Hensley v. Mattingly

266 S.W. 625, 205 Ky. 751, 1924 Ky. LEXIS 219

Opinion

Opinion of the Court by

Judge Clarke

Affirming.

This is an action by a junior patentee in his own name to have canceled an elder patent granted by the Commonwealth to the appellees, upon the ground that the latter was fraudulently procured by using his survey for the purpose. The lower court dismissed the petition, and plaintiff appeals.

A patent void for fraud may be avoided in a direct proceeding for that purpose, but such a suit must be maintained by and in the name of the Commonwealth. Jennings v. Whitaker, 4 T. B. Mon. 51; Bledsoe’s Devisees v. Wells, 4 Bibb 329; Marshall, et al. v. McDaniel, 12 Bush 378.

Plaintiff, therefore, had no right to maintain this action in his own name. Nor did he have the right, being a junior patentee, to use the name of the Commonwealth for that purpose, as'in Taylor v. Fletcher, 7 B. Mon. 80, it was held the elder patentee should be permitted to do.

Neither is there any proof of the alleged fraud, since it was clearly established by record evidence that appellees’ survey was filed in the land office before appel-. lant’s survey was made or the county court order entered authorizing it.

Judgment affirmed.