Cox, &C., v. Gill

• Decision Date: 02 March 1886
• Citation: 83 Ky. 669
• Court: Kentucky Court of Appeals
• Parties: Cox, &c., v. Gill.

83 Ky. 669

Cox, &c., v. Gill.

Court of Appeals of Kentucky.

March 2, 1886.

APPEAL FROM BARREN CIRCUIT COURT.

T. T. REYNOLDS FOR APPELLANTS.

BOLES & DUFF FOR APPELLEE.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

Under the provisions of chapter 81, section 17, General Statutes, "no fact officially stated by an officer in respect of a matter about which he is required by law to make a statement in writing, either in the form of a certificate, return or otherwise, shall be called in question, except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer, unless in a direct proceeding against the officer or his sureties." Prior to the passage of this statute, it had been held in Ford v. Teal, 7 Bush, 156, and other cases, that it was competent to prove by parol that a deed executed by a feme covert was not read or explained to her, or that her husband was present when she acknowledged it, and in that manner avoid the deed so far as it affected the married woman.

In order to make the title to real estate the more secure the statute in question was passed, and no such testimony was admitted, unless a mistake on the part of the officer was shown or fraud on the part of those interested. Before this statute was passed or became operative, in Harpending's Ex'r v. Wiley, 14 Bush, 380, where the question involved here was directly presented, it was held that the statements made by the officer could not be contradicted by parol evidence, and when the certificate was valid it passed all the title of the parties to the real estate who executed and acknowledged the conveyance.

In this case, under the allegation of a mistake in the answer on the part of the officer, it is maintained that the certificate was erroneous in every particular, and if the defense is held good, the facility for attacking such acknowledgments is increased instead of diminished by the statute.

It is of the greatest importance to purchasers that some protection should be afforded them in the transmission of title to realty, and if the allegation of a mistake as to the county and the mode of privy examination of the feme by the clerk or his deputy is permitted, then the validity of all such conveyances will depend as much upon parol evidence as the certificate of the officer authorized by law to take the acknowledgment. The certificate, acknowledgement and the recording of the deed shows to the purchaser or the remote vendee that the title is complete, yet the parties conveying (husband and wife) will be allowed to show a mistake of law or a mistake of fact in regard to the examination of the feme, and thereby divest the purchaser who has parted with his money of all title.

It is not alleged that any fraud was practiced by the parties. The land conveyed is in Barren county. The acknowledgment of the deed is proper by both husband and wife, and before the...