Davidson v. Lewis

• Citation: 159 Ky. 798,169 S.W. 538
• Parties: DAVIDSON ET AL. v. LEWIS, JUDGE.
• Decision Date: 29 September 1914
• Court: Court of Appeals of Kentucky

169 S.W. 538

159 Ky. 798

DAVIDSON ET AL. v. LEWIS, JUDGE.

Court of Appeals of Kentucky.

September 29, 1914

Petition by M. V. Davidson and others against L. D. Lewis, Judge, for a writ of mandamus. Writ granted.

Hannah J., dissenting.

Cleon K. Calvert, of Hyden, for petitioners.

Ira Fields, of Whitesburg, and O'Rear & Williams, of Frankfort, for respondent.

CARROLL J.

This is an original suit filed in this court by M. V. Davidson, suing for himself and all other citizens and taxpayers of Leslie county, seeking a mandamus against Hon. L. D. Lewis, judge of the Thirty-Third judicial district and of the Leslie circuit court, to require him to enter certain judgments described in the petition. The case comes up to be heard and disposed of on a general demurrer to the answer of Judge Lewis.

The petition is in two paragraphs, and it appears from the first paragraph that in April, 1907, the commonwealth, as plaintiff, instituted in the Leslie circuit court an action against the Kentucky Union Company and a tract of land described in the petition, in which it was sought to forfeit all the right, title, and claim of the Kentucky Union Company and the owners and claimants of the land described in the petition to a large body of land in Leslie county containing some 40,000 acres. In October, 1907, there was a trial of this case, resulting in a judgment forfeiting to, and vesting in, the commonwealth all the title and claim of the Kentucky Union Company to the tract of land sought to be, and that was, forfeited. This judgment was afterwards affirmed by this court in Kentucky Union Co. v. Com., 128 Ky. 610, 108 S.W 931, 110 S.W. 398, 33 Ky. Law Rep. 9, 587, and also by the Supreme Court of the United States, the case being reported in 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137.

It further appears that subsequent to this the petitioners requested Judge Lewis to enter a judgment ordering a sale of this land, and that he has refused to do so.

In a second paragraph it was set out that in 1911 the commonwealth instituted proceedings in the Leslie circuit court against the executors and heirs at law of Edwin N. Yelland, for the purpose of forfeiting to the commonwealth a large body of land claimed by the defendants in a suit; that in 1913 a judgment of forfeiture was entered vesting in the commonwealth all the title, claim, and interest of the defendants in the land described in the petition; that after this Judge Lewis was requested to enter a judgment directing a sale of the land so forfeited, which he declined to do.

The prayer of the petition is for a writ of mandamus against Judge Lewis directing him to enter in each of these cases a judgment ordering a sale of the land described in the two paragraphs of the petition.

The proceeedings under which this land was forfeited to the commonwealth were instituted under the authority of an act of 1906 (Laws 1906, c. 22, art. 3, §§ 1-10), now sections 4076b to 4076k of the Kentucky Statutes.

In section 4076g it is provided that:

"All title and claim proceeded against under this article and forfeited to, and vested in, the commonwealth and not purchased back by the owner or claimant thereof, as authorized in section 4 hereof, whether such forfeiture be for past delinquencies or for future delinquencies as authorized under section 10 hereof, shall be, and is hereby transferred to, and vested in, any person for so much thereof as such person, or those under whom he claims, has had the actual adverse possession for five years next preceding the judgment of forfeiture, under claim, or color of title derived from any source whatsoever, and who, or those under whom he claims,

shall have paid taxes thereupon for the five years in which such possession may have been or may be held; and in those in privity with such person, his heirs, representatives or assigns, as to the mineral or other interests or rights in or appurtenant to such land."

And further provided in section 4076h of the Statutes that:

"All title and claim to land transferred to, and vested in, the commonwealth under the provisions of this article and not purchased back by the owner or claimant, as provided by section 4 and not vested in the occupant, as provided in section 6 shall be sold to the highest and best bidder for cash in hand. Said sale shall be made pursuant to a judgment of the circuit court in said action, and shall be at public auction at the front door of the court house on the first day of some regular term of the circuit or county court, after notice of sale shall have been advertised in the manner required by law in the case of the sales of land under execution. The commissioner shall report the sale to the court for its confirmation, and, when confirmed, the court shall order the commissioner to make a deed to the purchaser. Such deed 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 6 of this article, and shall so recite."

In his answer Judge Lewis resists the attempt of the petitioner to compel him to enter judgments of sale, upon the ground thus stated:

"This defendant says that there are a great many people who reside within and who are otherwise in the actual possession of various parts of said 40,000 acres of land, and this defendant is informed, believes, and so states to be true, that the whole of said 40,000 acres is in such adverse possession of citizens and claimants, and was in such adverse possession at the time of the judgment of the Leslie circuit court aforesaid forfeiting the title of said Kentucky Union Company to said land, and they had listed and paid taxes thereon for more than five years before the entering of said judgment under claim and color of title, and have paid taxes thereon for five years before said judgment of forfeiture. He says that the purpose of said statute was to vest the title of the recusant owner or claimant of title, failing to list said land for taxes, in the actual occupant thereof, so as to clear said titles of the conflict between said adverse

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