Marshall v. McDaniel
| Decision Date | 08 September 1876 |
| Citation | 75 Ky. 378 |
| Parties | Marshall, & c. v. McDaniel. |
| Court | Kentucky Court of Appeals |
APPEAL FROM WARREN CIRCUIT COURT.
G. W CRADDOCK, For Appellants,
Revised Statutes, chapter 102.
Act of March 2, 1860, Myers's Supp. 286.
Act of 1801 (2 Stat. Laws, 1072).
Act of 1825 (2 Stat. Laws, 1079).
Act of 1822 (2 Stat. Laws, 988).
1 Littell, 59, Barbour v. Nelson.
3 Littell, 38,Robinson v. Huff, & c.
7 Cranch, 603, Fairfax's devisees v. Hunter's lessees.
3 Metc 56, Hartley v. Hartley.
3 Metc 215, Flippin v. Hays.
9 B Mon. 312, Beeler v. Coy.
4 Bibb, 554, Chiles v. Calk.
7 B. Mon. 82, Taylor v. Fletcher.
18 B. Mon. 327, Harlan's heirs v. Seaton's heirs.
EDWARDS & SEYMOUR, For Appellee,
CITED
Revised Statutes, sec. 1, chap. 59.
Act of March 2, 1860, sec. 1, Myers's Supp. 286.
Henning & Mumford's Va. Rep. 531, Kinney v. Beverly.
4 Mon. 51,Jennings v. Whitaker.
4 Bibb, 329,Bledsoe's devisees v. Wells.
4 Dana, 501, Cain v. Flynn.
7 B. Mon. 83, Taylor v. Fletcher.
4 Dana, 443, Pearls v. Davis.
1 Dana, 481,Gaines, & c. v. Buford.
11 Bush, 51, Munford v. Carpenter.
10 Bush, 725,Commonwealth v. Jones.
The appellant, J. B. Marshall, July 4, 1871, caused a survey to be made of 120 acres of land in Hart County as vacant and unappropriated land subject to entry upon a warrant and certificate issued by the county court of that county, as authorized by chapter 102, Revised Statutes, and the act of March 2, 1860. (Myers's Supp. 286.) Marshall sold and assigned his plat and certificate for the 120 acres of land so surveyed to his co-appellants, Wm. B. Thompson and Wm. Gardner. The survey was duly filed in the office of the register of the land office.
The appellee, F. W. McDaniel, Sept. 11, 1871, filed his caveat in the office of the register of the land office against the issuing of a patent on said survey, which was certified by the register, and filed in the clerk's office of the Hart Circuit Court Sept. 16, 1871, where it stood for trial, but was subsequently removed to the Warren Circuit Court.
The plaintiff, in the caveat, claimed a better right to the land under a patent issued Dec. 12, 1826, to Bush & Thompson. He also claimed that he and those under whom he claimed had had an actual continued adverse possession for more than forty years. The defendants in their responses put in issue the allegations of the caveat, alleged that the patent to Bush & Thompson was obtained by fraud, and was therefore void; that the survey would not close; that the calls of the survey were fictitious and false; that the land had become forfeited to the commonwealth by the failure of patentees, or some one for them, to list the land for taxation or to pay taxes thereon, etc.
While it is true the survey of Bush & Thompson will not close unless the courses and distances set out are to some extent disregarded, yet as the boundary lines are all established by reference to other surveys, there can be no substantial difficulty in locating the patent issued on the 12th of December, 1826.
From about the year 1836 the appellee and one Green have been in the actual possession of the tract of land covered by that patent, and have been all the while claiming to own it, professing at the same time to be the vendees of the patentees, or of their heirs at law.
It is useless to inquire as to the sufficiency of the conveyances under which they claim. The continued actual adverse holding for the period of near thirty-five years has perfected their title as against all the world, unless it be the commonwealth.
The patent to Bush & Thompson can not be treated as void on account of any frauds that may have been practiced by the patentees in procuring it. Even if it were shown that they and the register of the land office had fraudulently combined to cheat the commonwealth, and that they each and all knew the patent boundaries embraced 2,000 instead of 800 acres, these facts would avail nothing in a collateral proceeding like this. In order to avoid the patent the commonwealth must have it annulled in a direct proceeding. (Jennings v. Whittaker, 4 Mon. 51; Bledsoe's Devisees v. Wells, 4 Bibb, 329.) It is not pretended that this patent has been so annulled.
Even if it be admitted that the patent covers land lying within the surveys of Baldwin, this fact will not militate against the title of the appellee. His possession invests him with the estate that Baldwin may have held, and it is immaterial whether as to the latter the patent was or not void. Hence it results that in 1871, when the survey was made of the 120 acres claimed by appellants, the commonwealth had no title unless it was reinvested with title by the failure of Baldwin and of Bush & Thompson to list the lands for taxation.
By section 5 of an act approved Dec. 19, 1801 (2 Statute Laws, page 1072), it was provided that " any person (infants and persons non compos mentis excepted) claiming lands in this state and failing to list the same for taxation, in case of a resident when legally called on by a commissioner of tax, and in the case of a non-resident, with the auditor on or before the first day of October next, shall for and in consequence of such failure forfeit his or her claim to this commonwealth."
In the construction of this act it was held by this court that the failure by claimants of lands to comply with its provisions did not ipso facto divest them of title and vest it in the commonwealth, but that in each case an inquest of office found was essential to make complete and effectual the forfeiture.
But afterward, on the 12th of January, 1825, it was enacted " that in all cases where any lands shall hereafter be forfeited for failing to list for taxation, or stricken off to the state, the title of such lands shall vest in this commonwealth by virtue of this act without any inquest of office found, unless said lands shall have been redeemed according to law." (2 Stat. Laws, page 1079.)
Appellants do not claim that the lands covered by the patent to Bush & Thompson were ever stricken off to the state, nor that the supposed forfeiture has at any time been perfected by a proceeding made a matter of record. But upon proof of the fact that the public records fail to show that for certain years whilst the act of 1825 was in force, and before appellee claims to have acquired title, Bush & Thompson failed to list the lands for taxation, they insist the title was forfeited to the commonwealth, and that the lands were therefore subject to entry under the provisions of the act of March 2, 1860.
Conceding that the proof shows prima facie the lands were not listed for taxation, and that the failure to list falls within the scope of the act of 1825, we will proceed to inquire whether it was within the power of the legislature to provide for the infliction of such a penalty without an inquest of office found?
In pursuing this inquiry we need not call in question the power of the legislature to provide for the levy and collection of taxes in the most...
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