136 Ky. 281 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
On September 19, 1887, there was recorded in the office of the clerk of the Perry county court a deed bearing date July 21,1887, from the appellant, Delilah Duff, and her husband, Daniel Duff, to T. P. Trigg, trustee, purporting to convey to the latter all the coal, oil, gas, and mineral products in, upon and
During the boring of the well some of the hands employed thereat boarded near appellant’s residence. On April 24, 1908, appellant instituted this action in the Perry circuit court to cancel the deed from herself and husband to Trigg and the several successive deeds whereby the title to the mineral, etc., in her land passed to appellee, upon the ground that the deed from" herself and husband to Trigg was, as to her signature and acknowledgement a forgery, in consequence of which that deed and the several successive ones, down to and including the deed to appellee, were null and void and passed no title to the minerals, etc., in, upon, and under her land. The defense interposed by appellee ’s answer was that the deed to Trigg, trustee, from appellant and her husband, was not a forgery; that appellant, by reason of certain acts set forth in the answer was estopped to deny the validity of the deed; and that, in any event, the action was barred by the statute of limitations, in that, more than five years
The record furnishes no evidence whatever of the alleged forgery of defendant’s signature to and acknowledgement of the deed, except what is contained in her deposition, in which she positively denied that she had signed or acknowledged the deed, or authorized any one to do so for her. She also stated that she could write her name, and had never made her mark to any instrument of writing, and that the mark indicating her signature to the deed to Trigg was not made or authorized by her. She further testified that she did not know of the existence of the deed or of the subsequent deeds, including appellee’s, until about a year before the institution of the action, and then learned it through her son, Joseph Duff, who made the discovery upon a visit to Hazard, the county seat of Perry county.
As Napier, the deputy clerk, before whom the deed to Trigg purports to have been acknowledged by appellant and her husband, is dead, it cannot be known what he would have said as to her denial of having-signed or acknowledged the deed; but we find that appellee introduced much evidence which strongly conduced to disprove appellant’s denial of having- signed and acknowledged the deed in question, and which tended to prove that she knew of and acquiesced in its execution. For example, although she knew of the
Besides the testimony referred to, appellee proved by Dr. M. E. Combs, an apparently reputable and disinterested witness, that he conducted a school near appellee’s residence during the boring of the well on her farm by the Hocking Valley Oil & Gas Company and was frequently at appellant’s house, as one of her children attended his school; that she then knew of the boring.of the well on her farm at which her son, Joe Duff, was employed; that, in a conversation he had with appellant on one of his visits to her house, they discussed the drilling of the well on her land and in the conversation she said that if they struck oil she and her husand had fooled away what they had by giving up their mineral rights in the land for
In view of these facts and circumstances tending to show appellant’s knowledge of and acquiescence in the deed to Trigg, trustee, and of the verity that should be accorded the deputy clerk’s certificate showing her acknowledgement of the deed, we are not prepared to say that the circuit court erred in rendering the judgment complained of. It will not do to lightly set aside the certificate of such an officer. To authorize its overthrow, the court should have before it such evidence as will leave no doubt that the officer had been guilty of fraud or mistake.
This conclusion makes it unnecessary for us to' determine whether appellee can in a case like this rely upon the statute of limitations.
Wherefore the judgment is affirmed.