81 Ky. 452 | Ky. Ct. App. | 1883
delivered the opinion ot the court.
This was an action in equity, after a return of “no property,” brought by appellee July 13th, 1882, against Michael C. Ward and wife to set aside a voluntary conveyance of two tracts of land which he caused to be made to her on 25th May, 1874. The conveyance was recorded January 7th, 1875.
The debt of appellee was due his assignor before the conveyance was made, and the evidence thereof renewed afterwards.
It appears that the conveyance had no other consideration to support it than that of love and affection.
Seven years, six months and six days had expired from the recording of the deed to the institution of this suit to vacate it, and the appellants pleaded the statute of limitations in bar of the action. Judgment having been rendered against them on that plea, they have appealed, asking a reversal on the ground that the lapse of five years from the
In the present case, however, the appellants having pleaded limitation, the appellee replied that he first discovered the fraud within five years next before he commenced suit, and issue being joined on the time of discovery, the burden was upon appellee to establish its date. He introduced evidence which established the fact that actual notice of the conveyance came to him only a few months prior to the institution of this suit.
The appellants rely upon constructive notice, proceeding from the registration of the deed, as fixing the time of discovery upon the part of appellee. The question, therefore, is, shall constructive notice apply to' antecedent creditors and prevail over actual notice in prescribing the period at which limitation begins, in favor of voluntary conveyances?
Presumptive notice of the contents of a record is based upon the peculiar policy of the law with reference to such notice which exists in certain but not in all cases. The recording of conveyances made in good faith and for a valuable consideration within the time prescribed by the registry laws, is notice to the world of their existence and recordable contents; but where the conveyance is voluntary, its registration is not constructive notice of its existence or contents to a subsequent purchaser for a valuable
The recording of such conveyances is important in establishing the time of the perpetration of the fraud, .but it throws but little light of itself upon the question of discovery. It is admissible evidence on that question; and when the manner of its execution and registration and other facts and circumstances in the case would be sufficient to put a person of prudent mind upon inquiry, the law declares this
The doctrine above maintained is supported by authority and the reasonable construction of the statute, and we think it is both sound in principle and practicable in operation. (See Howard v. Todd, 1 Mar.; Willis v. Valette, 4 Met.; Mueller v. Englen, 12 Bush.) The application of the rule of constructive notice to the classes of cases named, illustrates the force of the rule denying its enforcement against antecedent creditors and bona fide purchasers.
Section 6 of article 3, chapter 71, General Statutes, provides that "in actions for relief for fraud or mistake, or damages for either, the cause of action shall not be deemed to have accrued until the discovery of the fraud or mistake.”
As the mere fact of recording a voluntary conveyance is not notice of its existence to an antecedent creditor, it must follow that that fact is not evidence sufficient to prove the time of discovery or do more than to prove the perpetration of the fraud which, as matter of law, is the time the statute begins to run in the absence of allegation and proof, by the party attacking the conveyance, that discovery was made within five years next before suit. The remaining point then is, was the evidence sufficient to fix the discovery more than five years prior to the suit? It fails to show
There is no evidence that the appellee or his assignor had any notice that title to the land conveyed was charged, encumbered, or affected in any way by the claims of Mrs. Ward, or that they or either of them had designedly abstained from inquiry for the purpose of avoiding notice. (Jones v. Smith, 1 Hare, 43; Kent’s Com., 4th vol., 171.)
They could have had no motive to avoid notice, for it was to their interest to learn of the fraudulent conveyance as soon as possible, as a failure to discover the fraud for ten years would bar their remedy. None of the facts, therefore, which are usually sufficient to put a party upon inquiry in a legal sense, are shown by this record, and we must conclude that the discovery did take place within five years next before the institution of the suit.
The judgment is therefore affirmed.