Shoptaw v. Ridgway's Adm'r

• Decision Date: 13 February 1901
• Citation: 60 S.W. 723
• Parties: SHOPTAW et al. v. RIDGWAY'S ADM'R et al. [1]
• Court: Kentucky Court of Appeals

60 S.W. 723

SHOPTAW et al. v. RIDGWAY'S ADM'R et al. ^[1]

Court of Appeals of Kentucky.

February 13, 1901

Appeal from circuit court, Bullitt county.

"Not to be officially reported."

Action by Charles Shoptaw and others against the administrator of S M. Ridgway and others to enforce a vendor's lien. Judgment for defendants, and plaintiffs appeal. Reversed.

J. W Croan, for appellants.

J. F Combs, for appellees.

O'REAR J.

In March, 1893, appellants sold to Mrs. S. M. Ridgway, a married woman, a tract of 50 acres of land in Bullitt county at the price of $775, of which $300 was paid in cash on that day and the remainder represented by four promissory notes of Mrs. Ridgway, executed to two of appellants, to secure which a lien was retained on the land. Mrs. Ridgway and her husband moved on the land, and continued to use and claim it under this purchase till her death, in 1896, nearly four years. In the meantime $98 additional was paid on the purchase money. Appellants prepared a deed the day the sale was made, which one of them--Charles Shoptaw-- signed, and then acknowledged. He alleges he then also delivered it. The other grantors (the legal title was in four of them as heirs of Alonzo Shoptaw, deceased) did not sign the deed till in July or August, 1893, and did not acknowledge it till 1897, after the death of both Mrs. Ridgway and her husband. Appellants filed this suit August, 1897, to enforce their lien on the land for the balance of the purchase money, making Mrs. Ridgway's administrator and heirs at law defendants. The administrator denied that the deed named had been delivered to his intestate, and denied that she had ever accepted it. He pleaded that the sale to her was, therefore, parol, and void, and he elected to sue for the recovery of the purchase money paid by decedent on the land. The circuit court dismissed appellants' petition, and awarded appellee administrator a lien on the land for the purchase money paid, with interest from dates of payment, subject to credit for rents of $45 per year. The proof showed the place to be valuable mainly as a fruit farm, and that since its sale to Mrs. Ridgway many of the trees had died, and the place had deteriorated in value. Since her death, Mrs. Ridgway's administrator, her brother-in-law, had leased it to different tenants.

It is assumed in argument, and the circuit court seems to have taken that view also, that an unacknowledged deed does not pass the legal title, and is but a bond for title; or, in other words, but an executory contract, and therefore not binding on the feme covert. This assumption is not entirely correct. A deed ample in form and expression, duly signed and delivered by the grantor, and accepted by the grantee, is effectual as between them, and those claiming under them, to pass the legal title to the land. This court has so held in Fitzhugh v. Croghan, 2 J. J. Marsh. 433. It was there argued that acknowledgment and registry were necessary to pass the complete title. Judge Robertson, for the court said that the registry acts "were made for the benefit of innocent purchasers and creditors alone." The acknowledgment of the deed before some designated officer is merely a means of proving its execution so as to entitle it to registry. It may, however, be proven otherwise than by a clerk's or notary's certificate. Acknowledgment is essential to pass title only in the case of a married woman's potential right of dower, and in that state of case the statute expressly requires that form to devest the wife of her dower rights in the property. Therefore it was not material to this deed that it should have been acknowledged by the grantors, if it were signed and delivered by them, and accepted by the grantee. That a married woman may be the grantee in a deed, and that the land so conveyed is subject to the payment of the purchase-money notes, has been so frequently upheld by this court as to no longer need the citation of authorities or argument to support the doctrine. The deed was found in the possession of appellee Ridgway's administrator (who was her husband's brother) after her death. He said he received it from his father, after her death; and the father said he received it from one of the appellants, one of the grantors. This grantor says he did not. While we do not consider the determination of this fact as in any wise conclusive of this case, so much stress has been laid on it in argument that we will notice it. The fact that the deed was found in appellee's possession shifts to him the burden of disproving that element of the delivery. Being unable, by reason of a conflict of witnesses' statements, to do this satisfactorily, we should conclude that he has failed to sustain this burden. But, even should we have found that fact otherwise, we would feel compelled under the law to say that in this case there is sufficient competent evidence to satisfy the legal requirements of delivery and acceptance. By reason of the death of Mrs. Ridgway and of her husband,...