Dukes v. Davis

101 S.W. 390, 125 Ky. 313, 1907 Ky. LEXIS 299

• Court: Court of Appeals of Kentucky
• Decided: April 16, 1907
• Status: Published

Opinion

Opinion op the Court by

Judge Lassing

Reversing.

Mary E. Davis and her husband filed their suit in the McLean circuit court, seeking to recover of Mattie E. Dukes- and her husband 100 acres of land. She alleged that she was- the owner and entitled to the immediate possesion thereof, and that it was wrongfully withheld from her by the defendants, and had been so wrongfully withheld from her without right for more than five years last past before the filing of their suit. The defendants answered, denying that plaintiff Mary E. Davis was the owner of or entitled to the possession of the land described in the petition, or any part of it, and denying that it was wrongfully withheld from her. Defendants further allege that the female defendant, Mattie E. Dukes, was the owner of the land by inheritance from her father, Isaac C. Bates, and that he had acquired title thereto by purchase from J. M. C'leek, father of plaintiff Mary E. Davis, who sold it as executor of the will of his wife, Sallie W. Cleek, on July 5, 1887, to Isaac C. Bates, rvnd that for the purpose of perfecting the title to said property in Isaac C. Bates the plaintiff Mary E. Davis and her stepmother, Mary A. C'leek, united with J. M. Cleek in the execution of said deed. The affirmative matter in the answer was traversed in the reply, and the plaintiff further denied the execution of the deed, and alleged that the deputy court clerk who took the acknowledgment thereto had been induced by the fraud and deceit of her father, J. M. Cleek, and the purchaser, Isaac C.‘ Bates, to certify that it had been so executed and acknowledged by her. She pleaded, further, that at the time the deed purported to have been executed she was an infant about 17 years of age, and that before she became of age she had married one Knight, who died in 1897, and that she did not know or discover that she had any interest in or right to the land in controversy until something less than a year before the filing of this suit. In an amended reply she withdrew so much of the former reply as charged the clerk with the participation in any fraud in the execution of the deed or in the execution of the certificate thereon, and she denied that the clerk had certified that the deed had been aeknowledged by her at all, alleging that ber name was at that time Mary Elizabeth Cleek, and that she always signed her name “Mary E.,“ and not “Mary” Cleek. She further alleged that at the time of the execution of this deed she was in Calhoun, Ky., and not in Bowling Green, Ky., where the deed purports to have been acknowledged. The defendants traversed all of the affirmative matter set up in the reply, and pleaded, further, that, although the plaintiff Mary E. Davis may have been an infant at the time of the execution of the deed in question, yet, by the death of her husband, in 1897, all disability was removed, and that by her failure to bring her suit within three years after the removal of the disability she-had lost her right so to do, and they pleaded and relied upon the statute of limitations. The affirmative matter in the rejoinder was traversed in the surrejoinder. Issue was joined by the parties upon several other points which' we have not deemed material in determining the main question in issue, and which are therefore unnoticed in this opinion.'

Plaintiffs likewise filed a suit against J. M. Fraley and C. C. Coakley, seeking to recover about 100 acres of land which they alleged the defendants were wrongfully and without right withholding from her and had been for more than five years, and that the plaintiff Mary E. Davis was the owner and entitled to the immediate possession thereof. The 100 acres of land described in this suit was one-half of 200 acres of land which was conveyed by J. M. Cleek and wife, Mary A. Cleek, and daughter, Mary ID. Cleek, now Mary E. Davis, by deed dated July 5, 1887, and which was divided, upon the death of Isaac C. Bates, between his two children, Sallie R. Peeple and Mattie E. Dukes, and Sallie R. People conveyed her interest in said land to tliese defendants. The pleadings are identical in each of these suits, and by agreement of parties the cases were consolidated and tried together ; the same questions being involved in each.

The first point to be determined is: Did Mary.E. Davis sign and acknowledge the deed in question? If she did not, then it is necessary to consider the other questions at issue in this case. If she did sign and execute it at a time when she was under 21 years of age, has she delayed the bringing of her suit to recover same or to avoid the signing and executing of same during her minority for such a length of time as that she is now estopped from setting up any claim to the land, or seeking to avoid the force and effect of her act in signing and acknowledging the deed when an infant? The deed in question is as follows:

“This deed of conveyance made and entered into this' 5th day of July, 1887, by and from James M. Cleek, his wife, Mary A. Cleek, and daughter, Mary B. Cleek, of the county of Jefferson in the State of Texas, parties of the first part hereto,'unto and with Isaac C. Bates, of McLean county, in the State of Kentucky, witnesseth: That for and in consideration of the sum of seven hundred and fifty dollars, four hundred cash in hand, one hundred and seventy-five due in twelve months from date with interest from date, and one hundred and seventy-five dollars due in two years from date with inrerest from date, for which two last named sums notes of this date are executed by I. C. Bates to J. M. Cleek, the receipt of which is hereby acknowledged by the parties of the first' part, said parties have this day granted, bargained and sold, aliened and conveyed, and do hereby grant, bargain and sell, alien and convey unto the party of the second part and to his heirs and assigns forever a certain tract or parcel of land lying and being in the county of McLean, in the State of Kentucky, on the waters of Cypress creek, and bounded as follows, viz.: ‘Beginning on a large hickory and black oak, and running thence S. 40 degrees E. 244 poles to a hickory marked T. H. on the bank, of pond drain; thence N. 55 degrees E. 170 poles to a hickory, and white oak; thence N. 38 degrees W. 169% poles to a stake, with four hickories pointers; thence S. 55 degrees W. 124 poles to a swamp oak in the pond drain; thence down the drain with its meanders to an ash on the drain and then S. 26 degrees W. 10 poles to the beginning, containing two hundred acres more or less. ’ To have and to hold said lands to the party of the second part, his heirs and assigns, forever, with covenants of general warranty. The above land being the same willed by Mrs. M. A. Mitchell to her daughter Woodie Cleek, wife of J. M. Cleek, and mother of Mary Cleek. In testimony whereof the parties of the first part have hereunto set their hands the day first herein written. J. M. Cleek, ext. M. A. Cleek. M'ary Cleek.

“The State of Texas, County of Jefferson. Before me, J. A. Lanier, a notary public, in and for Jefferson county, Texas, on this day personally appeared ,1. M. Cleek, known to me to be the person whose name is subscribed to the foregoing instrument of writing, and the contents of- said instrument being fully ex-pained to said J. M. Cleek, after he had produced the same, he the said J. M. Cleek, thereupon declared that he did fully and voluntarily, execute and deliver the same to be his act and deed, for the purposes and consideration therein expressed, and consented that the same might be recorded, to all of which I certify. Given under my hand and seal of office at Beaumont, Texas., this 5th day of July, 1887. J. F. Lanier, Notary public Jefferson County, Texas. (Seal.)

“State of Kentucky, Warren County — set.: I, S. M. Matlock, clerk of the Warren county court, do certify that the foregoing deed from J. M. Cleek, etc., to I. C. Bates was produced to me in said county and acknowledged by Mary A. Cleek and Mary Cleek to be their act and deed, whereupon I have duly certified the same to the proper office for record. Given under my hand this 8th day of July, 1887. S. M. Matlock, C. W. C. C., by Robert Rodes, Jr., D. C.

“State of Kentucky, County of McLean — set.: I, J. A. Rudy, clerk of the McLean county court, certify that the foregoing deed was this day lodged in my office for record, that the same and the several certificates thereon and this certificate are duly recorded in my office. Given under my hand this July 12th, 1887. J. A. Rudy, clerk, per A. I. Moore, D. C.”

It. will be observed that the deed recites that it is made and entered into by and between James M. Cleek and wife, Mary A. Cleek, and daughter, Mary E. Cleek, of the county of Jefferson, in the State of Texas, parties of the first part, and Isaac C. Bates, of McLean county, Ky., party of the second part; that it is signed by “J. M. Cleek, Ext.,” M. A. Cleek and Mlary Cleek; that the acknowledgement to this deed by J. M. Cleek was taken before a notary public in Jefferson county, Texas, on the 5th day of July, 1887, and by M. A. Cleek and Mary Cleek before Robert Rodes, Jr., deputy county court clerk of Warren county, Ky., on July 8, 1887, and lodged .for record in the McLean county court clerk’s office on July 12, 1887.

There is an utter failure of proof in support of the allegation that there was any fraud practiced by either J. M. Cleek or Isaac C. Bates in the execution of this deed. It was acknowledged by J. M. Cleek in'. Texas, and the proof shows that he had been there for some time; that his wife, Mary A. Cleek, and daughter, Mary E. Cleek, left Texas shortly before that: time and came to Kentucky; that they were in Kentucky, and in Bowling Green, Ky., about the date upon: which this deed purports to have been acknowledged.. Mary E. Davis insists that she never appeared before the deputy court clerk and acknowledged the deed; that upon the date, to-wit, July 8, 1887, she was in Calhoun, Ky., visiting friends, and she introduced several witnesses who testified that they remembered that she made a visit to Calhoun, and was there on the Fourth of July. Some of them were una be to fix the year with certainty; others were. Judge J. C. Jonson testifies that he had had sufficient correspondence with Mary E. Davis to render him familiar with her handwriting ; that from his knowledge of her handwriting he was of the opinion that the signature “Mary Cleek” to the deed was that of the plaintiff. The deputy court clerk, who took the acknowledgement, testified that he had no personal memory of the transaction, but that he was well acquainted with Mary A. Cleek, and that he had known her for some years before the date upon which this acknowledgement was tafeen. The plaintiff Mary E. Davis testifies posit ively that she did not sign the deed, although she remembers having signed some paper after coming to Kentucky for the purpose of securing a sum of money, though she is not sure just what this paper was, excepting that it was in the nature of a receipt in order that she might receive $70. As to just what this $70 was for, or upon what account it was paid, the record is not clear. This is the substance of the testimony offered upon the question as to whether or not Mary E. Davis did in fact sign and acknowledge the deed,

She insists that she did not for two reasons: First. She remembers that she was in Calhoun, Ky., at the time when it purports to have been acknowledged. Second. That she always signed her name “Mary E.,” and not “Mary Cleek.” She introduced several friends who testifying from memory stated that she was in Calhoun, Ky., on the 4th of July, 1887, and for some weeks thereafter. Against this testimony is the officer’s certificate. The deed recites that it is a-deed from James M. Cleek, and wife, Mary A. Cleek, and daughter, Mary E. Cleek, to Bates. It is signed by “J. M. Cleek, Ext.,” M. A. Cleek, and Mary Cleek. and the officer’s certificate says that .it was acknowledged by Mary A. Cleek and Mary Cleek. It will be observed that none of the parties to this deed signed their names exactly as they are set out in the body of the deed, but in the body of the deed we find the recitation that it is executed by J. M. C'leek and his wile and daughter. The deputy court clerk who took the acknowledgement, and who now has no personal reccolleetion of the transaction whatever, says that he was well acquainted with Mary A. Cleek, who was the second wife of James M. Cleek,-and the stepmother of Mary E. Cleek, and it is not possible that he could have been imposed upon or have been mistaken and had the deed acknowledged by some one other than Mary A. Cleek. The deputy did not know and had no acquaintance with Mary E., but as the acknowledgement to the deed by Mary A. Cleek, whom he well knew, was taken by him at the same time as was the acknowledgement of Mary E. Cleek, it is altogether probable that the officer in certifying to the acknowledgement of Mary E. Cleek did so upon the statement of her stepmother, Mary A. Cleek, that she was the person named in the deed. J. M. Cleek was not in Kentucky at that time. He could have had no part in the perpetration of a fraud upon the officer, or in palming off some one else upon him as his daughter, Mary E. Cleek. If such a fraud was perpetrated, it must have been done by Mary A Cleek, and there is nothing in the record to warrant that this was the case. ' _

Section 3760 of the Kentucky Statutes for 1903 provides that: “Unless in a direct proceeding against himself or his sureties, no fact officially stated by an officer in respect of a matter about which he is by law required to make a statement, in writing, either in the form of a certificate, return or otherwise, shall be called in question, except uppn the allegation of fraud in the party benefited thereby or mistake on the part of the officer.” In Cox v. Gill, 83 Ky. 669, 7 Ky. Law Rep. 720, this court held that, where the officer’s certificate was regular, an allegation of mistake will not permit parol testimony that the acknowledgment was taken out of the county, or that the husband was present, or that the clerk failed to read or explain the contents of the deed. In Dowell v. Mitchell, 82 Ky. 47, 5 Ky. Law Rep. 746, this court held that the wife could not deny that a proper examination was made unless she alleges fraud against the grantee or mistake upon the part of the clerk. In the case of Tichenor v. Yankey, 89 Ky. 508, 11 Ky. Law Rep. 712, 12 S. W. 947, it was held that even under an allegation of fraud or mistake the clerk’s certificate could not be contradicted by parol testimony showing that the deed or mortgage was not voluntarily acknowledged by the wife, or that the husband was present. Although in the ease of Aultman-Taylor Co. v. Frasure, 95 Ky. 429, 16 Ky. Law Rep. 6, 26 S. W. 5, this court held that the wife had a right to show by parol that she did not voluntarily acknowledge the mortgag’e and was not separately examined; yet in that case the mortgagee was present at the time of the execution of the mortgage, and from her conduct, in his presence, he must have known that the wife was being coerced to do what she did not want to do, and, as he was being benefited thereby, this case clearly comes within that exception to the rule which provides that the act of the officer may be called in question collaterally when a fraud has been perpetrated by the party who is benefited thereby. In the case of Pribble v. Hall, 13 Bush 61, this court held that the fraud which will admit of an inquiry into the truth of the officer’s .certificate must relate to its obtention and not to the instrument acknowledged. In the case before us there is not the slightest evidence that any fraud was practiced in order to obtain the certificate from the deputy clerk. It stands unimpeached and unassailed. The plaintiff seeks to avoid the force and effect of it by relying upon her memory concerning a transaction alleged to have taken place 16 or more years ago. She says she did not execute it; the officei’s certificate says she did. She says she was not present, and her friends, speaking from memory, corroborate her, but the officer’s certificate says she was, and we are of opinion that more weight, faith, and credit should be given to the officer's certificate than to the mere memory of these witnesses. It is suggested by counsel for appellee that the deed was signed by some Mary Cleek, but not by plaintiff j yet there is not the slightest effort made to show that there ever was any other Mary Cleek in that locality or neighborhood, and from a careful reading of the record we are of opinion that the evidence offered in this case by plaintiff on this point is not. sufficient to outweigh the certificate of the officer to the effect that the deed was signed and acknowledged by Mary Cleek, daughter of James M. Cleek.

This being true, the next question for consideration is: Was plaintiff an infant at the time of the execution of this deed? And, if so, has she lost her right to recover by reason of the lapse of time? Section 2506 of the Kentucky Statutes for 1903 provides: “If, at the time the right of any person to bring an action for the recovery of real property first accrued such person was an infant, married woman, or of unsound mind, then such person, or the person claiming through Mm, may, though the period of fifteen years has expired, bring the action within three years after the time such ‘disability is removed.” If no disability had existed at the time of the execution of the deed, plaintiff would have had 15 years within which to bring her suit. She alleges, and the proof supports the allegation, that at that time she was an infant, that before she reached her majority she married, and that her husband died in 1897. It is insisted by appellants that although she may have been sn infant at the date of the execution of the deed, and may have married before she reached her majority, yet, by virtue of the enlarged rights given to married women under the act of 1894 (Acts 1894, p. 176, c. 76), known as the “Weissinger Act,” her disability was removed to such an extent that she might have then instituted hér suit, and because she failed to do so within three years thereafter, that she has'now lost her right so to do. This contention, however, is not well taken, for it has been held by this court that the passage of the Weissinger act did not remove the disability of coverture so as to permit the statute to run against a married woman; but the record in this case shows that plaintiff’s husband died in 1897, and she did not bring her suit until in August, 1904, or more than seven years after the disability of coverture was removed. Section 2505 of the Kentucky Statutes for 1903 provides that: “An action for the recovery of real property can only be brought within fifteen years after the right to institute it first accrued to the plaintiff.” The right in this case accrued to plaintiff immediately upon the execution of the deed. The statute does not provide she shall have 15 years after the removal of the disability, but 3 years after the removal of the disability, and that even though the full 15 years may have expired. In the case of Higgins v. Stokes, etc., 74 S. W. 251, 24 Ky. Law Rep. 2427, Martha Higgins in January, 1902, filed suit to recover certain land which she owned, and which her husband had sold and conveyed to the defendants in 1876; he having died in. 1900. The defendants pleaded the 30-year statute of limitation, also that plaintiff’s cause of action accrued more than 15 years before the passage of the Weissinger act in March, 1894, and that under section 2506 of the Kentucky Statutes her right to recover the land had been lost; but this court held that the disability of the wife was not removed by the passage of the Weissinger.act in 1894, and approved the case of Bransom etc., v. Thompson etc., 81 Ky. 387, 5 Ky. Law Rep. 359, in which it was held no limitation ran against a feme covert by reason of the sale of her land by her husband until three years after the removal of her disability, except under the 30-year statute.

Following the rule adopted by this court in the case of Higgins v. Stokes, etc., supra, appellee had 15 years from. July 8, 1887, within which to bring her suit, and, being an infant at the date of the execution of this deed, when her cause of action accrued, she was entitled to institute her action within 3 years after the removal of the disability. All disability was removed upon the death of her husband in 1897. Therefore the limitation controlling or governing her cause of action is that fixed by section 2505 of the Kentucky Statutes, inasmuch as the disability was removed more than 3 years before the expiration of the 15 years. The purpose of section 2506 is not to extend the statute of limitation 3 years in any eases save those in which the disability is not removed more than three years before the expiration of the 15 years; it being the purpose of section 2506 to give such persons as are under disability at the time the canse of action accrues 3 full years after the removal of the disability within which to bring their suit. And it is not the purpose of the statute to extend the period fixed save in those cases where it is necessary in order that the claimant may have the benefit of 3 full y.ears within which to sue. Plaintiff having failed to- institute her suit within 15 years from the time her cause of action accrued, and within 3 years after the removal of her disability, the trial court should have held the plea of the statute of limitation interposed by the defendants well taken, and a bar to plaintiff’s right to recover.

It is insisted by appellee that the exception should have been sustained to that part of the deposition of Judge Jonson in which he testifies from his acquaintance with the handwriting of the plaintiff Mary E. Davis he is of opinion that she signed the deed ini question in this ease, on the ground that the letters to which he referred, as having been received’by him were those written to him by her at a time when he was representing her in a matter of business, and were, privileged communications, and matters about which he could not testify. The point, ■ however, is not well taken, for the reason that he testified to no matter contained in said letters, or in any one of them, but merely to the fact that because of having received them he was familiar with the handwriting of the plaintiff Mary E. Davis.

Plaintiff further insists . that inasmuch as the defense introduced the witness M’ary A. Cleek, and made her their witness, they were thereby estopped from contradicting her testimony. Section 596, Civ. Code Prac., provides that: “The party introducing a witness is not allowed to impeach his credit, by evidence of bad character, unless it was indispensable that the party should produce him, and he may contradict him by other evidence, and by showing that he has made statements different from his present statement.” Under this rule, the witness Mary A. Cleek having theretofore made statements directly contradictory to those made at the time when she was giving her deposition, the defendants had the right to show that she had previously made different statements, and the trial court properly permitted this testimony to remain in evidence in the case. The rule is that, where a witness states a fact prejudicial to the party calling him, the latter may be allowed to show that the fact does not exist by proving that the witness has made statements to others inconsistent with his present testimony. Blackburn v. Commonwealth, 75 Ky. 181.

For' the reasons given, each of these consolidated cases is now reversed and remanded, with instructions to the trial court to set aside the judgments heretofore entered, and to adjudge tlie plea of the statute of limitation, interposed by the defendants in each case, a good and sufficient plea, and to dismiss plaintiff’s petition, with judgment for costs.