October 1, 2012

Kidd v. Central Trust & Safe Deposit Co., Pulaski, 1901

KIDD v. CENTRAL TRUST & SAFE DEPOSIT CO.

COURT OF APPEALS OF KENTUCKY

65 S.W. 355; 1901 Ky. LEXIS 363; 23 Ky. L. Rptr. 1402

November 27, 1901, Decided

PRIOR HISTORY:  [**1] 
Appeal from circuit court, Pulaski county. Action by the Central Trust & Safe Deposit Company against E. B. Kidd. Judgment for plaintiff, and defendant appeals.

DISPOSITION: Affirmed.

COUNSEL: Curd & Smith, for appellant.

O. H. Waddle, for appellee.

JUDGES: O'REAR, J.

OPINION BY: O'REAR

OPINION

 [*355]  O'REAR, J. This is a conflict between two patents; the senior, granted in 1848, calling for 8,000 acres of land, excluding from the boundary 25,000 acres of land previously patented. The junior patent was issued in 1863, and lies entirely within the exterior lines of the other. A demurrer was sustained to paragraphs of the answer pleading certain defenses in behalf of the owner of the junior grant, which ruling is complained of on this appeal. The second paragraph pleaded limitation, in that the defendant and those under whom he claimed had been occupying and claiming adversely the land covered by the junior grant "for the period of     years," which, of course, was no plea. The defendant then relied on the statute against champerty, claiming that he was in the actual adverse possession of the land within the 200-acre junior grant, when appellee, the plaintiff, acquired title to the older one; that appellee acquired his title through a judicial  [**2] sale made in an action formerly pending in the Pulaski circuit court to foreclose a lien upon the title of the larger grant. It has been held in this state since the adoption of the present form of the champerty statute that title acquired under judicial proceedings other than sale under execution was not in violation of the champerty statute, although another was in the adverse possession of the land affected. Preston v. Breckinridge, 86 Ky. 619, 6 S. W. 641, 10 Ky. L. Rptr. 2. Further defense was made that the exterior lines of the senior patent were so indefinite, vague, and uncertain as to be incapable of location, and that the interfering patents of 25,000 acres, referred to as being excluded because of previous entry, were not set out so that they could be located; and that, therefore, the patent was void for uncertainty. Effort was made to bring it within the provisions of Hamilton v. Fugette, 81 Ky. 366. This patent, however, is materially different from the one involved in Hamilton v. Fugette. In this case the beginning corner is definitely located, and the calls are given with a minute circumspection to the following points: After calling for a stake in the road at James  [**3] Coffee's, the patent calls: "Thence 1,880 poles to a stake in the line dividing Whitley and Pulaski county; thence north up said line 1,870 poles, to the mouth of Morgan's creek, at Cumberland river; thence down said river binding thereon, S., 45 W.r 160 poles," etc. It is argued that because the call of 1,880 poles to the call in the dividing line of Whitley and Pulaski counties does not designate the course, and as Whitley county binds upon Pulaski for a number of miles, it is impossible to locate this important line. We are of opinion, however, that this is not such a difficult task, because the podnt at the mouth of Morgan's creek at Cumberland river must be a well-known, natural object, and by retracing the line of 1,870 poles with the Whitley and Pulaski county lines the point would be reached where the 1,880-pole call should end, and in this way the course of that call can be found. for these reasons the patent is not void because of any uncertainty in exterior lines; and this court has frequently held, and for a great number of years, that a patent will not be void because of uncertainty in the location of previously patented lands recited as being excluded.

 [*356]  It is claimed that  [**4] the owners of the larger patent involved in this case, being doubtful of its validity, procured an act to be passed by the general assembly in 1888 (3 Acts 1887-88, p. 591), applicable alone to Pulaski county, in which certain provision was made protecting the rights of junior patentees within grants that were void because of uncertainty. Before that act could be applicable to the case at bar, we would have to find that the patent in question was void. This, however, we have just determined is not so. It is not competent for the legislature to alter or change the rights of patentees or owners of land, for the patent issued by the state is a grant in the nature of a contract, which, between the patentee and the state, is inviolable so far as any subsequent act of the state is concerned, being protected by section 10, art. 1, of the federal constitution. And if the legislature intended by the act supra to alter the rights of the patentees by depriving one of his title to the land and conferring it on the other, such attempt was void. Having once parted with its title, the state could not dispossess its grantee, nor in any wise diminish his rights in the property granted him. It follows  [**5] that the court properly sustained the demurrer to the paragraphs of the answer setting forth the defenses just enumerated; and it appearing that the junior patent, under which appellant claims, was entirely within the exterior lines of appellee's patent, the court properly adjudged the junior patent to be void, and directed a writ of possession to issue in behalf of appellee.
The judgment is therefore affirmed.

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