Philip Muncy v. Roscoe Eversole

• Court: Court of Appeals of Kentucky
• Decided: September 9, 2021
• Docket: 2020 CA 001153
• Status: Unknown

Opinion

RENDERED: SEPTEMBER 10, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2020-CA-1153-MR

PHILIP MUNCY APPELLANT

APPEAL FROM LESLIE CIRCUIT COURT v. HONORABLE OSCAR G. HOUSE, JUDGE ACTION NO. 10-CI-00076

ROSCOE EVERSOLE AND CATHY EVERSOLE APPELLEES

OPINION AFFIRMING

** ** ** ** **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

COMBS, JUDGE: This case involves a dispute over the purchase of real property.

Philip Muncy, the Appellant, appeals a judgment of the Leslie Circuit Court

entered in favor of Roscoe and Cathy Eversole, the Appellees, on August 20, 2020.

The circuit court determined that the Eversoles were bona fide purchasers for value

(BFP’s) of certain tracts of real property without notice of any alleged defect in

title to any part thereof. Consequently, the court concluded that the Eversoles’ title to the disputed tract is superior to the claim asserted by Muncy. After our review,

we affirm.

The Eversoles were successful bidders at a judicial sale of real

property located in Leslie County. The sale was conducted on January 30, 2004,

after which date the court’s master commissioner submitted his report of sale. No

exceptions were filed. The sale was confirmed by the court on April 7, 2004, and

the Eversoles’ deed to the property was duly executed. However, before their deed

was recorded, Muncy recorded a deed to a tract included in the master

commissioner’s deed to the Eversoles.

On March 24, 2010, the Eversoles filed a petition for declaration of

rights. They sought a declaration that they were the owners in fee simple of the

disputed tract. They requested that Muncy’s recorded deed be declared null and

void. On July 26, 2010, Muncy filed an unverified answer to the petition. He

denied that the Eversoles were the lawful owners of the disputed tract.

By order entered on September 8, 2010, the circuit court granted the

parties’ joint motion for a bench trial. However, on March 5, 2011, the trial date

was cancelled because the parties agreed that the matter could be decided on their

briefs. A briefing schedule was established by agreed order entered on May 25,

2012.

-2- The Eversoles’ brief was filed with the court on September 5, 2012.

They contended that they were bona fide purchasers for value of the disputed tract

without notice of Muncy’s claim to the property. They argued that Muncy had

been on constructive notice of the commissioner’s sale of the disputed tract as

early as 2003 -- prior to the sale -- and that he had failed to record the instrument in

his possession or to dispute the sale. Additionally, they claimed that the purported

deed to Muncy was invalid for lack of consideration.

By order entered on November 19, 2012, Muncy was given until

December 7, 2012, to file his brief. On March 13, 2013, the Eversoles filed a

motion requesting that the court take the matter under submission. The Eversoles

explained that the court’s deadline for Muncy’s brief had been extended twice and

yet no brief had ever been filed. The Eversoles requested a ruling on the merits.

On February 21, 2019, the Eversoles filed another motion for ruling.

On August 20, 2020, the judgment of the Leslie Circuit Court was entered. The

circuit court found that there was no evidence to show that the Eversoles had either

actual or constructive notice of Muncy’s claim to the disputed property before they

purchased the property. Consequently, it concluded that the Eversoles were bona

fide purchasers for value without notice and that their interest in the deeded

property was superior to Muncy’s alleged interest. Acting pro se, Muncy filed this

timely appeal.

-3- On appeal, Muncy argues that his interest in the property should be

declared superior because his deed to the disputed tract was recorded before the

Eversoles’ deed. Muncy explains that he had no actual notice of the

commissioner’s sale of the property that he claims to have owned since 1996. He

suggests that a warning order attorney should have been appointed so that he could

have been contacted about the impending judicial sale. Finally, he argues that his

deed to the disputed property was adequately supported by consideration.

Under our jurisprudence, deeds to real property are to be recorded in

the public record.

Where an owner fails to record his deed, there is a presumption that a subsequent purchaser who buys the property and pays for it has no notice of an infirmity in the title; and unless there is substantial proof of facts which would put a reasonable man on notice, the subsequent purchaser has the better right.

McKinney v. Fox, 305 Ky. 659, 661, 205 S.W.2d 315, 316 (1947) (citation

omitted). Thus, the burden of production and persuasion clearly lies with the party

challenging the status of a subsequent bona fide purchaser.

Through the public record, the Eversoles established that they had

purchased the disputed property for value. Consequently, the burden shifted to

Muncy -- as holder of an unrecorded instrument -- to demonstrate that the

Eversoles had acted with notice of his prior interest. Muncy provided no such

evidence. In fact, he presented no evidence whatsoever. Having failed to offer any

-4- evidence or legal argument of any sort to the circuit court, Muncy’s contentions on

appeal are unavailing.

We AFFIRM the judgment of the Leslie Circuit Court.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Philip Muncy, pro se Frank C. Medaris, Jr. Hyden, Kentucky Hazard, Kentucky

-5-