Bement v. Commonwealth ( 1920 )

Opinion of the Court by

Judge Thomas —

Reversing.

This suit was filed in the Perry circuit court in the name of the Commonwealth by Ira Fields, Commonwealth’s Attorney, on April 24, 1912, for the purpose of forfeiting the title of the known and unknown defendants in the petition to all that part of about 200,000 acres of land lying in Perry county, covered by various patents originally issued to A. F. Baum and William M. Smith. The petition was filed pursuant to the provisions of Article III, Chapter 108 of the 1915 edition of the Kentucky Statutes (Volume 2), being sections 4076b to 4076k, inclusive.

The appellants, Bement and Wilson, with a number of others, were named in the petition as known defendants, and it was alleged that there were a number of unknown defendants, and that plaintiff did not know the residence or postoffice address of any of the defendants, either known or unknown. A warning order attorney was appointed for the named and known defendants, and another was appointed for the unknown ones. In due time each of them filed his report in which he stated in substance that he knew of no defense to the action.

A number of claimants to certain parcels or aliquot portions' of the land filed their intervening petitions describing the lands to which they held title, and judgments were rendered adjusting the rights of the intervenors, none of which judgments are involved in this appeal.

On September 27, 1912, there was a default judgment forfeiting all of the title of the original patentees, Smith and Baum, and all subsequent title holders through them, except such titles as were held by the intervenors and disposed of upon their - intervening petitions. In that judgment, which was based upon the verdict of a jury, the lands covered by the original patents were described, but there was no description of them in the petition, only the numbers of the patents being given, nor were the original patents or any copies thereof filed with the petition, nor were any such filed either before or after the judgment.

At the time of the rendition of the judgment none of the appellants, who, according to the record are the owners of all the interest in the land adjudged to be forfeited, had any knowledge of the pendency of the proceedings, they being non-residents of this State.

At the next term of the court, and on March 4, 1913, having in the meantime become apprised of the filing of the petition and of the judgment of forfeiture, appellants, after due notice to the Commonwealth, entered a motion to vacate and set aside the judgment of forfeiture, and to permit them to file their answer and intervening petition, which motion was sustained. In their pleading subsequently filed they denied the allegations of the petition and affirmatively alleged that'the land attempted to be forfeited had been assessed for the years 1906 to 1911, inclusive, as of the first of September in each of them and the taxes subsequently paid to the proper authorities, it being for the non-assessment of the lands as well as the non-payment of the taxes thereon for those years that the petition sought to forfeit the title.

On May 16, 1913, a motion was made by appellants to take the allegations of their answers as true, but there does not appear in the record any order of the court with reference thereto, except that at a subsequent term of the court the Commonwealth made a motion to set aside the order taking the allegations of the answer as true, from which we conclude that the motion was sustained. The motion last mentioned as having been made by the Commonwealth was entered on May 28, 1914, and asked not only that the order taking the allegation of appellant’s pleading to be true be set aside, but also 'that the one setting aside the judgment of forfeiture, be set aside. These motions made by the Commonwealth more than a year after the court had sustained appellant’s motions were made without notice to appellants and wore sustained by the court on the same day they were made and the original judgment was re-entered, without the intervention of another jury.

On January 11, 1916, after the land had been advertised for sale under the re-entered judgment of forfeiture, appellants moved to set aside the last orders above, made at the instance of the Commonwealth, which motion was overruled, and from the various adverse rulings of the court, they prosecute this appeal.

This case is a twin suit to that of Bement v. Commonwealth, 172 Ky. 452. The. parties to the two suits are the same, and in each of them a forfeiture of a portion of the lands covered by the same patents is sought, the only difference being that in the reported case a forfeiture was sought only of so much of the land covered by the patents as lies in Leslie county, while in the instant one a forfeiture is sought of that portion of the lands covered by the same patents as lies in Perry county. The petitions in both cases were verified on the same day, though filed thirteen days apart.

One of the requirements of section 4076d of the statutes, under the provisions of which the petition was filed, is that “There shall be filed with it (petition) a copy of the grant or instrument upon which the title or claim sought to be forfeited is based; and no other title, claim or possession or continuity thereof, whether owned or claimed by the defendant or others, shall be forfeited or in any manner affected by said proceeding.”

In the Bement case, supra, after a lengthy discussion, this court held that such requirement was a jurisdictional one, and that a judgment by default based upon a petition without such exhibits and which petition does not contain a description of the land was void, and that an appeal might be prosecuted from an order overruling a motion to set it aside at any time allowed by law, regardless of the provision of the statute for an appeal “within thirty days after the same (judgment) may be entered.” In the course of the opinion .the court said:

“"When it is sought to forfeit land under this drastic statute, the title papers describing the land must be filed with the petition, as directed in the statute, and this record furnishes a good example of the necessity for requiring that the title papers be filed with the petition before a judgment by default can be taken. There is no description whatever in the body of the petition of the land sought to be forfeited, or in any exhibit filed with it or in the record. The land- in the petition, as well as in the judgment, is merely described by what is alleged to be the numbers of the patents. It is, therefore, plain that no person could by an examination of the petition or the judgment, or indeed the entire record, have the remotest idea where the land was located, its boundary, or how many acres it contained. This information could only be obtained, if at all, by securing from the registration office at Frankfort the patents on which the titles of the forfeited land depended.”

That opinion is conclusive of the question presented by this appeal. The only difference between the two cases is that in the Bement case it”does not appear that the judgment described the lands adjudged to be forfeited, while in the instant one such description is contained in the judgment. But, according to our view, this fact can add no validity to the judgment based upon a fatally defective petition. The description of the land which the statute required to be contained in the petition or some exhibit filed therewith as held in the Bement case, being a jurisdictional fact, is made necessary in order to bring the rem. before the court and to give it jurisdiction thereof.' If it has no such jurisdiction, no judgment affecting the rem can be rendered. The instant case being so identical with the one referred to, it becomes unnecessary for us to extend this opinion any further, or to discuss the alleged errors of the court in sustaining the motion of the Commonwealth to set aside the order vacating the first judgment of forfeiture and in overruling appellant’s motion to set aside that ordex*.

The petition being insufficient, the original judgment forfeiting the land, as well as the subsequent re-entry thereof, is void, and upon a return of the case the court should dismiss the petition unless a curative amendment is filed, which, if done, the court should require the Commonwealth to respond to the pleading filed by appellants and proceed with the trial of,the case, but if no responsive pleading should be filed by the Commonwealth within the time allowed, then the petition should be dismissed.

Wherefore, the judgment is reversed, with directions to proceed in accordance with this opinion.