205 Ky. 570 | Ky. Ct. App. | 1924
Opinion of the Court by
Affirming.
By this .action the Commonwealth seeks to dispossess defendants of two adjacent strips of land, the title to which of certain railroad companies had been es-cheated to it for nonnser. Upon a former appeal the an
The first insistence is, that there was no competent evidence of fraud.
In support of their claim defendants proved that the deputy clerk, who took the grantors’ acknowledgments and procured the execution of the deeds in question, misread the contents of the deeds and falsely represented that instead of conveying the fee they conveyed only a right for five years to construct a railroad on the land. It is insisted first that this evidence was incompetent because in violation of section 3760 of the statutes, and second because there is no proof that the clerk was acting for the grantees.
The statute referred to prohibits attacks upon the verity of an officer’s proper certificate in other than a direct proceeding against him or his sureties, “except upon the allegation .of fraud in the party benefited thereby, or mistake on the part of the officer. ’ ’ As there was such an allegation of fraud here, it is obvious the statute does not apply. • Besides, the attack is not upon the verity of the certificate of acknowledgment, but upon the fraudulent act of the clerk in obtaining such acknowledgment, admittedly made in due form of law as certified.
The only pertinent objection, therefore, is that the clerk was not shown to be acting for-the grantee, and that as a consequence any misrepresentations made by Mm to induce the grantors to execute the deeds are not chargeable to the grantees or their successors in title.
The clerk and the grantors, except Mrs. Middleton, are dead, and her offered evidence on the subject was properly excluded whenever objected to. But it is shown by Lloyd Ooldiron, a competent witness, that the clerk brought the prepared deeds to the home of the grantors and procured them to execute same by falsely representing the deeds to convey only a limited right of way over the lands, and fraudulently pretending to read same- to the grantors in accordance with such representations.
Mrs. Coldiron testified, without objection, that the clerk negotiated the trade for the land, and E. M. Howard and T. II. Howard that he, at about the same time,
The next insistence is that since the deeds were executed in 1903, and the attack upon them for fraud was not made until 1921, it was barred by the statute of limitations pleaded.
The statutes of limitations, however, apply only to “actions” and not to defenses, as this court has held in conformity with case and textbook authority generally. Louisville Banking Co. v. Buchanan, 117 Ky. 975, 80 S. W. 193, 4 Ann. Cas. 929, and note; Aultman & Co. v. Meade, 121 Ky. 241, 89 S. W. 137; Wilhite v. Hamrick, 92 Ind. 594; Morrow v. Hanson, 9 Ga. 398; Rodman v. Hampton, 26 Mo. App. 504; Evans v. Yongue, 8 Rich (S. C.) 113; Buty v. Goldfinch, 74 Wash. 532; 1915A Ann. Cas. 604, and note; 25 Cyc. 1063, 17 R. C. L. 745.
Defendants have remained in peaceable possession of the land ever since the deeds were executed; they are not seeking cancellation, reformation, or affirmative relief of any kind, but are simply defending against the effort now made for the first time to oust them of possession. The right so to do, not being within either the terms or the contemplation of the statutes of limitations, is not barred thereby, as the above authorities clearly show.
Appellants also complain of the court’s refusal to transfer to equity, but this motion was not made until all the testimony had been introduced and the motion for a directed verdict had been overruled, and was too late. Hence, whatever its merits if timely made, the court certainly did not err in overruling it at practically the completion of the trial before a jury.
As the plaintiff did not introduce any evidence upon the question of fraud, having been content to introduce only the deeds admittedly regular in form, it is clear the verdict was not flagrantly against the evidence.
Not only so, but as there was no contradiction of defendant’s evidence of- fraud, and the same fraudulent acts were proven alike in the procurement and execution of the deeds by all of the grantors, it is clear that plaintiff was not prejudiced in the least by the fact the in
It is insisted, however, that fraud was not properly pleaded except as to the single defendant referred to in the instructions. The basis of this contention is the fact that in the answer held good upon the former appeal, fraud was alleged only in the procurement and execution of the deeds by this defendant, Mrs. Middleton. But the whole title was conveyed to her by the other grantors after their execution of the deeds to the railroad company, and the fact she did not own the land when those deeds were executed first appears in the reply, and in the rejoinder defendants alleged that the deeds were fraudulent alike as to all of the grantors.
While ordinarily this should have been by amendment of the answer, the answer has been held sufficient by this court, and it certainly was not prejudicial error to permit defendant to respond in her rejoinder to allegations in the reply that should have been contained in the petition and which, if appearing there, would have rendered the answer insufficient.
As plaintiff was not a purchaser for value but took only such title and rights' as the grantees actually had when their title was escheated, it occupied no better position than they would had they undertaken to oust defendants.
Perceiving no error upon the trial or in the record prejudicial to appellant’s substantial rights, the judgment is affirmed.