Atkins' Guardian v. McCoy

• Decision Date: 25 October 1938
• Citation: 275 Ky. 117
• Parties: Atkins' Guardian v. McCoy.
• Court: Supreme Court of Kentucky

Page 117

275 Ky. 117

Atkins' Guardian v. McCoy.

Court of Appeals of Kentucky.

Decided October 25, 1938.

1. Pleading. — A judgment on demurrer to a pleading is a judicial determination of the legal sufficiency of the facts pleaded.

2. Judgment. — A final judgment on demurrer to a petition, which goes to the merits, renders the whole matter res judicata so far as the facts alleged are concerned, but is not a bar to another action, where the facts are different and different questions of law are presented.

3. Judgment. — A judgment of the Court of Appeals affirming a judgment dismissing plaintiff's petition in an action to have an allegedly forged deed declared void, because plaintiff had failed to call in question the signature or certificate of acknowledgment of the deputy county court clerk, was not a decision on the merits which would require dismissal of a subsequent petition attacking both the deed and the certificate of acknowledgment as forgeries.

4. Acknowledgment. — The statute providing that, unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in form of a certificate, return or otherwise, shall be called in question, except on allegation of fraud of party benefited thereby, or mistake on part of officer, applies only to a certificate of acknowledgment actually signed by the officer, and not to a forged paper which is no certificate (Ky. Stats., sec. 3760).

5. Acknowledgment. — Except in an action against the officer or his surety, the certificate of an officer authorized to take acknowledgments imports absolute verity, and the effect of the certificate must be destroyed before a plea of non est factum is available (Ky. Stats., sec. 3760).

6. Acknowledgment. — The purported signature of the maker of an instrument cannot be shown to be a forgery until the certificate of acknowledgment is attacked (Ky. Stats., sec. 3760).

7. Acknowledgment. — If it is alleged and proved that a certificate of acknowledgment is a forgery, the way is open to attack an instrument under a plea of non est factum (Ky. Stats., sec. 3760).

8. Life Estates. — A life tenant, and not the remainderman, has duty to pay taxes.

9. Taxation. — One who paid taxes under belief that she was the owner of the property was not entitled to a judgment for the taxes in event that she was adjudged not to be the owner, since she was a "volunteer."

Appeal from Pike Circuit Court.

H.H. RAMEY for appellant.

WILLIS STATON for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming in part and reversing in part.

Mary Kathleen Atkins, an infant, brought an action by her guardian against Ethel Atkins McCoy to have declared void as a forgery a deed produced for record October 9, 1931, which purported to have been executed September 28, 1917, by G.J. Atkins, plaintiff's father, to his sister, the defendant. G.J. Atkins died intestate August 26, 1925, leaving the plaintiff surviving him as his sole heir at law. No attack was made in the petition on the officer's certificate of acknowledgment, which purported to be signed by J.B. Atkins, deputy county court clerk and brother of G.J. Atkins, but the evidence of forgery related exclusively to his signature. Upon submission in the circuit court, a judgment was entered dismissing the petition, and the judgment was affirmed on appeal to this court on the ground that the petition was fatally defective in that it failed to call in question the certificate of acknowledgment. Atkins' Guardian v. McCoy, 263 Ky. 846, 93 S.W. (2d) 839. In the course of the opinion it was said [page 840]:

"It is to be noted that the plaintiff nowhere undertook to call in question the signature or certificate of acknowledgment of the deputy county court clerk. Section 3760, Kentucky Statutes, provides that unless it be in a direct proceeding against an officer or his surety, no fact officially stated by such an officer in respect of a matter about which he is by law required to make a statement in writing, as in the form of a certificate, shall be called in question except upon the allegation of fraud in the party benefited thereby, or mistake on the part of the officer. The interpretation of this statute has been that the certificate imports absolute verity unless attacked in the manner outlined. This construction has been uniformly followed not only in cases involving the fact of acknowledgment, but as well the fact of execution of the instrument itself. In the absence of an attack on the officer's certificate as required by the statute, the plea of non est factum made by plaintiff was not good, and her attack on the deed must necessarily have failed. [Citations] The petition being fatally defective, it is not necessary to regard the evidence. It may be said there was no pleading to support the evidence, and no evidence to support the pleading."

Mary Kathleen Atkins, by her guardian, then brought this action, and, in her petition, attacked both the deed and the certificate of acknowledgment as forgeries, and alleged that the deed was not signed or delivered by G.J. Atkins, and was not his act or deed; that it was not acknowledged before J.B. Atkins as deputy clerk; and that the signature on the certificate of acknowledgment, which purported to be the signature of ...