Netherland v. Calvin , 10 Ky. Op. 777 ( 1880 )

Opinion by

Judge Pryor ;

The testimony in this case leaves but little room to question the transactions between the father and son resulting in the execution of the conveyance under which the appellee claims. The lapse .of time intervening between the date of the conveyance and the institution of the present action to set it aside conduces strongly to show that the creditors of the son regarded the conveyance as made in good faith and with no intention to defraud. The appellants were living where every opportunity was afforded them to investigate the questions now raised; and with notice that the title had passed to the father from the son, they have been a long time asserting their rights as creditors on account of the alleged fraudulent transaction.- Nearly nine years have elapsed since the deed was made, and the reason assigned by the appellant or some member of the firm for not making the judgment was that a conveyance had been made to the appellee ; and when the latter in a deposition, stamped with an honesty of purpose in the detail of the business relations between his son and himself, leaves us no room to doubt the fairness of the transaction, the chancellor acted properly in declining to disturb the deed upon the ground of fraud or want of consideration.

That the deed was acknowledged by the husband and wife is not controverted, or if so, the proof is entirely satisfactory on that point. It is maintained, however, that the deed was never recorded nor lodged for record, and upon this ground, as to creditors, it is claimed, should be disregarded. The deed was recorded on the 14th of March, 1878, and the tax paid about that time, and executed nearly ten years prior to the date of its record. It is shown, however, by the appellees, that at the date of the deed and at the time it was acknowledged he gave the deputy clerk taking the acknowledgment the money for tax and cost of recording it, and'the deed, when found, was in the county clerk’s office. While the statute provides that a deed shall not be regarded as lodged for record until the tax is paid, it does not provide the manner in which proof may be made, when the payment of the tax is placed in issue. The usual mode of evidencing its payment is by an indorsement on the deed, but the absence of this endorsement will not preclude the grantee from showing, by the clerk or others, the payment of the tax. The neglect of the clerk to make such endorsement when the tax has been actually paid should not be permitted to destroy the legal effect of the conveyance.

The payment of the tax the second time by Wood was unknown to appellee, and was paid under the impression or with a knowledge of the fact that the then clerk would not record the deed without the tax. We think it is shown that the conveyance was properly lodged for record, and in addition that the appellant knew of the conveyance. Slight proof connected with the lapse of time and their facilities for ascertaining the business transactions of the parties would authorize the conclusion as to knowledge on their part, and the execution of the conveyance, the validity of which is for the first time asserted by them in this action, a period of nearly nine years from its execution.

The claim of the son’s wife to dower presents a question of more difficulty. She acknowledged it befo’re the deputy clerk, who made a memorandum of that fact in September, 1869. This certificate or memorandum has never been recorded or made part of the certificate by the clerk of the court evidencing the acknowledgment by the parties. In order to pass the title of the feme, or to make the conveyance evidence against her, it was required by the Act of March 9, 1854, that the clerk shall write out and sign the certificate, setting forth in such certificate the facts, including the endorsement, and thereupon the deed shall be as good and effectual as if, etc. This has not been done in the present case, although if properly certified and lodged for record within the proper time it would pass the title of the feme. In this case no certificate has been made, as appears on the face of the paper, that would make the conveyance operate to divest her of title. The original conveyance, having been offered in evidence, cannot affect her rights, when at the same time it appears that she was a feme covert when the paper was executed and delivered.

It is urged, however, that, the wife becoming discovert after the execution and delivery of the deed,'this removes all obstacles in the way of the title. This position, we think, is not tenable. It is the status of the party at the time the conveyance was made that must determine the rights of the parties, unless when the disability has been removed the feme has in some way cured the defects in the title.

Nor can the certificate be amended on the return of the cause, as the deed, with a proper certificate upon it, must have been recorded or lodged for record within the proper time so as to affect the rights of the married woman. Mrs. Drabbell is therefore entitled to dower.

The conveyance is of all the right, title and interest in and to the real estate of every kind which Harkness owned at the time of his death. It was not what Calvin inherited, but all that he owned at the time of the conveyance.

J. R. Robinson, R. S. Montague, for appellants. William Lindsay, James M. Wood, for appellees.

The judgment below is affirmed as to Netherland, and the appellee may have his execution for costs against him, and is reversed as to Drabbell and wife, and they have their costs against appellee, and cause remanded for further proper proceedings.