Flinn v. Blakeman

• Decision Date: 02 March 1934
• Citation: 71 S.W.2d 961,254 Ky. 416
• Parties: FLINN et al. v. BLAKEMAN et al.
• Court: Kentucky Court of Appeals

71 S.W.2d 961

254 Ky. 416

FLINN et al. v. BLAKEMAN et al.

Court of Appeals of Kentucky

March 2, 1934

As Modified on Denial of Rehearing June 1, 1934.

Appeal from Circuit Court, Knox County.

Action in equity by Robert L. Blakeman against James H. Flinn, Mary F. Stevens, and others to quiet title. From a judgment for plaintiff, the named defendants appeal.

Affirmed.

Martin T. Kelly, of Pineville, for appellants.

H. H Owens and G. M. Manning, both of Barbourville, for appellees.

DRURY Commissioner.

Robert L. Blakeman, by petition, filed March 30, 1929, asked to have his title quieted to 12,000 acres of land, he was accorded that relief and James H. Flinn and Mary F. Stevens have appealed.

Blakeman made the appellees James H. Flinn, Mary F. Stevens, Elisha Vaughn, Granville Delph, and Martha Delph defendants. Granville Delph in his answer disclaimed any interest in the land except that he declared he occupied it as tenant of Flinn and Stevens. Flinn and Stevens filed seven paragraphs of answer. The first is a traverse of the petition, the second is a plea of ownership in themselves of 2,400 acres of land or thereabouts which they described with particularity and to which they asserted title by adverse possession, and by counterclaim sought judgment establishing their title to it. The third paragraph was an attack upon the forfeiture proceedings through which plaintiff derived his title. The fourth paragraph was a denial that the 12,000-acre tract included the tract to which Flinn and Stevens asserted title. The fifth paragraph was a plea of champerty. The sixth paragraph was simply the third paragraph stated in different language, and the seventh paragraph was a defense under section 4076g, Ky. St. They asked that the petition be dismissed and that they be declared the owners of the land they had so particularly described.

Four months later they amended their answer and made Thos. D Tinsley, C. P. Kennedy, and G. M. Manning parties. These three, as well as Elisha Vaughn and Martha Delph, appear to have done nothing and they filed nothing. Blakeman traversed the answer of Granville Delph and the answer of Flinn and Stevens by reply. Some two years later Flinn and Stevens withdrew, from their answer, their counterclaim and left it a defensive pleading only.

Plaintiff's Title.

On August 19, 1784, by virtue of treasury warrants 21400 and 21440 issued December 19, 1783, James Jenkins made entry of 12,000 acres of land to be laid off adjoining Samuel Overton's entry.

On April 23, 1786, there was surveyed for James Jenkins 12,000 acres of land lying and being in the county of Lincoln on the waters of the south fork of Kentucky river adjoining Samuel Overton's survey of 10,000 acres on the south and bounded as follows: Beginning at Overton's S.E. corner at a black oak tree corner to Overton, thence with Overton's line W., 1,264 1/2 poles to a white oak, Overton's S.W. corner, thence S. 1,518 1/2 poles to 2 white oaks, thence E. 1264 1/2 poles to a white oak and dogwood, thence N. 1,518 1/2 poles to the beginning.

September 27, 1786, Jenkins assigned this survey to Maurice Nagle and on July 24, 1787, a patent for that tract was issued to Nagle by the state of Virginia.

On May 8, 1919, the commonwealth's attorney for the Thirty-fourth judicial district began an action in the Knox circuit court to forfeit to the commonwealth the Nagle title to that land for nonpayment of taxes and such proceedings were had that the title was forfeited and the land sold, at which sale it was purchased by C. P. Kennedy who on May 6, 1920, in open court, acknowledged transfer of his purchase to R. L. Blakeman, whereupon the master commissioner was directed to and on the following day did make and deliver deed conveying that 12,000 acres to Blakeman.

Defendant's Title.

Defendants asserted and sought to establish that Campbell Smith had lived on and exercised ownership over this 2,400 acres from 1870 to April 13, 1891, when he sold it to Churchill, who, on March 5, 1892, sold it to Kentucky Mineral & Timber Company, which was sued by Campbell Smith upon the purchase-money notes, and, as a result, the land was reconveyed to Smith on June 12, 1895; that on December 15, 1895, he conveyed it to R. C. Ford, who on October 3, 1910, conveyed it to Mary T. Garrard; that on July 24, 1911, she conveyed it to Elisha H. Flinn upon whose death in November, 1911, it passed to Jas. H. Flinn and Mary F. Stevens, his only children and heirs at law.

Thus we find Blakeman has the paper title and this forces Flinn and Stevens to take the laboring oar and in some way overthrow Blakeman's title or else to show that they and their predecessors in title have as disseizors ousted Blakeman and his predecessors in title.

The Burden of Proof.

In saying what we have just said we are not unaware of things we have said in former opinions. In Kentucky Union Company v. Commonwealth, 128 Ky. 610, 108 S.W. 931, 110 S.W. 398, 33 Ky. Law Rep. 9, 49, 587, one of the very first cases which arose under the Forfeiture Act, this court said: "The doctrine of caveat emptor applies in this, as in other proceedings. And the purchaser, and not the occupant, as argued by counsel for appellant, would be required to show in actions to recover under his purchase, that the land claimed by him was not of the excluded class."

The opinion in the Kentucky Union Case was followed and approved in Davidson v. Lewis, Judge, 159 Ky. 798, 169 S.W. 538, and after quoting the language above set out made this further remark respecting a purchaser under the Forfeiture Act: "If he (the purchaser at the sale) attempts to dispossess any of them (the occupants), as he may do, in an action brought directly against them for that purpose, he must show, as said in the Kentucky Union Case, 'that the land claimed by him was not of the excluded class."'

Flinn and Stevens are relying on these expressions.

Now let us look at those cases. In the first case the court succinctly states the questions involved are: "(1) Is article 3 of the Revenue and Taxation Act, approved March 15, 1906 ADLaws 1906, c. 22], a constitutional exercise of legislative authority? (2) Is the judgment erroneous, in that the petition fails to allege or the judgment to ascertain the various persons who had occupied and paid taxes on lands within said 40,000-acre boundary for five years next preceding the judgment of forfeiture? (3) Did the court err in entering judgment of sale at the same term of court at which the judgment of forfeiture was entered?"

The binding authority of that opinion must be found in the court's answer to those questions. We are not now concerned with the answer to question 1. The court in answering question 2 said: "Appellant contends that, if the act is constitutional, the petition is defective, and that the general demurrer thereto should have been sustained, because the petition fails to disclose what parts, if any, of the land described in the petition, is held by occupants who have paid taxes thereupon for the five years preceding the judgment of forfeiture; and that the judgment is erroneous because it does not segregate the parts to which the forfeited title would inure. So far as disclosed by the record, there is no part of the tract held by occupants. But the court judicially knows, and it was admitted in argument, that practically, if not quite, all the land described in the petition is adversely held by occupants under claim or color of title. The record shows only that the appellant is the owner or claimant of the title to the tract of land, which is specifically described by metes and bounds, courses and distances, and that appellant has failed to comply with the provisions of the article with respect to the listing of it for taxes and the payment of taxes thereon. The petition contains all the allegations necessary to show that appellant was delinquent, and its title subject to forfeiture, and the demurrer thereto was therefore properly overruled. Nor is the judgment erroneous on that ground. Certainly the title to the tract of land described in the petition, and which is adjudged to be subject to forfeiture and sale, can be sold by the same description, the purchaser taking that which, under the article, passes at the sale."

When that was written the court had decided the question before it. The court, however, continued writing, and in the subsequent part of the opinion wrote the part cited above upon which Flinn and Stevens rely. It was pure dictum, and the court in writing it was attempting to decide cases that might thereafter arise between occupying claimants and the vendee of the title of the Kentucky Union Company when it was sold after forfeiture.

We will now take up the second case, Davidson v. Lewis. That was an original proceeding in this court, for a writ of mandamus to compel Judge Lewis to enter judgments in two cases pending before him. The same situation existed in each case. All this court had to do was to say to Judge Lewis that he must enter judgments in each case. It could tell him he must make a decision in each case, but it had no power under its original jurisdiction to tell him what sort of a judgment he should enter. So long as the judge was proceeding within his jurisdiction, all this court could do was to compel him to act. It could not control his discretion by telling him what to do. Williams v. Howard, 192 Ky. 356, 233 S.W. 753; 38 C.J. p. 634, § 139; 18 R. C. L. p. 299, § 232.

So much therefore of the opinion in the Davidson Case as required Judge Lewis to take action is the whole of the binding effect of that decision, and those parts of that opinion dealing with questions that might thereafter arise in actions to be thereafter brought is only...