198 Ky. 523 | Ky. Ct. App. | 1923
Opinion of the Court by
Affirming.
This appeal is from a judgment quieting appellee’s title to the mineral in a tract of 120 acres of land in Pike county.
Pleasant Bartley was the owner of a large tract of land on the Ash Camp branch of Elkhom creek in Pike county, to which he derived title through a patent issued to N. C. Morse and others on October 10, 1866.
On February 10, 1887, Pleasant Bartley executed to E. B. Moon a title bond by which, in consideration of certain payments to be made, he sold and agreed to convey to Moon “all the coal, mineral, oil and gas in and on all those tracts of land, lying on Elkhorn creek and Gum branch, Pike county, Ky., and adjoining Alexander Ratliffe, Roll Bartley and others, and containing four hundred and, forty acres, more or less.”
On September 27, 1888, Pleasant Bartley and wife conveyed to M. J. Bartley a tract of land containing about 20 acres.
On February 12, 1890, Pleasant Bartley and wife and M. J. Bartley conveyed to Isaac Sanders a tract of land covering the land in controversy, but “accepting coal and mineral gas and salt water and oil held by the Moon bond.”
On July 16, 1890, and after the Moon bond had been cancelled in an action brought for that purpose, Pleasant Bartley and wife conveyed the minerals in the land theretofore conveyed to Isaac Sanders, and described as containing 438 52/160 acres, to the Virginia Mining & Improvement Company, and the title thereto passed by mesne conveyances to appellee.
On December 15, 1903, there was issued to Isaac Sanders, who had theretofore purchased from the Bartleys, a patent to 120 acres covered by Ms deed, and Sanders’ title thereafter passed to appellants.
In the first place it is insisted that the Morse patent of 1866 is void because of the vague and indefinite descriptions. contained in the entries, and of the further fact that some of the records of Pike county tended to show that a large number of the warrants for the land were not issued until after the surveys had been made. It must not be overlooked that if the Sanders survey of 1903 is not valid, then appellants and appellee both claim title through Pleasant Bartley, and that being true, it was not necessary for appellee to prove title beyond the common source. In Eastern Ky. Land Co. v. Ferguson, 65 S. W. 830, it was held that land which is embraced in a prior patent though void cannot again be patented as vacant or unappropriated land. In discussing the question the court said:
“Subsections 8, 11, sec. 3, c. 102, Rev. Sts., in force in 1866, provide:
“ ‘ (8) None but vacant land shall be subject to appropriation under this chapter. Every entry, survey, or patent, made or issued under this, chapter, shall be void so far as it embraces lands previously entered, surveyed or patented. ’
“•‘(11) No land shall be subject to appropriation under this chapter that has reverted to the Commonwealth by escheat, or has been forfeited for an omission to list same for taxation, or for failing to pay the taxes thereon, or which has toeen once patented, and the title of the same has in any way become again vested in the Commonwealth.’ ”
The same language is brought through the General Statutes, and is contained in section 4704, Kentucky Statutes. These sections have been considered by this court in the case of Kirk v. Williamson, 82 Ky. 161, in which the court said: “Whenever the Commonwealth lawfully patents the land once, it cannot for any cause patent the same land again as vacant or unappropriated land, for that would breed confusion and contention.” Again, in the case of Roberts v. Davidson, 83 Ky. 284, the court said: “It may be said that the statute, supra,
Stansberry’s Heirs v. Pope, 6 J. J. Mar. 189, Bryant v. Ky. Lumber Co., 144 Ky. 755, 139 S. W. 1089, and Ford v. Bryant, 158 Ky. 97, 164 S. W. 308, do not announce a contrary rule. They merely hold that a previous entry or survey that will render void a subsequent entry, survey or patent must be. a subsisting legal entry or survey. The reason for the difference in the rule as applied to an entry or survey and as applied to a patent is that if the entry or survey is void, the land is still vacant and unappropriated, but the statute expressly provides that land once patented, shall not be subject to appropriation under the act.
As the Sanders patent of 1903 is void, it results that appellants’ only source of title is through the deed made by the Bartleys to Isaac Sanders on February 12, 1890, based on the claim that the minerals in the land in controversy were not excluded from the operation of that deed, and having held that this contention is without merit, it follows that appellants failed to show title. This conclusion makes it unnecessary to pass on the validity of the Morse patent, or to determine whether or not it is subject to collateral attack.
On the whole we find no error in the record prejudicial to the substantial rights of appellants.
Judgment affirmed.