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Taylor v. Commonwealth

December 6, 1951

TAYLOR
v.
COMMONWEALTH



Combs, J., not sitting.

Stanley

STANLEY, Commissioner. In 1907 the Commonwealth of Kentucky filed its petition in equity in the Pike Circuit Court against numerous defendants, including George H. Taylor, of Norfolk, Virginia, seeking to forfeit their title to the land described in the petition (aggregating over 750,000 acres) upon the ground that the defendants had failed to list the property for taxation and to pay the taxes thereon in compliance with the provisions of Chapter 22 of the Acts of 1906, Kentucky Statutes, 1936 Edition, Sections 4076b to 4076k, inclusive, relating to the assessment of old land grants. On February 14, 1908, a judgment of forfeiture was entered, but the case was retained on the docket for further proceedings. Several of the defendants appealed, and the judgment was affirmed. Eastern Kentucky Coal Lands Corp. v. Commonwealth, 111 S.W. 362, 33 Ky. Law Rep. 857. The constitutionality of the Forfeiture Act of 1906 had been upheld in Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667, 106 S.W. 260, 108 S.W. 1138, and the Kentucky Union Co. v. Commonwealth, 128 Ky. 610, 108 S.W. 931, 110 S.W. 398, 33 Ky. Law Rep. 9, 587. The decisions were affirmed in Kentucky Union Co. v. Com. of Kentucky, 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137.

Section 4 of the Forfeiture Act gives the owner of any of the forfeited grants the right to redeem the land by paying 50 years' taxes after having established title sufficient to support an action of ejectment. Section 6 provides that all titles forfeited to and vested in the Commonwealth and not purchased back by the owners or claimants as provided in Section 4, shall be transferred to and vested in any person for so much thereof as such person has had the actual adverse possession for five years next preceding the judgment of forfeiture under the claim or color of title, and who shall have paid the taxes thereon. Section 7 provides that all title to land vested in the Commonwealth and not purchased back by the owner or claimant as provided in Section 4 and not vested in the occupant as provided in Section 6 shall be sold to the highest and best bidder for cash. After the payment of the costs of the action and the taxes, the remainder shall be paid over to the former owner or claimant or his personal representative or assigns.

The judgment of forfeiture entered on February 14, 1908, concluded as follows: 'All other questions not herein specifically adjudged are reserved for further adjudication.' No further steps were taken in the case until May 10, 1947, when George H. Taylor, a defendant in the 1907 suit, filed a motion in the circuit court asking for an order of sale of land described in the petition as Tract No. 21, known as the Haskell patent, as was prayed in the original petition of the Commonwealth. It was described as: 'All that part that is situated in Pike County, Kentucky, West of the top of the ridge that divides the waters of Levisa Fork from the waters of Tug Fork of Sandy River, of that certain tract or parcel of land, containing 300,000 acres by survey bearing date the 28th day of November, 1795, granted by the Commonwealth of Virginia to Benjamin Haskell, by letters patent bearing date the 16th day of February, 1797, * * *'.

The Commonwealth set forth a number of reasons why the motion should be overruled. The court overruled the motion on the ground that it was barred by the statute of limitations and by laches. Taylor then brought mandamus proceedings in this court against the judge of the Pike Circuit Court to require him to enter the order of sale, but mandamus was refused as not being the proper remedy. Taylor v. Stephenson, 309 Ky. 68, 215 S.W.2d 947. He has now appealed from the order overruling his motion.

In the forfeiture of lands in Leslie County, Kentucky Union Co. v. Commonwealth, 128 Ky. 610, 108 S.W. 931, 110 S.W. 398, 33 Ky. Law Rep. 9, 587, affirmed 219 U.S. 140, 31 S.Ct. 171, 55 L.Ed. 137, the judgment did not order a sale. A motion similar to that made in the case at bar was overruled by the circuit court. In an original proceeding, this court directed the trial judge to enter the order for the sale of the entire body of land. Davidson v. Lewis, 159 Ky. 798, 169 S.W. 538. See for distinction in procedural rights or remedies, Taylor v. Stephenson, supra. Naturally, the appellant relies upon the Davidson case. The different states of fact distinguish it from the present one. There Davidson moved seasonably. The apparent purpose of not ordering a sale at the time the judgments in both cases were rendered was to await final determination of the constitutionality of the act. The opinion of the Supreme Court affirming our decision of constitutionality was delivered January 3, 1911. Making allowance for time necessary for the filing of the mandates here and in the Leslie Circuit Court and for further proceedings, Davidson moved without delay. He filed his action in this court in the summer of 1914. But Taylor waited until May, 1947, or thirty-nine years after the judgment of forfeiture in his case became final. Therein lies the difference. Upon that difference this case turns.

Though perhaps not necessary, it seems desirable in the interest of full disposition of the case to dispose of certain contentions of the Commonwealth.

It appears that at a special term of the Pike Circuit Court in 1911 the judge, on the call of the docket, wrote the word 'off' beside the name of the case. Striking a cause from the docket does not dismiss it or result in loss of jurisdiction. It merely removes the case from the active docket, and leaves it subject to being reinstated. Hays v. Baker, 237 Ky. 265, 35 S.W.2d 296; Goff v. National Rubber & Leather Co., 249 Ky. 363, 60 S.W.2d 944. Further proper proceedings in the case may be seasonably taken.

We do not accede to the argument that the appellant, Taylor, may not be heard because he has no interest in the land forfeited and is but a volunteer seeking to have it sold. The Commonwealth made him a party defendant and described the interest he was claiming. He made a defense by special and general demurrers. It is inconsistent now for the Commonwealth to claim that he never had any interest or any right to have had his claim adjudicated.

The Commonwealth argues that appellant lost all rights by the repeal of the Forfeiture Statute. It is not necessary to decide if it was constitutionally repealed. We think the right of the appellant as a party to the suit, whatever it might have been, was vested by the judgment and could not be abrogated or extinguished by a repeal of the statute. KRS 446.110; Baldwin v. Commonwealth, 11 Bush 417, 74 Ky. 417; Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871, 882; 50 Am.Jur., Statutes, Sec. 526.

It is conceded that nearly all of the Haskell patent tract had been appropriated and titles of various occupants perfected by possession. But the appellant says that, 'Lying in between these larger tracts of land were and still are numerous relatively small and irregular parcels, principally along the mountain ranges, which were not owned by any of the local people, being the so-called vacant parcels, title to which was forfeited to the Commonwealth' by the judgment. He charges that mining and oil development companies have appropriated and developed these parcels without hinderance from anyone because of the failure of the court to order a sale. Further, that there is no way in which the title may be recovered or taxes thereon collected except by a sale in accordance with the provisions of the Forfeiture Act. The Commonwealth, of course, concedes that the title of the occupying claimants was not affected by the forfeiture and seems also to agree that there were some parcels, title to which would have passed by the sale and the net proceeds have gone to the unoccupying claimants. Under this state of fact it would appear that Mr. Taylor should have shown that there was some unoccupied land unredeemed and have identified it. However, that very point was the justification offered by Judge Lewis in the proceeding in which this court required him to enter the order of sale in Davidson v. Lewis, supra. The statute was construed in that opinion as contemplating that the whole body of land forfeited should be sold, the purchasers, and not the occupants, being required to show in actions to recover under their purchase that the land claimed by them was not of the excluded class. However, the opinion in the Kentucky Union case, 128 Ky. 610, 108 S.W. 931, 110 S.W. 398, stated that after final judgment of forfeiture it might be to the interest of the Commonwealth to sell only certain parts as prescribed by the court. See Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 6 Cir., 137 F.2d 871, op. cit. 887, a case of special interest involving the very judgment we have here. We need not go into the apparent conflict in construction. Whether here it should be the one or the other, the controlling consequence of delay by the appellant in moving for an order of sale would be the same.

The judgment in this suit, as provided by Sec. 5 of the Act, decreed that title to the land embraced is now 'transferred to, and vested in, the Commonwealth'. We are not now concerned with the right to relief of any occupying claimant. Other defendants, (such as was the appellant, Taylor), or those in privity with them could have obtained relief by asserting their claims before or during the term at which the judgment of forfeiture was entered and offering to purchase the land back by paying taxes, etc. Sec. 4. It was further provided that all title and claim to land not so purchased back by the owner or claimant or not vested in an occupant 'shall be sold to the highest and best bidder for cash in hand.' After payment of taxes, costs, etc., the balance was payable 'to the former owner or claimant or his personal representative or assigns.' Sec. 7. The appellant claims this provision as to sale is mandatory and that such sale should yet be had. Without such action, the title to the land, which was not recovered, remained vested in the Commonwealth.

The Commonwealth did not follow up the prayer of its petition that such unredeemed titles and claims be sold. It may have been that its representatives understood that there was nothing left to be sold or that what was left was of little value. It was probably because the primary objective of the statute and the proceeding had been accomplished. Whatever the reason, the Commonwealth then had a judgment forfeiting the land and held title thereto. The appellant would shift all responsibility to the state for not selling the uncleared titles. He and the other claimants of his class had a right to have those titles sold and the proceeds distributed. It was to their greater interest that it should be done and it was incumbent upon them to seek affirmative relief if desired. The appellant now asserts that right which existed then and continued to exist for a reasonable time thereafter. Such a step was timely taken in the Leslie County case of Davidson v. Lewis, supra, 159 Ky. 798, 169 S.W. 538. Mr. Taylor's omission has given rise to the present situation.

The appellant, of course, had full knowledge of the facts and the law governing the suit. A party may abandon a particular proceeding to enforce a cause of action or legal right. Abandonment may be implied or presumed from his acts and conduct or omissions. 'It is generally held that a long and unexplained delay raises a presumption of abandonment which may justify the court in refusing to allow further prosecution of the action even though there is no intention to abandon.' This may be determined by the facts and circumstances of the particular case. 1 C.J.S., Actions, ยงยง 138, 139. This court has recognized that a party by his voluntary conduct may abandon the enforcement of a judgment in his favor and be deprived of a right to make a ...


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