On Petition for Rehearing.
Appellant, in its petition for rehearing, complains of the statement in the opinion: “There is no showing in the record that Boyd had any interest in the land at the time of, or subsequent to, the commencement of the forfeiture action.” Appellant urges that this statement is contradicted by the record. It is true that in the original forfeiture action plaintiff alleged: “By deed dated October 2, 1905, recorded in deed book No. 41, page 146, Pike County Court Clerk’s office, one George H. Taylor of Mobile, Alabama, without exhibiting any authority other than that the statement in the deed is that he is the son of Maria Taylor, conveyed said tract of land to the defendant George H. Taylor, of Norfolk, Vir-ginia, which said conveyance was after the execution of deed by Maria A. Taylor to one Wilson H. Jonas, under whom the said Robert Boyd Claims.”
Construing the petition as a whole, we interpret this paragraph to mean that Maria A. Taylor, in her lifetime, conveyed the property to Wilson H. Jonas, therefore that George H. Taylor, her heir, had no interest in the land which he attempted to convey.
Appellant filed in this action the affidavit of Roy C. Holbrook, in which he stated that he had examined the record title to *886the Haskell Grant and that during the years 1900 to 1906, the title to that part of the grant lying in Pike and Floyd Counties, Kentucky, was in Charles Selden and Robert A. Boyd and that each of them later conveyed his said title to Neis T. Arvidson, a grantor of appellant. In the same paragraph of Holbrook’s affidavit, he states that according to the records of the Pike County Court, Maria A. Taylor on August 29, 1884, conveyed her entire interest in the Haskell Grant to Wilson H. Jonas, and that on May 23, 1894, Jonas conveyed his interest to Robert A. Boyd.
In the original forfeiture petition, it was alleged that on March 20, 1908, Robert A. Boyd conveyed his entire interest in the Haskell Grant to Robert Fletcher Rogers. It will therefore be seen that according to the record of deeds, which appellant in no way disputes, Boyd had no interest in the Haskell Grant at the time of the institution of the forfeiture action and since that time has acquired none. The statement of Holbrook that from 1900 to 1906 the title to that part of the Haskell Grant lying in Pike and Floyd Counties was in Charles Selden and Robert A. Boyd is only an expression of opinion by the affiant which statement is without record support and ignores the recorded conveyance of Boyd to Rogers.
Appellant says that we improperly applied the rule that the failure of the Clerk to note on the original petition the posting of the notice at the court house door was a mere irregularity. The reasoning of the opinion on the subject of said posting may not be comprehensive or satisfactory, but the conclusion reached is correct. As to whether the petition was posted was a question of fact. It is readily admitted that a judgment once void cannot be made valid by the lapse of time, but time may authorize the presumption of an extraneous fact which the record does not show and which was indispensable to the validity of the judgment and which the record should exhibit. It may be said in passing that the judgment in question must stand or fall by the same rules of law as any other judgment. Cooper v. Reynolds, 10 Wall. 308, 77 U.S. 308, 321, 19 L.Ed. 931; Christianson v. King County, 239 U.S. 356, 373, 36 S.Ct. 114, 60 L.Ed. 327. The fact that it decreed a forfeiture does not make it peculiar. It is true that forfeitures are not favored and one who asserts a forfeiture in support of his title carries the burden of making clear proof of the loss of property in this way, but when a forfeiture is judicially decreed, the fact which brought it about merges into the judgment and whoever attacks the judgment carries the burden of showing its invalidity by clear and convincing evidence.
Appellant at the bar relies on a copy of the record thrice removed from the original. A copy of a copy compared with other evidence has many frailties, for the more remote a thing from the original, the weaker its evidential value. There is always present the possibility that an error may have occurred in the first transcription and the number of chances of error increases with each successive copy.
The same record which shows the absence of the Clerk’s indorsement on the original petition, contains a statement in the report of the warning order attorney that a copy of the petition, together with all exhibits, had been posted at the court house door. The Court of Appeals of Kentucky in its opinion, stated that the owners and claimants as authorized by the statute were constructively served with process by warning order as required by the Code against non-resident and absent defendants and' also by publication as required by the Act.
Fairly weighing the evidence in the record of the posting of the notice and considering the lapse of time since the judgment in question was entered and the fact that the records are lost, it seems tO' us that the only judicial deduction now possible is that the petition was duly posted at the court house door as required under the statute.
The case of Payne v. Johnson’s Exrs., 95 Ky. 175, 24 S.W. 238, 609, cited in the opinion is a miscitation and is withdrawn.
Appellant seeks to avoid the application of the rule of res judicata to the payment of taxes by claiming that no issue was made or tried in the forfeiture case respecting the listing of the Haskell Grant or the payment of taxes on it in Knott, Floyd or Letcher Counties. A short answer to this is that appellant has made no showing in the case at bar that the grant was ever listed for assessment or any taxes paid in any one of the three counties mentioned.
Appellant urges that we fell into error in holding that a sale of the forfeited lands was not mandatory under the statute pursuant to a decree of forfeiture and that in this connection we failed to give effect to *887the cases of Kentucky Union Company v. Commonwealth, 128 Ky. 610, 108 S.W. 931, 110 S.W. 398, and Davidson v. Lewis, 159 Ky. 798, 799, 169 S.W. 538.
In the Kentucky Union case, the Court of Appeals of Kentucky decided that after a final judgment of forfeiture of land under the statute here in question, the principal purpose to be served was the interest of the Commonwealth and as it might be desirable or necessary to sell only certain parts of the tract forfeited, the court should prescribe what parts thereof were to be sold and that a judgment was erroneous which authorized the sale of the tract as a whole or in parcels to suit the purchaser.
The Davidson case was an action instituted by citizens and taxpayers of Leslie County, Kentucky, seeking a mandamus against the Judge of the Thirty-Third Judicial District to require him to enter a judgment ordering the public sale of lands theretofore forfeited to the Commonwealth under the Forfeiture Statute here involved. The Court of Appeals decided that the petitioners were entitled to a sale of the whole body of land forfeited but that the purchaser would take under his purchase only so much of the land sold as had not vested in taxpaying occupants.
The concept of these two cases is that the title to forfeited lands vests absolutely in the Commonwealth at the time of the entry of the judgment of forfeiture and that the former owners or claimants who were parties to the action have no interest in the land. In the case of Bowling v. Hacker, 194 Ky. 112, 238 S.W. 369, the Court of Appeals decided that the Act with which we are concerned related only to titles held under and by virtue of the grant of, and patent by, the Commonwealth of Kentucky or by the Commonwealth of Virginia while Kentucky was a part of it, and that the statute did not provide for the forfeiture of any other title, claim or possession of the same land, although the owner or claimant of such adverse title to the grant or patent was a defendant in the forfeiture proceedings. It therefore held that under Section 7 of the Act, a forfeiture of any title provided for, which was not purchased back by the owner or claimant thereof as provided by Section 4 of the Act by operation of law, was immediately transferred to and vested in the one who by himself alone, or by himself and immediate vendors, held any part of the land claimed by, or under, any character or color of title for as much as five years immediately preceding the forfeiture, by adverse possession and who paid the taxes thereon for the same time, and that the purchaser of the forfeited title acquired no interest in the land covered by the forfeited patent to any of the land so held.
As we interpret the opinions of the Court of Appeals of Kentucky in the cases on which appellant relies, none of them decide that a sale of forfeited lands is a prerequisite to finality of the judgment in proceedings under the statute.
Appellant takes exception to the statement in the opinion that the testimony of Holbrook was not the best evidence of the contents of the record to which he referred and insists that the court should have adopted the rule that any person who has examined offices or records may swear and so prove matters as are not there of record. The rule is well settled that the custodian of records who has made diligent search to discover whether a writing is or is not of record and finds that it is not, may be allowed to testify to that fact, without being required to produce the record in which such fact, if any, would appear. Meyer Motor Car Company v. First National Bank, 154 Md. 77, 140 A. 34; Mannus-Dewall v. Smith, 139 Okl. 195, 281 P. 807; World Oil Company v. Hicks, Tex. Civ.App., 75 S.W.2d 905.
There is authority for the proposition that the absence of a record may be proved by any competent person who has made a search therefor. Compton v. Fender, 132 Ga. 483, 64 S.E. 475; City of Beardstown v. City of Virginia, 81 111. 541, but the majority of cases hold that the custodian, when accessible, is the only competent witness. Norris v. Russell, 5 Cal. 249; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Sykes v. Beck, 12 N.D. 242, 96 N.W. 844; Osmak v. American Car & Foundry Company, 328 Mo. 159, 40 S.W.2d 714, 77 A.L.R. 722; Smith v. First Nat. Bank, 45 Neb. 444, 63 N.W. 796; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Milbourn v. State, 168 Okl. 168, 32 P.2d 291. Compare Federal Rules of Civil Procedure, Rule 44(b), 28 U.S.C.A. following Section 723c.
The rule seems to prevail in Kentucky that the official custodian’s testimony is required if available. Stamper v. Commonwealth, 100 S.W. 286, 30 Ky.Law Rep. 992. Under the facts of the case at bar, we *888follow the Kentucky case most applicable to the decision.
The opinion is amended by striking therefrom the full sentence beginning at line 34, page 881, which reads as follows: “He made no statement as to the dates his examination covered or what, if any, of the books were missing.” And also by striking all of that paragraph beginning with the word “but” in line 18, page 884, down to and including the word “defense,” line 7, on page 885.
We have given careful consideration to other grounds urged by appellant for a rehearing but find them without merit.
Appellant’s petition for rehearing is denied.