83 Ky. 70 | Ky. Ct. App. | 1885
DELIVEBBD THE OPINION OF THE COUBT.
May 5, 1875, appellees, B. H. and Mary B. Milliken, liusband and wife, executed a deed for a lot of land owned by ker to Harriet L. Milliken, bis mother, who, uniting with other parties, mortgaged
The main question presented on this appeal is, whether the lot can be subjected to the payment of any part of the mortgaged debt, and the determination of it depends upon whether the deed of May 5 was effectual to divest Mary B. Milliken of her title thereto.
From an authenticated copy of the record filed in this case, it appears that the deed, together with a certificate by J. Spence, at the time clerk of the-county court, showing the acknowledgment before, him by the grantors in due form of law, is now of record. But appellee, Mary B. Milliken, in her pleading states that she never acknowledged the-deed before any officer authorized by law to take-, her acknowledgment; that the contents and effect of it were never explained to her separately and apart from her husband; that she did not, before-signing, understand the purport of it; and the certificate now appearing to it on the deed-book was made by mistake on the part of the officer.
Although, in the certificate' purporting to have-, been signed by J. Spence in his official capacity, it is stated that the deed was acknowledged before-him by B. H. and Mary B. Milliken, the evidence-in this case places it beyond question that if acknowledged at all by her, it was done, not before.
■ Whether the certificate, as it now appears on record, or even a memorandum showing acknowledgment by the grantors, was ever indorsed on the-original deed does not appear, for it is not filed in. the case, nor is there any evidence on the subject.
The deed of a married woman, to be effectual, must be acknowledged before some authorized officer, and lodged for record. And when recorded, it must appear from the certificate of the clerk recorded with it that it has been acknowledged as required by law before him, or some other officer. Bnt if' tlie official signature of Spence was not, while he-was clerk, subscribed to the certificate of acknowledgment by himself or deputy, there was, when, he-went out of office, no evidence of record of such, acknowledgment; for in legal contemplation there-was no certificate, by which alone the fact can be-shown, recorded with the deed.
Is, then, the certificate, signed after he ceased to-be clerk, such as to make the deed effectual?
This inquiry is not precluded by section 17, chapter 81, General Statutes, for it applies to facts officially stated by an officer in respect of a matter about which he is required by law to make a statement in writing in the form of a certificate; and, manifestly, it was not intended by the section to*
The successor of Spence might have been authorized to record the original deed, if it had appeared 'to him from an official indorsement thereon to have been duly acknowledged and lodged for record, at '.the .same time making his certificate conform to the facts and recording it. But not even he had authority to subscribe his name officially to what purported to be a certificate of Ms predecessor, already recorded,' but not signed. Nor would he have had9 ¡authority to mgke and record his own certificate without the original deed before him.
After Spence ceased to be clerk he could not lawfully or truthfully sign his name officially to the ■certificate on the deed-book; and it being clearly ■shown by the evidence, as we think may be done, •that the certificate was not officially signed by a person authorized or required by law to do so, it ■affords no evidence of the essential fact that the •deed was acknowledged by Mary B. Milliken, and, •■consequently, her title did not pass thereby to Harriet L. Milliken, and the lot is not subject to the ■.mortgage debt.
The judgment is affirmed.
