Cox v. Gill

83 Ky. 669 | Ky. Ct. App. | 1886

JUDGE PRYOR

delivered the opinion of the court.

Under the provisions of chapter 81, section 17, General Statutes, “no fact officially stated by .an officer in respect of a matter about which he is required by law to make a statement in writing, either in the form of a certificate, return or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer, unless in a direct proceeding against the officer or his sureties.” Prior to the passage of this statute, it had been held in Ford v. Teal, 7 Bush, 156, and other cases, that it was competent to prove by parol that a deed executed by a feme covert was not read or explained to lier, or that her husband was present when she. acknowledged it, and in that manner avoid the deed so far as it affected the married woman.

In order to make the title to real estate the. more, secure the statute in question was' passed, and no such testimony was admitted, unless a mistake on the part of the officer was shown or fraud on the part of those interested. Before this statute was. passed or became operative, in Harpending’s Ex’r v. Wiley, 14 Bush, 380, where the question involved here was directly presented, it was held that the statements made by the officer could not be contradicted-by parol evidence, and when the certificate was valid it passed all the title of the parties to the real-estate who executed and acknowledged the conveyance.

In this case, under the allegation of a mistake in, the answer on the part of the officer, it is maintained that the certificate was erroneous in every particular, and if the defense is held good, the facility for attacking such acknowledgments is increased, instead of diminished by the statute.

It is of the greatest importance to purchasers, that some protection should be afforded them in the transmission of title to realty, and if the allegation of a- mistake as to the county and the mode of privy examination of the feme by the clerk or his deputy is permitted, then the validity of all such, conveyances will depend as much upon parol evidence as the certificate of the officer authorized by law to take the acknowledgment. The' certificate, acknowledgment, and the recording of the deed shqws to the purchaser or the remote vendee that the title is complete,, yet the parties conveying (husband and wife) will be allowed to show a mistake of law or a mistake of fact in regard to the examination of the /“eme, and thereby divest the purchaser who has parted with his money of all title.

It is not alleged that any fraud was practiced by the parties. The land conveyed is in Barren county. The acknowledgment of the deed is proper by both husband and wife, and before the clerk of Barren ■county, and this fact admitted by both the grantors. They say, however, that they were in Metcalfe county when the deed was acknowledged, and that the writing was not explained to the wife,- and she never •consented that the deed might be recorded, and, therefore, the indorsement was a mistake. We can well see how a fraud might be perpetrated by the - clerk in certifying that he took an acknowledgment, when, in fact, none was ever taken, or a mistake in ■certifying that A had signed and acknowledged the ■deed, when, in fact, it was B that signed it; but when the parties admit the execution of the deed • and the acknowledgment before the clerk of the ■county where the land lies, or before the clerk where they reside, and the clerk’s certificate is in accordance with law, they will not be permitted to show, under the allegation of a mistake, that the certificate was not in the form of or as required by law, or that the clerk was out of the county when he took the acknowledgment.

[ When the certificate is regular and proper on its face, and admitted to be signed, and the deed ■acknowledged before one authorized to take the acknowledgment, what the clerk states as to when it was acknowledged, and the manner of acknowledgment, can not be assailed on the idea that the clerk has made a mistake, and parol proof allowed "to contradict the legal effect of the certificate by showing that the clerk certifying took the acknowledgment somewhere else, or that the husband was present when the deed was acknowledged by the wife, or that the clerk failed to read and explain the contents of the deed to her. Here the parties have conveyed land in Barren county. The husband •and wife both admit the signing of the deed. They further admit the acknowledgment before the' clerk or deputy of the Barren County Court. The clerk’s ■certificate is in due form, and now it is urged that the clerk failed to do what the legal effect of his certificate imports, and, therefore, there was such a mistake as will admit parol testimony to contradict the certificate.

The mistake contemplated by the statute does not ■apply to the form or manner of acknowledgment. Was he the proper officer? Did the parties named in the deed sign it, and did they acknowledge it before the officer authorized to take the acknowledgment? Is the certificate valid on its face? If so, there is no ground for mistake.

If the door is thrown open to such assaults upon conveyances under the idea of a mistake on the part •of the clerk, then no confidence is to be placed in the verity of such records, and parol evidence will in all cases be admitted on the ground that some mistake has been committed by the clerk. It may be that the clerks of the country, in many instances,, are derelict in their duty when taking the acknowledgments of femes covert, but it is better that a remedy shall be withheld as against the purchaser-in such cases than to permit public records evidencing the transmission of title to real estate to be rendered invalid upon parol testimony.

Under the former ruling it almost universally appeared that the feme signing the deed fully intended to pass all her title, but was relieved from the effect of her acknowledgment by a mere omission of duty on the part of the clerk, and in such cases- it can work no hardship to adjudge that when the feme signed the deed and acknowledges it before the proper clerk, and his certificate is in proper form,, that no question of mistake can arise as to the manner of acknowledgment. Such, in our opinion, is a proper construction of the statute-, and to rule otherwise would be to permit the validity of the clerk’s certificate to be questioned in all cases by parol evidence on the allegation of a mistake on the part of the officer.

With this view of the case before us, neither the original answer of the appellants nor the amendments-' thereto constituted a defense .to the action, and the judgment is therefore affirmed.