Low & Whitney v. Blinco
| Decision Date | 20 October 1874 |
| Citation | 73 Ky. 331 |
| Parties | Low & Whitney v. Blinco, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM DAVIESS CIRCUIT COURT.
RAY & WALKER, For Appellants,
Revised Statutes, chap. 21, sec. 17, 1 Stanton, 262.
2 Duvall, 301, Graves, & c. v. Ward, & c.
4 Bibb 78, Helm v. Logan.
3 Marsh. 221, Mummy, & c. v. Johnson, & c.
5 B Mon. 233,Halley v. Oldham.
1 Dana 166, Graham v. Samuel.
4 Dana, 258, Morton v. Robards.
9 Dana, 69, Edwards v. Brinker.
1 Dana, 360, Million v. Reiley.
4 J. J. Marsh. 641, Butts v. Chinn.
3 Dana, 547, Chinn v. Butts.
5 Dana, 271, Addison v. Crow, & c.
6 B. Mon. 607, Underwood v. Ogden.
1 Met. 41, Clark v. Trail.
3 Met. 186, Shippen v. Curry.
SWEENEY & STUART, For Appellees.
(Brief not in record.)
Low & Whitney and other judgment creditors of J. A. Blinco sued out their executions in March, 1859, and in April thereafter caused them to be levied on a tract of seventy-six acres of land, as the property of their debtor. Prior to all this, on the 30th of June, 1858, the said debtor had sold and conveyed this land to the appellee, B. B. Blinco. The deed, however, had not been properly acknowledged and lodged for record within eight months after its date, nor indeed at the time the land was levied on by the sheriff. In May, 1859, less than one month after the levies were made, and before the sheriff had attempted to sell, appellee procured his vendor to re-acknowledge his deed, and at once lodged it for record in the proper office. On the 27th of June the sheriff sold the land pursuant to the levies, and it was purchased by Low & Whitney. The right of redemption was afterward levied on and sold; it was also bid in by Low & Whitney. In January, 1861, they procured the sheriff to convey the land to them, and in 1868 put their deed to record. This controversy is between the holder of the conveyance, bearing date June 30, 1858, and the execution purchasers.
Section 9, chapter 24, of the Revised Statutes, provides that " no deed conveying any title to or interest in land for a longer time than five years, nor any agreement in consideration of marriage, shall be good against a purchaser for a valuable consideration, not having had notice thereof, or any creditor, unless the same be acknowledged by the party who shall execute the same, or be proved and lodged for record in the proper office, as prescribed by law."
Section 15 of the same chapter provides that deeds made by residents of this state, to be good against a purchaser for a valuable consideration without notice, or any creditor, " except from the time the same shall be legally acknowledged or proved and lodged for record," must be so lodged within eight months after the date thereof. Appellee failed to lodge his deed for record within eight months, and appellants insist that the acknowledgment and the lodging of the same after the execution liens had been perfected by the levies in no wise affect their title. The question thus raised has frequently been before this court for consideration, and the decisions thereon are singularly inconsistent with each other. In the earlier cases it was held that a deed not lodged for record within the prescribed time was absolutely void as to any creditor.
In Morton v. Robards (4 Dana, 258) this construction of the statute was repudiated, the court holding that the legislature intended only to regulate legal conveyances, and to leave untouched the equities of the parties, and that while the legal title of a party not lodging his deed for record within eight months from its date was not good, yet his equity was unimpeachable, and that a title acquired under an execution sale with notice of such equity would be made to yield to it in a court of chancery.
In Halley v. Oldham (5 B. Mon. 233) the correctness of the doctrine of Morton v. Robards was doubted. It was, however, conceded that if the execution creditor was himself the purchaser, then notice to him before his purchase of the existence of the unrecorded deed would deprive him of its fruits, and that a court of equity might compel him to relinquish any legal advantage he might have acquired under it.
Reconciling as far as practicable the various reported cases, we deduce from them the following views:
1. A purchaser at an execution sale, who has no notice of a title-bond or deed that has not been recorded within the prescribed time, will be protected in his title even in a court of equity.
2. A purchaser with notice will also be protected, in case the execution creditor acts in good faith and without notice. Under such circumstances the creditor has the right to sell, and the purchaser necessarily takes all the title that the creditor can require the sheriff to sell.
3. That notice to the purchaser after his purchase does not affect him. He is by his purchase invested with an inchoate legal title, which he has...
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