Taylor v. M'Donald's H's.

• Decision Date: 01 January 1811
• Citation: 5 Ky. 420
• Parties: Taylor <I>vs.</I> M'Donald's heirs.
• Court: Kansas Court of Appeals

5 Ky. 420

Taylorvs.

M'Donald's heirs.

Court of Appeals of Kentucky.

Fall Term, 1811.

Opinion of the Court by Judge LOGAN. Judge CLARK absent.

THIS was an action of ejectment, in which the court below instructed the jury that from the title papers produced the plaintiff was not entitled to recover against the defendants; and thereupon the jury found for the defendants.

To that opinion of the court the plaintiff excepted, and has appealed to this court. In the bill of exceptions the titles of both parties are exhibited.

In deducing a right, the plaintiff has produced a deed of conveyance duly executed from the patentee in the year 1786, together with other deeds, passing the legal title through several mesne purchasers to himself, purporting to have been duly executed; but none of those deeds were recorded in this state until the year 1803. In that year, and in the year 1806, they were recorded in the clerk's office of this court, on being properly certified for that purpose from another state.

The defendants, in opposing the plaintiff's right to a recovery, have relied on a deed of conveyance executed for the same land, by the patentee to Jacob Brechmer, on the 28th of April, 1795, which has been also duly certified from the state of Virginia, and recorded in Nelson county, in July, 1795.

At the time of executing the deed to Brechmer, Broadhead, the patentee, gave him also a power of attorney, in which he not only authorized him to sell and convey, but likewise granted to him all his lands in Kentucky, in consideration of £3000. This power of attorney was also recorded in Nelson county, in July, 1795. In October of the same year, Brechmer, as the attorney in fact of Broadhead, executed a deed of conveyance for the same land, to Richard and Alexander M'Donald, under whom the defendants hold. This deed was recorded in Washington county, in which the land lies, in November following.

In examining this case, two questions will be found proper for decision; 1st, whether the title adduced by the plaintiff, was such on which the action of judgment could be maintained: and 2dly, if it were such, have the defendants shown themselves subsequent purchasers within the protection of any statutory provision?

Upon the first point there can be but little doubt. The due execution of the deed passed the legal title from the patentee to the purchaser, and it remained good and effectual in law against the world, except creditors and subsequent purchasers. The omitting to record a deed within the time and manner prescribed by law, does not reduce it to a mere equitable estate. It retains its legal quality, and as such is sufficient to maintain an ejectment against one holding an equity only. But if the deed be not recorded as the statute requires, then by the operation of law, it ceases to retain its legal efficacy against a subsequent bona fide purchaser for a valuable consideration. We shall proceed therefore to the second point proposed, whether the defendants are within the protection of the statute, as subsequent purchasers?

The statutes which have from time to time been passed on this subject, seem to have had principally in view the regulating conveyances. One holding the prior equitable title is to be preferred to an equity of posterior date. But when the junior equity combines with it the legal title, is free from fraud, and founded on a valuable consideration, the prior equity must yield. Between estates equal in quality it may be assumed as a principle, that those having the...