4 Dana 38
Court of Appeals of Kentucky.
Payne v. Riley.
Apr. 9, 1836.


CHIEF JUSTICE ROBERTSON delivered the opinion of the Court.
Riley and Payne, each being the patentee of the same land under the statute of 1815, authorizing the appropriation of vacant territory in this state--the Circuit Court, on a bill filed for that purpose by the former, decreed that the latter relinquish to him his legal title, deemed by that court paramount in judgment of law.

A grant, under the act of 1815, for appropriating the vacant lands in this state, has relation to the time of the survey, and vests the legal title from that date--provided, the plat, &c., are lodged in the Begister's office within one year; otherwise the title vests at the date of the registry:--hence, a patent upon a survey registered within the year, confers a title paramount to an elder patent on an elder s??vey, not registered within the year, nor until after the date of the conflicting survey.

The relinquishment of an adverse claim to one who already has the better ?? egal title, can not be decreed, unless there is some impediment to the suit at law, to give the chanceller jurisdiction.

That decree is now to be considered.

It appears that Payne's survey, made in 1819, was not registered until sometime in 1829--after the date of Riley's survey, which was made in March, 1829; but that nevertheless Payne's grant was issued prior to that of Riley, whose survey was registered within the time prescribed by the act of 1815.

The application of the ninth and eleventh sections of the statute to these facts will leave but little room to doubt that, though Payne's patent is the oldest, his legal title is inferior to that of Riley. The ninth section provides that the legal title "shall relate to the time of survey;"--and it is declared by the eleventh section that the legal title vested by a patent issued on a survey not registered within the time (one year) prescribed by law, shall have relation to the time when the survey was actually registered and that "the title conveyed by such grants shall, "in contests with other claimants, be considered valid from the date of the registry only--and not from the date of the survey, as is herein provided for those claims which are registered in time." It thus appears, according to those enactments, that Riley's legal title coeval with the date of his survey, registered within a year after it was made, is superior and prior to the legal title of Payne which, by operation of law is simultaneous with the registry of his plat and certificate since the date of Riley's survey; and consequently, Riley's legal title seems to be superior to that of Payne.

Hence a question of jurisdiction at once arises.

Riley having according to the facts exhibited, the paramount legal right, a Court of Equity had no jurisdiction to decree a relinquishment by Payne unless there was some obstruction to Riley's legal remedy by entry or action. No such obstruction has been shown, or even suggested. It does not appear that Riley was in possession of the land claimed by each. And Payne's patent shows, on its face, that his plat and certificate were not registered until June, 1829, after the date of Riley's survey. That patent, therefore, appearing on its front to be posterior, in judgment of law, to that of Riley, could present no obstacle to the establishment of Riley's legal right in any of the ordinary legal modes, but would always, whenever and wherever exhibited, show facts which would establish, by operation of law, the inferiority of Payne's legal title. We are, therefore, of the opinion, that there is no ground for the interposition of a Court of Equity.

Wherefore, the decree of the Circuit Court is reversed, and the cause remanded with instructions to dismiss the bill, for want of jurisdiction.

Ky.App. 1836.
Payne v. Riley.
34 Ky. 38, 4 Dana 38, 1836 WL 1999 (Ky.)


     

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