said trustees failed to sell or otherwise dispose of said land, and, in 1851, there being no trustees, and the academy being dissolved, the Legislature passed another act repealing the act of 1825 authorizing said trustees to sell said land, and vesting the same in the county of Lewis, for the benefit of the common schools of that county, and authorizing the Lewis County Court to sell said land for that purpose, and authorizing said court to make said sale by agent. That the court, pursuant to such authority, did appoint Peter Riffe to sell said land ; that he did sell the same; that the sale was approved by the court and deeds were duly made to the purchasers; that the appellant is the remote vendee of these purchasers of said land, and the appellees are trespassers on parts thereof, cutting, removing and destroying valuable timber, thereby committing irreparable injury, etc. The appellant’s petition discloses, substantially, the foregoing facts, and the court sustained a demurrer to the petition. . The decision of the court on that demurrer is the subject of review.

It is alleged, in substance, that neither the trustees ap*75pointed, nor their successors, sold nor appropriated the land granted to them in trust for the Lewis County Academy ; that in 1851, there being no trustees, and the “ academy being dissolved,” the Legislature granted said land to Lewis county for the benefit of its common schools, and authorized the county court, by itself or .agent, to sell the land for that purpose, which it did, etc. It is to be observed that the Legislature granted this land to the persons named in trust for a certain purpose, and the title of the Commonwealth did not pass from it to the grantees, except in trust for that purpose; and when the object of the trust became extinct, the title reverted to the Commonwealth as matter of law, unless the Commonwealth had otherwise disposed of the reversion — then, of course, the title would not revert. The reversion of the title, in such case, is not in consequence of a forfeiture of title, but in consequence of the failure of the purpose to which it was granted, consequently it reverts to the grantor (in this case, the Commonwealth.) It is only in case of a forfeiture of title by the grantee in consequence of some act of his, that the forfeiture must be declared by a direct proceeding for that purpose. But in case of an escheat or reversion, which only occurs in consequence of the cessation of the particular title granted, no direct proceeding is required to establish and declare either fact; but when the event occurs that entitles the party to the escheat or reversion, the title of the grantor may be resumed as a matter of right. (See White v. White, 2 Met., 185; Stevenson v. Dunlap’s Heirs, 7 Mon., 134; Fry v. Smith, 2 Dana, 38.)

It is alleged that the county court, not the county judge, sold the land, or appointed Peter Riffe to sell it. *76If this is not true, the question should be raised by answer. It is also suggested that this land, by a former act, was granted to the use of academies generally, in case the grant to the particular academy failed. If this be true, and the object of such grant still exists, the fact should be made to appear by answer.

The judgment is reversed, and the case is remanded, with directions to overrule the demurrer.