146 Ky. 402 | Ky. Ct. App. | 1912
Opinion of the Court by
Affirming.
Prior to December 18, 1847, one Pearson Duncan owned and resided upon about three hundred acres of land near what is now known as Gray’s Station, in Knox County, Kentucky. He conveyed the whole of the land, on the day named, to his daughter, Malinda Brittain. The deed was duly executed by Duncan, the clerk made out the proper certificate, the taxes were paid and the deed lodged with the clerk for record. No part of it was recorded, except the body of the deed and the signature. The deed was taken from the office by Brittain, and it appears that the failure to record the clerk’s certificate, was not discovered until 1907, which was after this litigation was instituted. It appears that Mrs. Duncan, the wife of Pearson Duncan, did not sign the deed, but as she only owned a dower interest in the land and is now dead, that fact does not affect the questions involved in any way. Pearson Duncan died in 1862; his daughter, Mrs. Brittain, died in 1869, leaving as her only heirs at law, her mother and two nephews, John G. and Parks B. Gray, the only children of her only sister, Elizabeth Duncan, who married William Gray and died long before the death of Mrs. Brittain. It seems that when Mrs. Brittain died, her mother labored under the belief that she took the whole of this land as the heir of her daughter, and in 1873 she became unfriendly with her grandchild, Parks B. Gray, and made a will devising the whole of the land to her brother, her grandchild, John G. Gray, for life, with remáinder to his children; but it. seems John G. Gray was not pleased with such an arrangement so he deeded one-half, or a specified boundary of the land, to his brother soon after the death of their grandmother, ■and, at about the same time, sold .the remainder of the
As claimed by appellants, this writing was valid as between the parties to it and binding upon those who took by descent from them. Appellants and their ancestors, the Cains, never had any notice of this complete deed until after it was found in 1907, and only constructive notice of it, if it amounted to constructive notice as recorded in December, 1847.
The questions to be determined are: First, whether the deed as recorded in 1847, amounted to constructive notice to subsequent, innocent purchasers for value? Second, if it did not amount to such notice, should the innocent purchaser be made to suffer or should the ven-dee in the deed and her heirs sustain the loss? The present statutes with reference to the execution and recording of deeds and their effect after recorded, are in substance the same as when the deed was executed to Mrs. Brittain. Section 501 of the present statute, declares when a deed may be admitted to record, and provides that when a deed is executed in this State it may be admitted to record, first, on the acknowledgment before
“The clerk of each county court shall record all instruments of writing’ embraced in any section of this chapter, which shall be lodged for record, properly certified, or which shall be acknowledged or proved before him as required by law. He shall also record the certificates indorsed on t,he same, and shall certify the time when the instrument was lodged in his office for record. If acknowledged or proved before him, he shall also certify the time of. doing the same, and by whom proved, and that the instrument and certificates thereon have been duly recorded in his office. ’ ’
■ This section requires the clerk to record the deed and also the certificate of acknowledgment. In the case before us, the deed to Mrs. Brittain, as stated, was recorded but the certificate thereto was not. The clerk placed it upon the record in such a way as to make it appear that it was not a recordable instrument. It appears upon the record as an instrument of no greater effect than a bond for title, and, in our opinion, as recorded it did not have the effect .of constructive notice to subsequent purchasers or creditors. Having arrived at the above conclusion, the question arises as to whether the innocent purchasers or the heirs of .Mrs. Brittain should be made to suffer by reason of the clerk negligently failing to record the certificate. Section 496, Kentucky Statutes, provides:
“No deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser, for a valuable consideration, without notice thereof, or against creditors, until such deeds shall be acknowledged or proved according to law, and lodged for record.”
It will be noticed that this section does not require the deed to be actually recorded before it will operate as constructive notice to purchasers, but provides that it will so operate if it is acknowledged or proved according to law and lodged for record. Section 520 of the statutes is as follows:
“No deed shall be held to be legally lodged for record until the tax be paid thereon.”
“The law no doubt pre-supposes that the clerk will retain the possession of the deed until it is recorded, and it is indisputably a violation of his duty not to do so. For such violation of duty the clerk would be responsible for any injury which a creditor or purchaser might sustain thereby. But the law has not, on that ground,-, declared, that the deed shall be void; and we have not, as expounders of -the law, any power to do so. If indeed the proprietor of a deed of conveyance should withdraw it. from the clerk before it was recorded, for the fraudulent purpose of deceiving creditors or purchasers, it might admit of some question whether the deed would not be void as to him upon general principles.”
See also the case of Throckmorton v. Price, 28 Texas, 605. In the case of Herndon, &c. v. Ogg, 27 Ky. Law Rep., 268; 119 Ky., 814, this court,’ when it was not really necessary for a settlement of the question therein involved, said in substance, when construing section 500 and also the other sections of the statutes with reference to deeds, that it was the duty of the grantee of a deed to see that it was recorded. This was error, and that opinion is overruled to the extent that it so declares.
Appellants claim that the lower court erred in not allowing them to recover for the improvements and the
For these reasons, the judgment of the lower court is affirmed.