223 Ky. 517
Court of Appeals of Kentucky.
Feb. 3, 1928.
Rehearing Denied April 13, 1928.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by R. L. Blakeman against B. B. Golden and others.
Judgment for plaintiff, and defendants appeal.

The appellee brought this action against the appellants to quiet his title to a described boundary of land. The appellants by their answer and counterclaim asserted title to 54 acres of the tract described in the appellee's petition. On final submission, the court quieted the appellee's title to all the land described in his petition, including the 54 acres in controversy, and from that judgment appellants bring this appeal.

The facts are not in dispute. The appellee proved his title back to a patent issued to Maurice Nagle by the commonwealth of Virginia in 1787. A link in this chain of title is a commissioner's deed to the appellee under a sale held pursuant to a judgment entered in a suit brought in accordance with section 4076b et seq. of the Statutes to forfeit the title of this Nagle patent for nonpayment of taxes. The appellants traced their title back to a patent issued by the commonwealth of Kentucky in 1846. It is agreed that the possession of the appellants began in August, 1915, and ceased on May 24, 1920, during which time the appellants paid taxes on these 54 acres.

Section 251 of the Constitution reads:
"No action shall be maintained for possession of any lands lying within this state, where it is necessary for the claimant to rely for his recovery on any grant or patent issued by the commonwealth of Virginia, or by the commonwealth of Kentucky prior to the year one thousand eight hundred and twenty, against any person claiming such lands by possession to a well-defined boundary, under a title of record, unless such action shall be instituted within five years after this Constitution shall go into effect, or within five years after the occupant may take possession; but nothing herein shall be construed to affect any right, title or interest in lands acquired by virtue of adverse possession under the laws of this commonwealth."

Section 2377 of the Statutes, enacted to carry into effect this section of the Constitution, is quite similar in wording. It will be noted that this section of the Constitution provides that no action can be maintained for the recovery of land held under a Virginia patent issued prior to 1820 against a person claiming such lands under "a title of record."

It follows that if section 2377 of the Statutes and section 251 of the Constitution be not violative of the Virginia compact, a question we do not here decide, they only apply to where a defendant is holding under a patent issued by the commonwealth. Does such a patent have to be a valid one? It will be remembered that the patent under which the appellants claim was issued in 1846. It is a junior patent. The Nagle patent, issued by the commonwealth of Virginia in 1787, is the senior patent. Prior to 1835 the statutory law provided in substance that junior patents were "inferior" to senior patents, but since 1835 the junior patents are void. The act of 1835, which now substantially appears as section 4704 of our Statutes provides, in substance, that only vacant land should thereafter be subject to appropriation, and that every patent thereafter issued should be void so far as it embraced lands previously entered, surveyed, or patented.

From these cases, it appears that the rule is that where a person is required by statute to base his claim on a "title of record" or on a "public record" he must trace his title back to a valid patent. As the appellants claim under a patent issued in 1846, and as this is a junior patent which under the act of 1835 is a void patent, it follows that the appellants have no "title of record," within the meaning of section 251 of the Constitution or section 2377 of the Kentucky Statutes, for which reason these sections afforded the appellants no defense to the appellee's cause of action.

The next question for determination is whether the defense of champerty, interposed by the appellants, is good or not. This defense is based on the fact that at the time the commissioner's deed to the appellee mentioned above was executed, the appellants were in adverse possession of the land in controversy. It is conceded that the defense of champerty is, ordinarily, not available as against a commissioner's deed executed under a sale held pursuant to a judgment in a judicial proceeding. It will be remembered that under the act of 1906, if the forfeited title be not redeemed by the owner of the title within the time prescribed by that act, the forfeited title inures to the benefit of and is vested in those who have held actual adverse possession of the land 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 such holder claims have paid taxes thereupon for the five years in which such possession may have been or may be held. Section 4076g, Kentucky Statutes. In this Davidson Case, we held that, although the judgments did not exclude such lands, it was nevertheless the duty of the court to enter the judgments of sale so tendered. We said:
"The purchaser at this sale will not, by virtue of his purchase or its confirmation by the court, be authorized to oust any of these claimants (five- year adverse holders who have paid taxes) of their possessions or interfere with their holding. The purchaser will only acquire title to so much of this land as is not held by the class of occupants described in section 4076g. He will buy the land subject to the rights of these occupants. The statute so declares, providing that the deed to the purchaser '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 4076g of this article.' * * * The purchaser will only get title to so much of the land as these occupants are not entitled to hold, and the occupants can only be ousted when it is shown by the purchaser that they do not come within the saving of the section under which they hold. If they do not come within the saving of this section (4076g), then of course they are not protected in their occupancy by it."

Some contention is made that the appellee at the judicial sale held under the judgment of forfeiture here involved bought this land in through his agent who transferred his bid to the appellee. There is no merit in this contention, for under the familiar rules of agency the purchase by the agent was the purchase of the appellee.

We are therefore of the opinion that the defense of champerty is likewise not available to the appellants.

It results therefore that the judgment of the lower court quieting the title of the appellee is correct, and it is affirmed.

Whole court sitting.

Ky.App. 1928.


3 S.W.2d 1095, 223 Ky. 517

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