Lewis v. Prather

• Decision Date: 28 February 1893
• Citation: 21 S.W. 538
• Parties: LEWIS v. PRATHER.
• Court: Kentucky Court of Appeals

21 S.W. 538

LEWIS v. PRATHER.

Court of Appeals of Kentucky.

February 28, 1893

Appeal from circuit court, Washington county.

Not to be officially reported.

Action by Isaiah Prather against Levi Lewis to set aside a deed to one Keeley to certain land, and establish and record a certain deed of the same property to plaintiff. From a judgment for plaintiff, defendant appeals. Affirmed.

W. E. Selecman, for appellant.

J. W. S. Clements, for appellee.

BENNETT, C.J.

It seems that the appellant, Lewis, sold to the appellee his interest in his father's land for the agreed sum of $20. A deed to the land was made, signed, and acknowledged by Lewis, and delivered by the direction of Lewis and the appellee to T. J. Prather, son of the appellee, in escrow, to be held by him until the title to the appellant's father could be investigated, and the money paid, and was, upon the happening of these conditions, to be delivered to the appellee; but before the conditions happened and the deed was delivered, the appellant obtained the possession of the deed, and then sold and conveyed the land by deed to Keeley. The evidence shows with reasonable certainty that Lewis surreptitiously obtained the possession of the deed, and Keeley knew it, and there was no cancellation of the contract of sale, nor authorization for him to withdraw the deed. The appellee sued to set aside the Keeley deed, and to have his deed established and recorded, which the lower court did. There is no doubt that a deed in escrow is not within the statute of frauds, etc. The process is simple. The deed must be made, signed, and acknowledged. It is then delivered to a third person in escrow, as the agent of both parties, to be held by him until the conditions are complied with, and then handed over to the grantee by his said agent. Therefore, in the nature of things, the transaction is not within the statute of frauds. The tax sale relied on by Keeley is, according to his own showing, void.

Judgment affirmed.