Eastern Kentucky Coal Lands Corp. v. Commonwealth

• Decision Date: 20 June 1908
• Citation: 111 S.W. 362
• Parties: EASTERN KENTUCKY COAL LANDS CORP. v. COMMONWEALTH. TWYMAN v. SAME. GILL et al. v. SAME.
• Court: Kentucky Court of Appeals

111 S.W. 362

EASTERN KENTUCKY COAL LANDS CORP. v. COMMONWEALTH.

TWYMAN v. SAME.

GILL et al. v. SAME.

Court of Appeals of Kentucky.

June 20, 1908

Appeals from Circuit Court, Pike County.

"Not to be officially reported."

Separate actions by the commonwealth of Kentucky against the Eastern Kentucky Coal Lands Corporation, J. C. Twyman, and G. B. Gill and others, to forfeit defendants' title to certain lands for noncompliance with the statute respecting the listing and payment of taxes thereon. From a judgment for plaintiff defendants file separate appeals. Affirmed as to the Eastern Kentucky Coal Lands Corporation and G. B. Gill and others reversed and remanded as to J. C. Twyman.

C. C McChord, Edward W. Hines, and McChord, Hines & Norman, for appellant Twyman.

Wehle &amp Wehle and L. B. Wehle, for appellant Gill.

Hoppin & Berard, James H. Hazelrigg, Wm. Jackson Hendrick, and R. L. Miller, for appellant Eastern Kentucky Coal Lands Corporation.

Kohn, Baird, Sloss & Kohn, Hager & Stewart, Thos. H. Paynter, James Breathitt, and J. Morgan Chinn, for the Commonwealth.

LASSING J.

These appeals were sued out upon the same record, involve the same questions, and were argued and will be considered together. Under the provisions of article 3 of the act of the Legislature entitled "Revenue and Taxation," approved March 15, 1906 (Laws 1906, p. 115, c. 22), the commonwealth of Kentucky filed its petition in equity in the Pike circuit court against appellants, the Eastern Kentucky Coal Lands Corporation, J. C. Twyman, and others, seeking to forfeit the title of appellants to the lands described in the petition upon the alleged ground that they had not complied with the provisions of the article with respect to the listing of the same and payment of taxes thereon as of September 15, 1901, September 15, 1902, September 15, 1903, September 1, 1904, and September 1, 1905. Appellants Eastern Kentucky Coal Lands Corporation and J. C. Twyman were served with process. Appellants G. B. Gill and others were made defendants as unknown defendants, owners, and claimants, as authorized by the article, and were constructively served with process by warning order, as required by the Code, against nonresident and absent defendants, and also by publication, as required by the act.

The petition described the land, the title to which was sought to be forfeited, by giving the patents, their dates, where recorded, and number of acres contained in each. It also described the land by metes and bounds and courses and distances, and there were filed with it copies of each of the patents, containing in the aggregate over 300,000 acres. It was further alleged that the defendants Eastern Kentucky Coal Lands Corporation, J. C. Twyman, and the unknown and absent defendants were the owners or claimants of the land under the patents named, and that neither the original patentees nor any person in privity with them, nor the Eastern Kentucky Coal Lands Corporation, J. C. Twyman, or the other named, but not appealing, defendants, nor the unknown defendants had ever listed the land, or any part of it, for taxation, or paid any taxes thereon, alleging specifically that they had so failed to list or pay taxes thereon levyable and assessable as of the dates above named. Appellants Eastern Kentucky Coal Lands Corporation and J. C. Twyman filed general demurrers to the petition. After these had been overruled they filed separate answers; the former setting up claim to all of the land described in the petition, and the latter claiming in connection with the other heirs of one Reuben Twyman, one of the three patentees named in one of the patents, to be the owner of the land described in that patent, containing about 7,500 acres. The answer of the corporation, in addition to traversing some of the allegations of the petition, pleaded affirmatively that in compliance with the provisions of article 3 it had filed its petition in the county court of Pike county before January 1 1907, seeking to have the land claimed by it assessed as of said dates, and filed therewith copies of the proceedings in that action in the county court, and upon appeal in the circuit court. By this record it was shown that the corporation appellant in December, 1907, had filed its petition in the Pike county court, claiming to comply with the provisions of the act, and at the same time attacking its constitutionality; that the county court, denying the sufficiency of the petition, but sustaining the validity of the act, dismissed the petition; and that a similar judgment had been entered in the circuit court upon appeal to it. The answer of J. C. Twyman was similar in all material respects, but he prosecuted no appeal to the circuit court from the judgment of the county court. While the action of Commonwealth v. Eastern Kentucky Coal Lands Corporation, J. C. Twyman, and others, seeking to forfeit their title, was pending, and before trial and judgment, this court, in the case of Eastern Kentucky Coal Lands Corporation v. Commonwealth of Kentucky, 106 S.W. 260, 32 Ky. Law Rep. 129, affirmed the judgment of the Pike circuit court in dismissing the petition of said corporation to list, upon the ground that it did not comply with the mandatory provisions of the act, and sustaining the constitutionality of article 3, upon which this forfeiture proceeding is now based. The suit in equity was thereupon tried before a jury, as the act provides it shall be; and, a verdict having been rendered in favor of the commonwealth against all defendants, judgment was entered forfeiting the title of appellants, and each and...