Burkhart v. Loughridge

| Ky. Ct. App. | Oct 29, 1903

Opinion of ti-ie court bx

JUDGE O’REJAR

(Reversing.

In this ejectment suit brought by appellees against appellant, the latter set up claim of an equitable title to 100 acres of land by reason of a title bond alleged to have been executed by appellees’ grantor, Wm. Turner, Sr., in 1874.. Appellant claimed in his answer that the title bond had been executed by Turner July 5, 1874, to one Ingle, and assigned by the latter to appellant in 1900; that owing to the loss, of the title bond it could not be filed. Appellees claim by derivation from Turner’s heirs. Appellant also averred that appellees had notice and knowledge of Ingle’s claim when they bought from Turner’s heirs. Appellant was ruled by the court to file his title bond with his answer. He responded that he could not because it was lost or misplaced, and after diligent search he was unable to find it, and did not know where it was. Appellees controverted the response, and pleaded that the alleged bond was a forgery, and was a part of a fraudulent scheme of appellant’s and Ingle’s to steal the timber from the land. The circuit court heard proof' at the bar concerning the alleged loss of the bond. Appellant testified that he had lost it since he had had it recorded in the county clerk’s office. His statements do not entirely satisfy the mind, and in some features tend to discredit his good faith in the matter. The circuit court made the rule absolute, and appellant failing to file the bond, his answer was stricken from the files, and judgment entered against him on the merits of the case. We are of opinion that the court erred in these rulings.

In the first place, appellant was not compelled to file the alleged bond before the trial of the action, or at least before some evidence was introduced by him bearing on its genuineness. This bond or paper was only evidence of appellant’s title, as a deed or other writing, tending to show title, might have been. A party is not required to file his title papers before the time of trial, but may do so. Section 128, Civil Code. The only papers which a party is required to file with his pleadings are those mentioned in section 120 of the Civil Code, to-wit: “If an action, counter-claim, set-off or cross-petition be founded on a note, bond, bill, or other writing as evidence of indebtedness, it must be filed as part of the pleading, if in the power of the party to produce it;- and if not filed, the reason for the failure must be stated in the pleading; if upon an account, a copy thereof must be filed with the pleading. ” Under the old Code, section 155 required that, “if either party shall rely upon any deed or other writing, he shall file with his pleading the original deed or writing if within his power,” etc. It was also provided that when filed they should “remain on file for inspection of either party until allowed to be withdrawn by the court.” The present Code contains no such provisions.

It is true the genuineness of the bond relied on by appellant is attacked’. Unlike a deed duly acknowledged and certified, or an official copy of such deed, the instrument does not prove itself, but its execution by the putative makers must be shown affinnatively by the party relying on it or claiming under it. Its being recorded as allowed by section 500 of the Kentucky Statutes does not change this rule. This ■section of the statute was not enacted to enable the transfer of title to real estate.by title bonds, as is done by deeds. Nor was it designed to change the rules of evidence as to the genuineness of such papers. It was only to give notice to future creditors and purchasers of the equity created by the bond. The bond remained only a bond to be enforced, rescinded, or defeated by the parties to it, or by any other person affected by it, as if it had never been recorded. Its being recorded imparts to the bond no more legal force, except as serving as a notice to creditors and purchasers, than if it- were not recorded. If the party claiming under a title bond fails to avail himself of the provision of the Civil Code '(section 128) allowing him to file it in advance as evidence on his behalf, the trial court has it in his power to allow the other party reasonable opportunity after it is filed to contest its genuineness and to prevent surprises.

In the next place, appellant was entitled to a tidal of the-issue tendered to the effect that appellees knew of the existence of this claim and title in Ingle when they bought. If they did know of it, then they could not be innocent purchasers, and protected' against it as such.

The judgment is reversed, with directions to set aside the judgment as well as the order striking appellant’s answer from the files, and for further proceedings not inconsistent herewith.