Starr Piano Co. v. Petrey

• Decision Date: 17 February 1916
• Citation: 168 Ky. 530,182 S.W. 624
• Parties: STARR PIANO CO. v. PETREY ET AL.
• Court: Kentucky Court of Appeals

182 S.W. 624

168 Ky. 530

STARR PIANO CO. v. PETREY ET AL.

Court of Appeals of Kentucky.

February 17, 1916

Appeal from Circuit Court, Whitley County.

Action by the Starr Piano Company against Lucy Petrey and R. B Sutton. From a judgment for defendant Sutton, plaintiff appeals. Affirmed.

W. L Bruner, of London, for appellant.

M. A Gray, of Corbin for appellees.

CARROLL J.

Lucy Petrey, while living in Laurel county, Ky. and in March, 1911, purchased from the Starr Piano Company a piano, for which she executed her notes and also a mortgage on the piano to secure their payment, which mortgage was duly recorded in the county clerk's office of Laurel county. This mortgage was signed by Lucy Petrey "in the presence of Frank H. March and E. J. Ford." After this she moved to Whitley county, Ky. and gave to the appellee, R. B. Sutton, a mortgage on the same piano, which mortgage was duly acknowledged and recorded in the county clerk's office of Whitley county. Subsequently the piano company brought this suit in the Whitley circuit court against Lucy Petrey and Sutton to recover judgment on the note, and for the enforcement of its mortgage lien on the piano. Sutton as a party to this suit asserted his mortgage lien, claiming that it was superior to the lien of the piano company because its mortgage was not a recordable instrument, and, having no actual notice, he was not affected by the constructive notice that a duly recorded mortgage conveys.

It will be observed that the mortgage executed to the piano company was not acknowledged before an officer; the signature of Lucy Petrey being attested by two witnesses in the manner stated. And the certificate of the clerk of the Laurel county court reads:

"I, Ira J. Davidson, clerk of the county court in and for the county and state aforesaid, do certify that the foregoing mortgage from Lucy Petrey to the Starr Piano Company was this day produced to me in my said office, whereupon the same, together with the foregoing, and this my certificate, have been duly recorded in my office."

The only question in the case is: Was this mortgage, the recordation of which was certified to by the clerk in the manner stated, a recordable instrument on the showing made by the record? If it was, the mortgage lien of the piano company is superior to the lien of Sutton, and the judgment should be reversed. If it was not, the fact that it was recorded did not give Sutton constructive notice of its existence, and his lien should be held superior to that of the piano company.

The statutes controlling this question are sections 496, 501, 511, and 519a, reading as follows:

"Sec. 496. No deed or deed of trust or mortgage conveying a legal or equitable title to real or personal estate shall be valid against a purchaser for a valuable consideration, without notice thereof, or against creditors, until such deeds shall be acknowledged or proved according to law, and lodged for record."

"Sec. 501. Deeds executed in this state, by married women, or other persons, may be admitted to record: (1) On the acknowledgment, before the proper clerk or notary public, by the party making the deed; (2) or by the proof of two subscribing witnesses, or the proof of one subscribing witness, who shall also prove the attestation of the other; (3) or by proof of two witnesses that the subscribing witnesses are both dead; and also like proof of signature of one of them and of the grantor; (4) or by like proof that both of the subscribing witnesses are out of the state, or that one is so absent and the other is dead; and also like proof of the signature of one of the witnesses and of the grantor; (5) or on the certificate of a clerk of a county court of this state, or notary public, that the same had been acknowledged or proved before him, as required by

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