Kentucky Union Co. v. Commonwealth

*615 Opinion op the Court by Judge Lassing

Affirming in Part, Reversing in Part.

This appeal presents for consideration questions as to the constitutionality of article 3 of the revenue and taxation act, approved March 15, 1906 (Acts 1906, p. 115, c. 22), and of practice and procedure thereunder. On the 20th day of April, 1907, the Commonwealth of Kentucky, by Ira Fields, Commonwealth’s attorney, in and for the Thirty-Third judicial district of Kentucky, which includes Leslie county, filed its petition in the Leslie circuit court against appellant, alleging, among other things, that on the 12th day of June, 1872, the Commonwealth of Kentucky granted to Stephen Gr. Reid, by letters patent, 40,000 acres of land in Perry, now Leslie, county, Ky., a copy of the grant being filed with, and as a part of, the petition. The petition also described the land by metes and bounds, courses and distances, and alleged that the corporate defendant, appellant here, under, through, and by virtue of divers mesne conveyances from the patentee, was the claimant of said tract of land under said patent. The petition further alleged that appellant and its predecessors in title had failed to list said tract of land, or any part of it, for assessment and taxation, as of September 15, 1901, September 15, 1902, Sep>tember 15, 1903, September 15, 1904, and September 15,1905, and had so failed to list the same as of each and all of said dates, and had failed to pay the taxes charged, and which should' have been charged against said tract of land assessable as of said dates, and had failed to pay such taxes assessable as of any of said dates. The prayer was for judgment against appellant, forfeiting and transferring to the Commonwealth *616 of Kentucky all of appellant’s claim, title, right, and interest in and to all of said tract of land and for costs. By an amended petition the-prayer was enlarged and' asked for a sale of all the title, interest, and claim of appellant in and to all of said tract of land. Appellant appeared and filed general demurrer to the petition at -September rules, 1907, which was -overruled at the regular October term; The appellant elected to stand on its demurrer, and declined to answer. At the same term the case was set -down- for hearing and trial before a jury, -and, -upon a verdict in favor of plaintiff, the court entered -a judgment forfeiting’ and .transferring to the Commonwealth the right, title, interest, and claim of-appellant in and to the said tract of land described in' -the petition and judgment; and further adjudged that the1 title so-forfeited and transferred to the Commonwealth be -sold by the master commissioner: The judgment'-contains the usual provisions for á sale- by a -master commissioner, and authorizes the commissioner to sell said tract of--land as a whole •or in parcels to suit purchasers. -By further-provision .of the'judgment, the mastér commissioner was directed not to advertise the sale until after the close of the regular February, Í908, term of court.] Complaining of errors in this judgment, appellant prosecutes this -appeal. • ■ ■

Appellant, confessing as true the allegations of the petition, relies for a reversal upon the alleged unconstitutionality of the act upon which proceedings-were based, and further claims that as the petition jdid not allege, nor the - judgment ascertain, what parts of the 40,000 acres had been occupied, and taxes paid thereon by occupants, the petition is defective, and the judgment erroneous. The questions thus presented for determination by this court are: (1) Is article 3 of the *617 revenue and taxation act, approved March. 15, 1906, a constitutional exercise of legislative authority? (2) Is the judgment erroneous, in that the petition fails to allege or the judgment to ascertain the various persons who had occupied and paid taxes on lands within said 40,000-acre boundary for'five years next preceding the judgment'of forfeiture? (3) Did the court err in entering judgment of sale at the same term of court at which the judgment of forfeiture was entered? The constitutionality of this article was considered and upheld by this court in an exhaustive opinion written by Chief Justice O'Rear in Eastern Kentucky Coal Lands Corporation v. Commonwealth, 127 Ky. 667 , 106 S. W. 260 , 32 Ky. L. R. 129, and it is not necessary to again refer to the various objections there urged and passed upon by the court. Upon further consideration, we are satisfied that the conclusions there reached are correct.

It is contended by appellant that under the act of 1906 a failure to list land for assessment and to pay the taxes thereon for the years 1902, 1903, 1904, 1905, and 1906 is visited with a different and heavier penalty than was provided by law in force during those years. It is by no means certain that the act accomplishes any such result; but, if it did, it would result in making void only the penalties and interest provided for the default, and would not affect any other portion of the- act. The act expressly provides that it is enacted in detail, and that each provision shall stand by itself, unaffected by any other portion that for any reason might be invalid. The act is a comprehensive revenue measure, and this result would follow had there been no such provision. It was clearly competent for the Legislature to prescribe that the amount to be paid to remove cause of forfeiture should be the *618 taxes, without interest or penalties, for the years .named; and if, in adding penalties and interest, the Legislature exceeded its constitutional authority, the article would be void only in so far as it exceeded such authority, and the penalty and interest would bel eliminated. The penalty and interest can be stricken out, and' that which remains is complete within itself, and capable of being executed in accordance with tie apparent legislative intent. Similar objections were urged in Hoke v. Commonwealth, 79 Ky. 567 , 3 Ky. Law Rep. 407 , and Muir’s Adm’r v. City of Bardstown, 120 Ky. 739 , 87 S. W. 1096 , 27 Ky. Law Rep. 1150 , and in each case where penalty was provided the act was held void only to the extent of the penalty imposed.

No question, however, concerning the validity of the provisions of the act'as to what penalties the appellant should pay for its delinquency during the years 1902, 1903, 1904, 1905, and 1906 arises in this case. It has not attempted either to list its land or offered to pay any taxes, though the act gave ample time, after it became a law, for compliance with its provisions. Mulvey v. Boston (Mass,) 83 N. E. 402 (decided January 14, 1908); Terry v. Anderson, 95 U. S. 628 , 24 L. Ed. 365 ; Black on Tax Titles, sections 279-286. Had'the appellant attempted to comply, it could then have contested or disregarded any unconstitutional provision of the act. As we held in the case of Eastern Kentucky Coal Lands Corporation v. Comth., 127 Ky. 667 , 106 S. W. 260 , 32 Ky. L. R. 129, it was competent for the Legislature, in the exercise of the taxing power, to provide a forfeiture1 for a failure to list property for assessment and pay the taxes due thereon. The penalty of forfeiture provided by the act is not for a past delinquency, but for a *619 failure to list and pay after the act went into effect, and within the time there provided. We are here concerned only with this feature of the act, and it has no semblance of an ex post facto law.

Appellant contends that, if the act is constitutional, the petition is defective, and that the general demurrer thereto should have been sustained, because the petition fails to disclose what parts, if any, of the land described in the petition, is held by occupants who have paid taxes thereupon for the five years preceding the judgment of forfeiture; and that the judgment is erroneous because it' does not segregate the parts to which the forfeited' title would inure. So far as disclosed by the record, there is no part of the tract held by occupants. But the court judicially knows, and it was admitted in argument, that "practically, if not quite, all the land described in the petition is adversely held by occupants under claim or color of title. The record shows only that the appellant is the owner or claimant of the title to the tract of land, which is specifically described by metes and bounds, courses and distances', and that appellant has failed to comply with the provisions of the article with respect to the listing of it for taxes and the payment of taxes thereon. The petition contains all the allegations necessary to show that appellant was delinquent, and its title subject to forfeiture, and the demurrer thereto was therefore properly overruled. Nor is the judgment erroneous on that ground. • Certainly the title tó the tract of land described in the petition, and which is adjudged to be subject to forfeiture and sale, can be sold by the same description, the purchaser taking that which, under the article, passes at the sale. The doctrine of caveat emptor applies in this, as in other proceedings. And the purchaser, and not *620 the occupant, as argued by counsel for appellant, would be required to show, in actions to recover under his purchase, that the land claimed by him was not of the excluded class. The rule is universal that, where one seeks to recover under a grant or deed which does not convey all the land within the boundary described, he must show that the land sought to be recovered is within the boundary and without the exclusions. Hall v. Martin, 89 Ky. 9 , 11 S. W. 953 , 11 Ky. Law Rep. 241 , The act provides that the deed shall -transfer to the purchaser the title and claim “so forfeited and transferred to, and vested in, the Commonwealth, as remains .in it after the operation of section six of this article, and shall so recite.” The article, taken as a whole, clearly shows that such was the legislative intent. It is not necessary for the petition to describe more than the tract of land the title to which is sought to be forfeited: After the judgment of forfeiture becomes final, the main purpose to be conserved is the interest of the Commonwealth, and circumstances might arise or be shown to exist that would authorize different modes, of executing it. We have no hesitancy in holding that it is not necessary for the judgment to ascertain and describe the parts of the tract held by occupants. If at the hearing it should be made manifest that the title as to certain parts only of the tract would pass to the purchaser under a sale, the statute would be complied with by a sale of the title covering those parts alone. In any event, it is the duty of the court to prescribe what parts thereof shall be sold, if less than the whole is to be sold. Therefore the judgment appealed from, in so far as it authorizes the commissioner to sell the tract as a whole or in parcels to suit the purchaser, is erroneous.

Another error in the judgment of sale is that it was *621 rendered at the regular October term, 1907, of the Leslie circuit court, the term at which the judgment of forfeiture was entered. By section 4 of article 8 it is provided that “if before or during the term of circuit court, next succeeding the term at which a judgment of forfeiture may have been entered,’’.the defendant in privity with the title so vested in, and forfeited to, the Commonwealth, should file his counterclaim, accompanied by bond, and ask to be allowed to purchase back the property, he should be allowed to do so upon the. terms prescribed in the article. The defendant, by the express' provisions of the act, has until the close of the first term of court after the term at which the judgment of forfeiture is entered in which to file this petition; and it was error for the circuit court to order a sale of the property before the time had elapsed in which the defendant could file his petition and bond to purchase back the property. It is insisted that this premature entry of the judgment of sale is not error because it becomes inoperative if the defendant should,, within the time authorized by the act, file its petition to purchase the property back. But the judgment of the court was a final order from which an appeal could be, and now is being, prosecuted, and the circuit court had no control over it, after final adjournment of. the term at which it was entered. The judgment of sale therefore was erroneous.

It is earnestly insisted that the article in question is a repeal to a certain extent, at least, of the statute against champerty. But in this we do not concur. The purchaser, in an action to recover the land, or part thereof, would still be required to prove his claim of title as if there had been no forfeiture or sale. The utmost that could be claimed is that the commis *622 sioner’s deed made pursuant to a judgment of court is not ordinarily subject to the provisions of the statute as'against champerty. Conceding this to be true, the only link in the chain Of title against which the plea of champerty could be interposed would be the commissioner’s deed made pursuant to the sale directed by the judgment; and this plea would not extend to any link in 'the chain of title, antecedent to the commissioner’s deed. But- is the commissioner’s deed made under this- article subject to the plea of champerty? In section 3 of the article in question it is provided that “no other title, claim, or possession, or continuity thereof, whether owned or claimed by the defendant or by others, shall be forfeited, or in any manner affected by said proceeding. ” And by section 4 of the article it is provided that “no person except a defendant, and no defendant except as herein provided, shall be allowed to purchase back from the Commonwealth, the title so forfeited to, and vested in, it, except such defendant as may, but for su<pL forfeiture, establish in such proceeding, a title thereto in himself, upon which he could maintain an action of ejectment.” As was stated in Farmers’ Bank of Ky. v. Peter, 13 Bush, 591 : ‘'The purchaser takes what’ he gets. The rule of caveat emptor applies in all its vigor to sale of real property” — the sale referred to being a sale by a commissioner under decree of, court. From the provisions of the act above quoted it is manifest that it was not the intention of the Legislature to take from an occupant any defense that he might theretofore have had, whether of champerty or otherwise. It is expressly stated that no title, claim, possession, or continuity thereof, by whomsoever owned, shall in any manner be affected by said proceeding. We are therefore of the- opinion that the benefit of the *623 plea of champerty is not only not taken from the occupant, hut it is preserved to him as against the commissioner’s deed itself, and that such deedr does not come within the general rule that the plea of champerty is not available as against a commissioner’s deed. In Commonwealth v. Rosenfield Bros. & Co., 118 Ky. 374 , 80 S. W. 1178 , 82 S. W. 433 , 26 Ky. Law Rep. 726 , the court, quoting from EndlicB on Interpretation of Statutes, section 295, says: “Where the language of a statute, in its ordinary meaning and grammatical construction, leads to manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship, or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This is done sometimes by giving an unusual meaning to particular words, sometimes by altering their collocation, or by rejecting’them altogether, or by interpolating’ other words — under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended wha,t its words signify, and that the modifications thus given are mere corrections of careless language, and really give the true intention. The ascertainment of the latter is the cardinal rule, or rather the end and object, of all construction; and, where the real design, of the Legislature in ordaining a statute, although it be not. precisely expressed, is yet plainly perceivable or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though in so doing the exact letter of the law be sacrificed, or though the construction be, indeed, contrary to the letter.” This rule is re-enunciated in an opinion of this court by Judge Barker, *624 filed March 17, 1908, in the case of Morrell Refrig. Car Co. v. Comth. of Kentucky, 128 Ky. —, 108 S. W. 926 , 32 Ky. Law Rep. 1285 . If it were possible to construe’ the’ act in question as contended for by appellant with respect to champerty, which we do not. hold, the rule announced by this court in the above cases would preclude such a construction. But there is nothing in the act indicating such an intention upon the part of the Legislature. Its whole purport1 is to the contrary, and by specific provision it declares that the title, claim, or possession of the o.ccupants, or the continuity thereof, should not, in any manner, be affected by the proceedings. If the occupant has had five years’ possession, coupled with the payment of taxes, the forfeited title devolves upon him. If he has not had possession for a sufficient length of time to cause -a vestiture of title in him, he nevertheless is in possession; and, as a sale of the forfeited title to the extent of his possession would be champertous, the title thereto remains in the Commonwealth, and the possession of such occupant, or the continuity thereof, is not in any manner affected thereby. The title to those parts not transferred to the occupant, or which is not adversely held, is alone the subject of sale, and the title to only such parts would pass upon a sale in gross.

The judgment is affirmed in so far as it adjudges a forfeiture of the title and claim of appellant, but for the reasons indicated, and because it orders a sale of the land and not of the forfeited title, it is reversed for proceedings not inconsistent with this opinion.