American Ass'n v. Innis

• Decision Date: 16 January 1901
• Citation: American Ass'n v. Innis, 109 Ky. 595, 60 S.W. 388 (Ky. Ct. App. 1901)
• Parties: AMERICAN ASS'N, Limited, v. INNIS et al. [1]
• Court: Kentucky Court of Appeals

60 S.W. 388

109 Ky. 595

AMERICAN ASS'N, Limited, v. INNIS et al.^[1]

Court of Appeals of Kentucky.

January 16, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by C. W. Short against A. A. Arthur to enforce a vendor's lien.Cross action by James Innis and others against the American Association, Limited, to quiet title.Judgment quieting title, and the defendant in the cross action appeals.Reversed.

Richards & Ronald, for appellant.

Harris & Marshall, for appellees.

BURNAM J.

The original suit out of which this litigation grew was begun by C. W. Short in a proceeding against A. A. Arthur to enforce a vendor's lien on a large tract of land situated in Bell county, Ky. Arthur answered disclaiming any personal interest, and alleged that he purchased the land as agent of the appellant, the American Association, Limited, and asked that it be made a party.He also alleged that Innis and his wife, appellees here, claimed title to a part of the Short land; and he made his answer a cross petition against them, and asked that they be required to set up their claim and interplead with Short, and that the conflicting claims between them be settled.The Innises demurred to the answer and cross petition of Arthur, and moved to strike out the portion thereof which was made a cross petition against them, which was overruled.Thereupon Arthur filed an elaborate amended petition, setting out many grants and patents, covering a large body of land which he alleged that he held as trustee for the American Association Limited.In this amended petitionhe alleges that appellees were claiming to be the owners of the land included within and covered by 24 of the patents claimed and held by him as trustee for appellant, a part of which was the same land sold to him by plaintiff Short.He further alleged that the Innis lands constituted and embraced in fact but one boundary of land.The appellees answered that they were the owners and in possession of the land included in the boundary, covered by 61 patents issued by the commonwealth of Kentucky to Edward Innis, numbered from 46,342 to 46,403, inclusive, and recorded in the office of the register of lands; that said land was situated on the waters of Big Yellow creek, in Bell county, Ky. and was purchased from Bell county and surveyed in October, 1871.They further allege that A. A. Arthur, as trustee for the American Association, Limited, and C. W Short, the plaintiff, were claiming to be the owners of a part of the land covered by these patents, and asked that their title be quieted, and that they be restored to the peaceable posession thereof, making their answer a counterclaim against Arthur and a cross petition against the association.To this the association answered, denying the title and possession of the Innises, asserted its own title, and by cross petition prayed that its own title be quieted.The original suit of Short was tried in the Bell circuit court, appealed to this court, and is reported in 97 Ky. 502, 30 S.W. 978.The proceeding on the cross suit between appellant and appellees was prepared for trial, by consent transferred to the Jefferson circuit court, submitted to a special judge, and decided by him in January, 1897.The circuit judge sustained the title of the Innises to all of the land called for by their patents which was not covered by older patents owned by the association.There were four tracts of land which were claimed by appellants under patents which were junior in date to those of appellees, but were based upon surveys and entries senior in date to the Innises' claim.The chancellor decided that the Innises had a prior claim to these tracts.They are the John Burns patent, No. 54,959, entry and survey dated October 15, 1869, patented June 16, 1881; the Berry Turner patent, No. 54,960, entry and survey dated August 16, 1870, patented June 16, 1881; the J. W. Carroll patent, No. 55,737, entry and survey dated August 30, 1870, patented April 10, 1882;A. Parker patent, No. 53,296, entry and survey dated August 31, 1871, patented May 28, 1877.The entries and surveys to all four of these tracts were prior to October, 1871, when the Innis entries and surveys purported to bear date, but the patents thereto were junior to the patents issued to Innis and wife.Appellants seek to reverse the judgment of the circuit court upon several grounds, viz.: (1) It is contended that appellees Innis and wife do not come into court with clean hands; that the record shows that their 62 patents were obtained fraudulently, in that the orders of the county court, and the entries and surveys made pursuant thereto, were in the names of 62 fictitious persons, whose names were forged to the assignment of certificates of surveys which were the basis of the patents issued to appellees.(2) That appellees could not acquire title by surveying a base line, and then platting the tracts on this line, so as to oust subsequent bona fide purchasers in possession under grants from the commonwealth.(3) That the court erred in decreeing to appellees a prior claim on the lands embraced in the patents issued to Burns, Turner, Carroll, and Parker.(4) On the ground that appellees failed to prove possession, and that this cross petition to quiet title should have been dismissed on this ground.We will consider those alleged errors seriatim.

1.Should appellees be denied relief because they did not come into court with clean hands?The allegation of the answer of the association which raises this issue is as follows: "The several patents set up in the cross petition, numbering 46,342--46,403, seriatim and inclusive, issued to said Innis, are all of them and each of them fraudulent and void, issued without any warrant of law whatever.That said Innis fraudulently procured his name to be stricken from the surveyor's book in each of said surveys, and the name of some fictitious person to be substituted therefor; and afterwards said Innis fraudulently procured transfers to be made of said surveys in the name of and purporting to be by said fictitious persons to said Innis, and procured said patents claimed by him and Jannie Innis herein to be issued to him as assignee of said fictitious persons."In support of this allegation of fraud it is shown that the surveys were originally made in the name of Edward Innis, and the names of other persons substituted.It is also proven by divers citizens of Bell county that they were not acquainted with, and never heard of, these substituted names.It also appears from the evidence of persons employed in the land office that the signatures to the assignments on the back of the certificates that were filed in the land office in 49 out of 62 surveys were in the same handwriting.The testimony shows that the Innises resided in New York City; that they employed a man by the name of William Teel to come to Kentucky, and to enter and procure patents to vacant lands in accordance with the law; and that Teel employed divers other persons to assist him in doing the necessary work, among others John L. Craig; and that the surveys were written by Craig, although Parten, the surveyor of Bell county, actually did the work, and made entry thereof in his book.Appellees were in New York City at this time, and there is no proof that they had personal information as to the steps which were taken by their agents to secure the patents sought to be invalidated.All of the evidence which was introduced for the purpose of impeaching the validity of the patents was excepted to on the ground that a patent cannot be collaterally attacked for fraud in its issual.The statute then in force in Kentucky as to the entry of vacant lands is found in chapter 102 of the Revised Statutes, and the portions applicable to this case are as follows:

"Any person who wishes to appropriate any vacant or unappropriated lands may, on application to the county court of the county in which the same lies, and paying therefor such price as the court may allow, not less than five dollars per hundred acres, obtain an order of the court authorizing him to enter and survey any number of acres of such land in the county, not more than two hundred.

"The party obtaining such order may, by entry in the surveyor's book of the county describing the same, appropriate the quantity of land called for in one or more parcels as he may think proper; but no one person shall, under this chapter, enter, survey or cause to be patented, more than two hundred acres of land in any one county.

"The surveyor shall survey the entries in succession in point of time in which the same are made, bounding the same by plainly marked trees, stones or stakes, noting where it binds on a water course or the marked line of another survey, giving names.It shall be in the presence of two disinterested housekeepers as chainmen, whose names must be placed at the bottom of the plat and certificate.

"Such survey must be made within six months from and after the date of entry.

"A plat and certificate of survey must be made out by the surveyor and recorded in his books, and the original thereof, and a copy of the order of the court under which it was made, must be deposited in the register's office within six months after the survey is made.

"A patent may be issued on the survey within three months after a plat and certificate thereof, and a copy of the order, are filed in the register's office.

"When a survey has been carried into grant the register shall write across the face of the order on which the survey was made, 'Satisfied,' and sign his name thereto.

"The legal title to the land shall bear date from the time of making the survey.

"One year from the time this

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