157 Ky. 445 | Ky. Ct. App. | 1914
Affirming.
This appeal presents a controversy as to the ownership of a tract of land of about 40 acres lying at the head of Salt Lick of Beaver Creek, in Knott County; the appellant, J. M. Conley, claiming to be the owner of the-land by its purchase at an execution sale and a deed from the sheriff of Knott County, executed May 17, 1906; and appellee, J. C. C. Mayo, claiming to be the owner thereof, by purchase and deed from J. M. Bailey, September 2, 1905, and also by deed from Taulbee Bailey, of later date. The action was brought September 14,1911, by appellee, to enjoin appellant from trespassing upon the land, to cancel the deed made him by the sheriff, and to quiet his (appellee’s) title to the land. Taulbee Bailey was joined with the appellant, Conley, as a defendant to the action, but he by answer disclaimed any ownership of the land, and, to make the disclaimer more effective, executed to appellee a quit-claim deed conveying whatever interest he was supposed to have in the land; and upon the execution of this deed the action was abated as to him.
It was averred in the petition that appellee was a purchaser of the land for value without notice of the alleged judgment, the execution issued thereon, its levy or the sale of the land thereunder at which appellant purchased it; that there was no lis pendens notice of any of the alleged execution proceedings filed in the county clerk’s office as required by law, which could have given appellee information of the levy upon or sale of the land, at the time of his purchase thereof from J. M. Bailey and his acceptance of the deed made him by the latter.
The appellant’s answer specifically denied the averments of the petition and alleged his title to the land by virtue of his purchase thereof at the execution sale and deed from the sheriff of Knott County, and also under an alleged deed from David Conley. By the judgment rendered the circuit court declared appellee the owner of the land, quieted his title thereto and enjoined appellant from further trespassing thereon. From that judgment the latter has appealed.
Appellant and appellee, in reality, claim title from a) common source, that is, from J. M. Bailey. The land was levied upon as the property of J. M. Bailey; the execution having issued on a judgment against him in favor of one John Bradley. The sale under the execution, at
It is, therefore, manifest from the evidence, that at the time of. appellee’s purchase of the land in controversy and its conveyance to him, he did not have notice of its having previously been levied on .or sold under the execution against J. M. Bailey in favor of John Bradley, or of appellant’s purchase thereof at that sale; and this fact, together with the equally well established further fact, that he was a purchaser for value, makes his title acquired by virtue of the deed from J. M. Bailey and wife to him superior to any right that appellant acquired to the land by virtue of the execution sale or under the deed thereafter made him by the sheriff. Section 2358a, subsection 2, Ky. Statutes, provides:
“No attachment or execution hereafter issued, nor any levy or sale under either, shall in .any manner affect the right, title to, or interest of a subsequent purchaser, lessee or incumbrancer without notice thereof of any real estate or any interest therein upon which such attachment or execution may be or may have been levied, except • from the time there shall be filed in the office aforesaid (County Clerk’s office) a memorandum, showing the number and style of the action in which said attachment or execution issued, the court from which it issued, the number, if any, of such attachment or execution, the date thereof, and the name of the persons in whose favor and against whom respectively it issued. Such notice may be filed by any party in interest.”
If the plaintiff in the execution, or appellant as the: purchaser- of the land thereunder, had complied with the provisions of the statute supra, the latter would, by virtue thereof have acquired under the deed from the sheriff, though it was made after appellee’s purchase of the land and its conveyance to him by Bailey and wife, a title
Little importance can be given the quit-claim deed from Taulbee Bailey to appellee. The only claim Taulbee Bailey had to the land in controversy was by virtue of an unrecorded deed he received from his father, J. M. Bailey before the sale of the land under the execution; and as neither appellant nor .appellee had notice of its existence when they became purchasers of the land, the former at its sale under the Bradley execution, and the latter under the deed from J. M. Bailey and wife, the title of either must have prevailed over any right of Taulbee Bailey. But while appellee’s title to the land is in no way strengthened by the deed made him by Taulbee Bailey, its execution- by the latter will estop him from setting up any future claim to the land.
We. are further of opinion that appellant failed to establish title to the land in controversy by virtue of a deed from David Conley. Such a deed, if made, was never put to record nor was the deed or a copy thereof exhibited in the case or any proof introduced of its execution or existence. Appellant claimed that the deed had been left in the possession of one Fred Atkinson, but he did not introduce Atkinson as a witness, although, according to the evidence, Atkinson was within easy reach. There was no attempt made to show the loss of the deed nor did any witness save appellant testify that he had ever seen it. But had David Conley executed such a deed, it would have invested appellant with no title, because it is apparent from the record that he had no title to convey. It is true that David Conley and his brother, George Conley, at one time owned a considerable tract of land of which the parcel in controversy was apart, having purchased the whole from the heirs of Sampson Conley, but it is apparent from the evidence that after their purchase of the land it was, under a parol agreement between them, partitioned more than 25 years ago, George taking in the division the portion embracing this tract and David the remainder. It is further apparent from the evidence that each went upon his part of the land re
So, it is manifest from the foregoing uncontradicted facts appearing in the record, that appellant’s alleged claim of title to the land under a deed from David Conley is wholly without merit. The rights of the parties having properly been determined by the circuit court, the judgment is affirmed.