City Bank & Trust Co. of Hopkinsville v. Planters' Bank & Trust Co. of Hopkinsville
| Decision Date | 22 June 1917 |
| Citation | 195 S.W. 1124,176 Ky. 500 |
| Parties | CITY BANK & TRUST CO. OF HOPKINSVILLE v. PLANTERS' BANK & TRUST CO. OF HOPKINSVILLE. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Christian County.
Suit by the Planters' Bank & Trust Company of Hopkinsville, Ky against F. W. Dabney, in which the City Bank & Trust Company and S. Y. Trimble became parties. From a judgment the City Bank & Trust Company and S. Y. Trimble, each appeal. Affirmed on both appeals.
J. W Downer, of Hopkinsville, for appellants.
Selden Y. Trimble and Trimble & Bell, all of Hopkinsville, for appellee.
Planters' Bank & Trust Company brought this suit against F. W. Dabney to enforce a mortgage lien on certain real estate situated in the city of Hopkinsville. The City Bank & Trust Company became a party and asserted a prior mortgage lien on the same property. The chancellor held that the lien of the City Bank & Trust Company was inferior to that of the Planters' Bank & Trust Company, and the City Bank & Trust Company appeals.
The mortgage to the City Bank was given to secure an indebtedness of $27,000 and was executed and acknowledged on February 8 1911. It was not lodged for record, however, until September 19, 1914. The mortgage to the Planters' Bank is dated May 14, 1914, and attested by two witnesses. It was lodged for record in the office of the clerk of the Christian county court on September 16, 1914, and the tax and recording fee paid thereon. The clerk's certificates show that the execution of the mortgage was proved by the subscribing witnesses.
Under our statutes and decisions, all bona fide deeds of trust or mortgage shall take effect in the order that they are legally acknowledged or proved and lodged for record; and an unrecorded mortgage is invalid as to purchasers for a valuable consideration and creditors whose debts were created subsequently to the mortgage. Kentucky Statutes §§ 496 and 497; Wicks v. McConnell, 102 Ky. 434, 43 S.W. 205, 20 Ky. Law Rep. 84; Clift v. Williams, 105 Ky. 559, 49 S.W. 328, 51 S.W. 821, 20 Ky. Law Rep. 1261, 21 Ky. Law Rep. 551; Rankin v. Macfarlane, 75 S.W. 221, 25 Ky. Law Rep. 258. Here the entire debt of the Planters' Bank was incurred after the execution of the mortgage to the City Bank, and its mortgage was recorded before the mortgage to the City Bank was recorded. There can be no question, therefore, of the superiority of the mortgage to the Planters' Bank, provided it was a recordable instrument and the debt was created and the mortgage accepted without notice of the mortgage to the City Bank.
For the purpose of showing that the Planters' Bank's mortgage was not a recordable instrument, it was attempted, under an allegation of mistake on the part of the clerk, to show that the mortgage was not executed by Dabney in the presence of the attesting witnesses. Our statute provides 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 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." Section 3760 of the Kentucky Statutes.
In construing this statute, we have held in a long line of decisions that when the certificate is regular and proper on its face, and admitted to be signed, and the deed acknowledged before one authorized to take the acknowledgment, what the clerk states as to when it was acknowledged and the manner of acknowledgment cannot be assailed on the idea that the clerk has made a mistake; and parol proof will not be allowed to contradict the legal effect of the certificate by showing that the clerk took the acknowledgment somewhere else, or that the husband was present when the deed was acknowledged by the wife, or that the clerk failed to read and explain the contents of the deed to her. Pribble v. Hall, 13 Bush, 61; Cox v Gill, 83 Ky. 669; Tichenor v. Yankey, 89 Ky. 508, 12 S.W. 947, 11 Ky. Law Rep. 712; Keith v. Feder, 29 S.W. 316, 16 Ky. Law Rep. 588; Davis v. Jenkins, 93 Ky. 353, 20 S.W. 283, 14 Ky. Law Rep. 342, 40 Am. St. Rep. 197; Hall v. Hall, 118 Ky. 656, 82 S.W. 269, 26 Ky. Law Rep. 553; Long v. Branham, 99 S.W. 271, 30 Ky. Law Rep. 552; Dukes v. Davis, 125 Ky. 313, 101 S.W. 390, 30 Ky. Law Rep. 1348; Tackitt v. Tackitt's Adm'r, 127 S.W. 987; Bebout v. Old Kentucky Mfg. Co., 145 Ky. 756, 141 S.W. 406. The only case in which the certificate of the officer was ever permitted to be impeached is that of Aultman-Taylor Co. v. Frasure, 95 Ky. 429, 26 S.W. 5, 16 Ky. Law Rep. 6. There the wife of the mortgagor was permitted to show that the acknowledgment was taken in the presence of her husband and by his coercion; but, as has since been pointed out in a number of cases, this evidence was admitted because the mortgagee's agent was present and participating in the fraudulent efforts to overcome the reluctant...
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