73 Ky. 331 | Ky. Ct. App. | 1874
delivered the opinion of the court.
Low & Whitney and other judgment creditors of J. A. Blinco sued out their executions in March, 1859, and in April thereafter caused them to be levied on a tract of seventy-six acres of land, as the property of their debtor. Prior to all this, on the 30th of June, 1858, the said debtor had sold and
Section 9, chapter 24, of the Eevised Statutes, provides that “no deed conveying any title to or interest in land for a longer time than five years, nor any agreement in consideration of marriage, shall be good against a purchaser for a valuable consideration, not having had notice thereof, or any creditor, unless the same be acknowledged by the party who shall execute the same, or be proved and lodged for record in the proper office, as prescribed by law.”
Section 15 of the same chapter provides that deeds made by residents of this state, to be good against a purchaser for a valuable consideration without notice, or any creditor, “except from the time the same shall be legally acknowledged or proved and lodged for record,” must be so lodged within eight months after the date thereof. Appellee failed to lodge his deed for record within eight months, and appellants insist that the acknowledgment and the lodging of the same after the execution liens had been perfected by the levies in no wise affect their title. The question thus raised has frequently been before this court for consideration, and the decisions
In Morton v. Robards (4 Dana, 258) this construction of the statute was repudiated, the court holding that the legislature intended only to regulate legal conveyances, and to leave untouched the equities of the parties, and that while the legal title of a party not lodging his deed for record within eight months from its date was not good, yet his equity was unimpeachable, and that a title acquired under an execution sale with notice of such equity would be made to yield to it in a court of chancery.
In Halley v. Oldham (5 B. Mon. 233) the correctness of the doctrine of Morton v. Robards was doubted. 'It was, however, conceded that if the execution creditor was himself the purchaser, then notice to him before his purchase of the existence of the unrecorded deed would deprive him of its fruits, and that a court of equity might compel him to relinquish any-legal advantage he might have acquired under it.
Beconciling as far as practicable the various reported eases, we deduce from them the following views:
In this case it appears that the deed to appellee, was re-acknowledged and actually put to record in the proper office more than a month before appellants, who were the execution creditors, purchased at the sheriff’s sale. Besides, it is averred in the answer and petition of appellee, to which the record shows that appellants entered their appearance, that appellee gave to them actual notice of his deed and of its contents on the day of the sheriff’s sale, and before their purchase. This averment is not denied; and as appellants chose to go to trial without answering the petition of interpleader, it must for the purposes of this litigation be taken as true.
The petition of appellee is not in the nature of a petition by the claimant of attached property to be made a party defendant and allowed to assert his claim, as was the petition in the case of Graves, &c. v. Ward, &c. (2 Duvall, 301, 302), nor in the nature of an application by the claimant of real property to be allowed to appear and defend for his tenant.
The judgment of the court dismissing appellants’ petition does not give to appellee all the relief to which he was entitled, but certainly appellants have no ground for complaint. Said judgment is therefore affirmed.