Hensley v. Holly

5 Ky. Op. 493, 1870 Ky. LEXIS 457

• Court: Court of Appeals of Kentucky
• Decided: December 8, 1870
• Status: Published

Opinion

Opinion by

Judge Lindsay:

This was a triangular contest between the heirs of Edward Curd and Alfred Hensley, as to the ownership of a certain quarter section of land in Marshall county.

The land in contest was entered in the land office at Widesboro in the year 1833 in the name of Edward Curd, and was shortly thereafter surveyed by Edward Curd, senior, who at that time and whilst upon the land, claimed to be thep arty who had made the entry. Said entry was not carried into a patent during the' life time of said Curd, but on the 17th of February, 1866, his heirs procured the passage of an act of the General Assembly directing the register of the land office to issue a patent for said land in his name, which was accordingly done on .the 30th of November, 1866.

In the meantime Hensley had entered the same land in the land office at Mayfield and procured a patent therefor on the 19th of May, 1866. This action was instituted by the heirs of Edward Curd, who finally dismissed their petition, but the litigation was kept up between the heirs of Edward Curd, Sr., and Hensley.

Upon hearing, judgment was rendered in favor of Curd’s heirs, and Hensley prosecutes this appeal. He insists that Curd’s heirs, by failing to carry the entry of 1833 into patent within the time prescribed by an act of the General Assembly, approved the - day of March, 1858, forfeited all claim to the land under said entry. “That the act of February 17, 1866, was a private statute, and did not operate as notice either actual or constructive, of the rights Curd’s heirs acquired thereunder. That he had no actual notice of its passage nor of the claims of appellees. That he acquired his title in good faith, and that as he holds the elder patent, he is in estimation of law, the owner of the land and entitled to the possession of the same.” •

Lindsey, for appellant. Stubblefield, Gilberts, for appellees.

The pleadings and evidence warrant the conclusion that Holly and others who entered under the heirs of Edward Curd, Sr., were in the actual possession of the land at the time of the passage of the act of February 17, 1866, as well as at the time of the subsequent entry by Hensley of the same.

The act of February the 17th, 1866, invested them with at least an equitable title to the land as against the Commonwealth of Kentucky, and all who might subsequently acquire title through or from her. We cannot admit that said act, although technically private in its character, was not notice to all the citizens of Kentucky. The English rule with regard to private acts of Parliament does not prevail in this state where all acts of the General Assembly, private as well as public, are published at the public expense.

Besides the actual possession by the appellees at the time Hensley made his entry and procured his patent, was enough to put him upon enquiry as to the nature and extent of their claim. If these conclusions are correct, of which we entertain no doubt, it is evident that Hensley cannot be regarded as an innocent purchaser without notice.

Wherefore the judgment of the court below is affirmed.