Burton-Whayne Co. v. Farmers & Drovers Bank

Opinion of the Court by Wm. Rogers Clay, Commissioner — Reversing. This action involves the invalidity of the title to a piece of property, sold under an attachment secured by the appellee against the Columbia Finance & Trust-Company, administrator of the estate of S. S. M'eddis, deceased, Victor N. Meddis and George S. Meddis, Jr. Appellant, Burton-Whayne Company, bought the property in question at the commissioner’s sale, and filed certain exceptions thereto. These exceptions were overruled, and its appeals. It appears from the record that about the year 1856 Fostef Ray and Francis S. Ray owned an undivided one-fonrth interest in a lot containing some 60 acres, at the northeast corner of Fifteenth or Cherry street and Magnolia avenue. Francis S. Ray died intestate, leaving no children. His only heirs were his brothers and sisters- and the children of his deceased brothers [392] and sisters. After Francis S.-Ray’s death. Foster Ray, who owned one-half of an undivided one-fourth of the 60-acre tract, and inherited from his brother Francis S. Ray one-eighth of the latter’s one-half of an undivided one-fourth, purchased the interest- of Robert C. Ray and wife, Nancy I. Ray, in the 60-acre tract of land, by deed dated February 2, 1856, and recorded in the Jefferson county clerk’s office January 9, 1857, in Deed book 97, page 147. He also purchased the interest of Sarah Heiser and her husband, Thomas Heiser by deed dated March 15, 1856, and recorded in the Jefferson county clerk’s office January 9, 1856, in Deed book 97, at page 147. He als^ purchased the interest of Amanda Ray and her husband, Asher B. Ray, by deed dated April 30, 1856, and recorded January 9, 1856, in the Jefferson county clerk’s office, in Deed book 97, at page 148. In addition to the above interests in the 60-acre tract of land Foster Ray bought the interests of all the other heirs, except the interest of B.F.Ray,Sarah Batsel,Amanda Batsel, Spencer, Sally C. Curd, and Ann Eliza Curd. He thereupon filed against thése parties, who had not sold their interest, an action to have the 60 acres of land partitioned among the owners thereof according to their respective interests. The persons who conveyed to Foster Ray were not made parties to this action, All the others interested in the property were made parties. Robert O. Ray owned 3-192 of the whole tract, Sarah Pleiser 3-192, and Amanda Ray 1-192 of the whole tract. In the partition proceedngs Foster Ray was awarded 12.92 acres, and the property involved in this action is a portion of said tract of 12.92 acres. It is first insisted by counsel for appellant that the title to the property purchased by it is defective be393 cause Robert O. Ray’s deed to Foster Ray was acknowledged by him before a notary public. While this deed was not acknowledged in proper form, we think it was good between the parties. It at least had the effect oí an unacknowledged deed, and, connected with Foster Ray’s possession after the division, was notice to the world of his ownership. Simpson’s Extx. v. Loving, Jackson, etc., 3 Bush 458, 96 Am. Dec. 252. It is next insisted that the deeds from Asher B. Ray and Amanda Ray and Thomas and Sarah Reiser are not valid because they were not filed for record within eight months, as required by Revised Statutes (Stanton’s), volume 1, c. 24, sections 15, 23. This precise-question was before this court in several instances, and it has been held that such deeds are void as to married women. The effect of this interpretation of the statutes in question was to cause their subsequent repeal by the Legislature. McGuire v. Bowman, etc., 6 Bush 550; Butler v. Wheeler, etc., 82 Ky. 475; Dugan v. Corn, Id. 206. There was filed with the record in this ease the record of an action brought by Lizzie Adams In the Jefferson circuit court' against Sarah C. Dycus, J. V. Dycus, and Anne E. Fulcher to quiet her title. Sarah C. Dycus is the same party as' Sally C. Curd, given, in the list of heirs of Francis S. Ray. In their answer to Lizzie Adams’ petition Sarah O. Dycus and others claimed that they had never conveyed their interest in the property in question to the devisees of Foster Ray, but that they still held the interest in said property which they had inherited from Francis S. Ray. Issue was joined on this point, and Lizzie Adams filed a reply, pleading both the 15 and 30-year statutes of limitation. Two witnesses gave their depositions in that da§e, and the ooui’t held that Lizzie Adams had [394] had adverse possession of the property in question for a period of more than 30 years. "We are asked to consider here the record of that case. It does not appear, however, that the same lot of ground is involved, and we can not, therefore, consider such evidence. Appellant’s next exception to the report of sale is based upon the fact that the date of the attachment, as required by subdivision 2, section 2358a, Ky. Stats., 1903, is not contained in the body of the lis pendens notice. It appears, however, that in every other respect the notice filed in the county clerk’s office was correct. It is also admitted that the date said notice was filed is certified to by the county clerk in connection with his record of said notice. Above the signature of the clerk is the following: “Piled March 15, 1907, at 9:40 a. m. By C. H. Shield.” The attachment was levied March 13, 1907. After the attachment was secured in this action, it appears that Oscar Stutz and others levied on the property in question on March 28, 1907, 13 days after notice of this action had been filed in the county clerk’s office. It is therefore contended that, as the lis pendens notice did not give the date of the attachment, Stutz’s attachment took precedence. We can not agree with counsel in this contention. The primary purpose of the notice required by; section 2358 is to put subsequent purchasers, lessees, and incumbrancers on notice. The question is: Did Oscar Stutz and others file their attachment with notice of the prior attachment! Of this there can be no question. The prior lis pendens notice was not only on record, but the date of filing thereof was attached by the county clerk. Under these circumstances, therefore, w¿ do not think the attachment filed by Oscar Stutz and others took precedence of the attachment sustained in this action. [395] For the reason that the deeds from Sarah Heiser and her husband, Thomas Heiser, and from Amanda Ray and Asher B. Ray are void, as to the married women, we are of opinion, that the chancellor erred in overruling appellant’s exceptions to the commissioner’s report of sale. Inasmuch, however, as the deeds were executed more than 50 years ago, and, as the statute of limitations would now bar a recovery by the vendors if, as a matter of fact, the appellees Meddis and those through whom they claim have been in the adverse possession of the property for a period of 30 years (L. & N. R. R. Co. v. Thompson, 105 Ky. 190, 25 Ky. Law Rep. 1110, 48 S. W. 990; Rose v. Ware, 115 Ky. 420, 74 S. W. 188, 24 Ky. Law Rep. 2321; Watkins v. Pfeiffer, 92 S. W. 562, 29 Ky. Law Rep. 97), the presumption is that the title to the property is good by limitation. In .view of this fact we have concluded to remand the case, with directions to the chancellor to hear proof upon the question of adverse possession. If such adverse possession is shown, the chancellor will overrule appellant’s exceptions to the report of sale. Judgment reversed for proceedings consistent with this opinion. December 3, 1908. — Opinion modified by Commissioner Clay. In our former opinion reversing this case the property in question was incorrectly described as a portion of the tract of 12.92 acres allotted to Foster Ray. As a matter of fact the record shows that the property in question is a portion of the S. E. % which was allotted to B. F. Ray, Sarah Batsell, Amanda Batsell, and Spencer, Sallie C., and Ann Eliza Curd, heirs of [396] F. S. Ray, deceased, and thereafter conveyed by them to Poster Ray, to whom the remainder of said S. E. % had been allotted in the partition proceedings. It further appears that the property involved in action No. 29,014, Jefferson circuit court, of Lizzie Adams v. Sarah Dycus et ah, is the identical property involved in this action. It further appears that action No. 29,-014 was brought to quiet the title of plaintiff in that action, and that plaintiff in that action claimed through J. L. Deppen and Julius Winter, and a party through whom George S. Meddis, Jr., defendant in this action below, claimed title. It was agreed that the deposition of J. L. Deppen, given in action No. 29,014, should he considered on this appeal. As that deposition and the record in ease No. 29,014 established conclusively the adverse possession by those through whom George S. Meddis, Jr., claims, of the identical property in question for a period of more than 30 years, it necessarily follows that Asher B. Ray and Amanda Ray and Thomas and Sarah Heiser, and their heirs, have no claim to the property in question that is not barred by the statute of limitations. Under this view of the case, it is unnecessary to reverse and remand this case for further proof on the question of adverse possession. For the reasons given, the former opinion is modified as above indicated, the order reversing is set aside, and the judgment of the trial court overruling appellant’s exceptions is affirmed.