Hunt v. Nance

• Decision Date: 08 March 1906
• Parties: HUNT v. NANCE et al.
• Court: Kentucky Court of Appeals

92 S.W. 6

122 Ky. 274

HUNT v. NANCE et al.

Court of Appeals of Kentucky.

March 8, 1906

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by May Hunt against Q. E. V. Nance and others. Judgment for defendants, and plaintiff appeals. Affirmed.

D. G Park, for appellant.

Crice &amp Ross, for appellees.

SETTLE J.

This appeal involves the title to 80 acres of land in McCracken county which the lower court adjudged to be the property of appellees, though this action was instituted by appellant to recover it. As originally brought the action was one of ejectment, but, upon the filing of the answer and other subsequent pleadings, it became a case of which only a court of equity could take cognizance. Stripped of all irrelevant matter, the answer as amended contained a denial of appellant's title and asserted title in appellees to the land in controversy by purchase and deed from T. J Sanderson, the former owner, accompanied by actual and continuous possession upon their part of the land from the date of the purchase. The affirmative allegations of the answer were traversed by reply, in which, as well as by amended petition, the deed from Sanderson to appellees was attacked by appellant upon the grounds that it was a voluntary conveyance without consideration, made in contemplation of Sanderson's insolvency, and to defraud his creditors. The amended petition and reply were controverted by answer and rejoinder respectively. It appears from the record that Sanderson was indebted to appellant in a considerable amount upon a judgment recovered by the latter against him in the Graves circuit court for slander; that executions had duly issued on the judgment and been returned "no property found," as to the greater part thereof. Furthermore, that after the return of the executions appellant instituted a second action in the same court against Sanderson to enforce the payment of the judgment, in which she procured an attachment that was levied on the land in controversy. The attachment was sustained by judgment of the court, and the land sold in satisfaction thereof, at which sale appellant became the purchaser. The sale was confirmed by the court, and later appellant received through the court's commissioner a deed to the land. Subsequently she brought this action to obtain possession of the land. Appellees were in possession of the land when it was sold under attachment, and also at the time of and before the institution of the slander and attachment suits; but they were not parties to either action.

After the issues were so changed by the pleadings as to make this a case for equitable relief, the lower court, on appellees' motion and over appellant's objection, transferred it to the equity docket. It is now insisted for appellant that this was error. Under the issues made by the pleadings, if the conveyance from Sanderson to appellees was not fraudulent as to the former's creditors, it unquestionably passed to appellees, or at least to appellee Q. E. V. Nance, the title to the land in controversy. Upon the other hand, if fraudulent, only a court of equity jurisdiction could properly adjudge it so. In many cases courts of law will afford relief against fraud or mistake, as where one is sued upon a note or other contract to which his signature was obtained by fraud. In such case he may in a court of law resist its payment on that ground. But only a court of equity has jurisdiction to cancel or declare void a deed or other instrument, whether upon the ground of fraud or mistake. By the change in the issues made by the pleadings such was the relief sought by appellant in this case, and, this being true, the transfer of the case to the equity docket was not only proper, but indispensably necessary. Section 6, subsec. 1 and section 10, subsec. 4, Civ. Code Prac.; Story's Eq. Juris. (12th Ed.) vol. 1, § 184; Reese v. Walton, 4 B. Mon. 513; O'Connor v. Henderson Bridge Co., 95 Ky. 633, 27 S.W. 251, 983; Wimmer v. Ficklin, 14 Bush, 194.

It is contended by counsel for appellant that the chancellor erred in admitting as competent evidence the deed by which Sanderson conveyed the land in controversy to appellees because it was acknowledged by the grantor before, and the acknowledgment certified by, a deputy of the predecessor in office of the county clerk by whom it was recorded, and was not lodged in the clerk's office during the term of office of such predecessor. We do not think this contention is sustained by the statute. A deed that is made, acknowledged, and certified according to law during the term of one clerk of the county court, though not filed or lodged for record during his term, may be lodged for record and recorded during the term of his successor in such office. Indeed, sections 510, 511 of the Kentucky Statutes of 1903 make it the duty of the county clerk to record a deed when lodge in his office for record, if acknowledged and certified according to law, whether such acknowledgment was taken before and certified by his predecessor in office, a deputy of the latter, or any other officer authorized to take and certify acknowledgments of deeds, and without regard to whether such deed was or not lodged in the clerk's office during the term of office of his predecessor. The deed in question appears to have been properly acknowledged and certified, and in addition its...