Kentucky River Coal Corp. v. Bayless

• Decision Date: 16 December 1955
• Citation: 318 S.W.2d 554
• Parties: KENTUCKY RIVER COAL CORPORATION, Appellant, v. Charles N. BAYLESS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 554

318 S.W.2d 554

KENTUCKY RIVER COAL CORPORATION, Appellant, v. Charles N. BAYLESS et al., Appellees.

Court of Appeals of Kentucky.

Dec. 16, 1955.

As Modified on Denial of Rehearing Dec. 12, 1958.

C. D. Carpenter, Bruce Stephens, Jr., Hazard, Hensley & Logan, Frank A. Logan, Fred B. Redwine, Louisville, for appellant.

A. E. Cornett, Hyden, McCann, Sledd, McCann, Lexington, Calvert Little, London, Logan E. Patterson, Pineville, Donald Q. Taylor, Louisville, for appellees.

CLAY, Commissioner.

In this action appellant, Kentucky River Coal Corp., sought to quiet its title to certain coal and minerals in a 48 acre tract and to recover damages from appellees for the wrongful removal of coal. Appellees moved for summary judgment, which was granted.

In 1903, John Counch, by deed of general warranty, conveyed to Tennis Coal Company, appellant's predecessor in title, the coal and minerals underlying the tract in controversy. In 1913, John Couch conveyed the fee simple interest in the same land by deed of general warranty to Lucy A. Nield, appellees' predecessor in title. However, there is no record showing that Couch ever had title to this land.

Three years later, in 1916, Lucy A. Nield took a quit claim deed for this same land from F. M. Sackett. Sackett's title is based on a deed executed to him by the Master Commissioner of the Leslie Circuit Court pursuant to a sale of the Souzade 40,000 acre patent of 1872 under the provisions of Carroll's Kentucky Statutes, Section 4076f to 4076k, commonly known as the forfeiture act.

It is stipulated that the Souzade patent is the senior grant and that appellees have a regular chain of title connecting with this grant.

The first ground urged for reversal is based upon the provisions of Carroll's Kentucky Statutes, Section 4076g. That section provided in substance that title forfeited to Commonwealth under its provisions is re-transferred to and vested in any person who had actual adverse possession for five years next preceding the judgment for forfeiture, under a claim or color of title, and who had paid the taxes thereon for five years. It is appellant's contention that by virtue of prior conveyances to and from Couch, it must be presumed that he was in adverse possession for the requisite time prior to the forfeiture judgment, and that the burden of proving otherwise was upon appellees who claimed under the forfeiture.

There seem to be three answers to this contention. In the first place, we can find no basis for presuming actual adverse possession by Couch or those claiming under him. In the second place, the burden of proving the requisite five year adverse possession would be upon appellant. Since it brought this action to quiet title, it could only recover on the strength of its own title, and that could only be established by a successful attack on the forfeiture title under which appellees claim. See Wilson v. Chappell, 244 Ky. 521, 51 S.W.2d 669; Flinn v. Blakeman, 254 Ky. 416, 71 S.W.2d 961; Nolan v. Wallen, 305 Ky. 416, 204 S.W.2d 574. In the third place, even if we assume appellees had the burden of proof, they sustained such burden on their motion for summary judgment. They filed the affidavits of three persons which tended to prove that the land had not been actually occupied by anyone, adversely or otherwise, for five years or at any time prior to the date of the forfeiture judgment. No counter-affidavits, or other proof, were introduced by appellant, and it agrees that the case had been fully developed insofar as its claim was concerned on the motion for summary judgment.

We therefore conclude that appellant's claim, based on adverse possession prior to the forfeiture judgment is without support in this record.

Appellant's second contention is one based on estoppel and has three parts. It is first sought to invoke the doctrine that where two parties claim title to property, and the title of both can be traced to a common grantor, both are estopped from denying the title of the common grantor and the party having the senior claim under that grantor will prevail. Gary v. Woosley, 199 Ky. 748, 251 S.W. 1015; Crawford v. Crawford, 231 Ky. 675, 22 S.W.2d 93. As heretofore stated, the predecessors in title of both appellant and appellees had taken deeds from John Couch, and appellant's title came through the earlier of these deeds. The fact remains, however, that both of the deeds of Couch were worthless because he had no title.

Subsequently appellees' predecessor obtained a good title to the property through the forfeiture judgment. It is appellant's contention that appellees are estopped to assert this good title.

Our attention has not been called to a Kentucky case extending the doctrine of estoppel as far as appellant would have us go. The cases cited generally support the proposition that where two adverse claimants trace their only chain of title to a common source, neither can impugn the title of the common grantor for the purpose of attacking the claim of the one having the prior deed. The rule certainly does not create a title where none existed, and is really one of procedure and evidence.

On this point no Kentucky case with facts similar to those of this case has been cited to us, and we have found none. In Combs v. Thomas, 304 Ky. 654, 201 S.W.2d 557, upon which appellant relies, while a source of title other than that of the common grantor was involved, the question here presented was not decided because the court held that the claim under the other source had been abandoned. It seems clear that the proposition contended for by appellant is not supported by the weight of the law of other jurisdictions. In 19 Am.Jur., Estoppel, Sec. 24, page 623, the rule is stated this way:

'It is now the generally accepted rule that when two persons derive title from a common source, one of them is not estopped to assert against the other a paramount title which he has subsequently acquired. He may even admit a common source, and then show that the title presently relied on is a paramount tax title.'

To the same effect is Jennings v. Marston, 121 Va. 79, 92 S.E. 821, 7 A.L.R. 860, at page 886, et seq.

An examination of the reason for the rule regarding adverse claimants from a common grantor will show its inapplicability in the present case. The rule developed in actions of ejectment and actions to quiet title. In such actions, inasmuch as the plaintiff was required to recover on the strength of...