Smith v. Vest

265 S.W.3d 246, 2007 Ky. App. LEXIS 466, 2007 WL 4209084
CourtCourt of Appeals of Kentucky
DecidedNovember 30, 2007
Docket2006-CA-000864-MR
StatusPublished
Cited by16 cases

This text of 265 S.W.3d 246 (Smith v. Vest) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Vest, 265 S.W.3d 246, 2007 Ky. App. LEXIS 466, 2007 WL 4209084 (Ky. Ct. App. 2007).

Opinions

OPINION

ACREE, Judge.

Audrey Lee Smith (Lee) appeals from an Opinion and Order of the Shelby Circuit Court granting summary judgment in favor of James W. Vest, Sr. (James) and concluding that a deed to which they were parties was void ab initio for failing to satisfy the statutory requirements of KRS 382.135.1 Finding error in the circuit court’s decision, we reverse.

On June 7, 1971, James became the sole fee simple owner of certain real property in Shelby County, Kentucky. James retained ownership of this property for more than a quarter century. In 1998, James utilized the services of a local attorney to prepare a deed conveying his property, at least in part, to his daughter, Sandra K. Smith (Sandra) and her husband, Lee, the Appellant. The parties executed that deed on May 22, 1998. Five days later, the deed was lodged of record with the Shelby County Clerk’s office.

Sandra died sometime subsequent to the filing of this deed. In 2005, James filed suit against Lee alleging the May 22,1998, “Deed transferring Mr. Vest’s property to his daughter and husband does not cite any consideration and therefore is void or voidable pursuant to KRS 382.135 and common law principles.” The referenced statute requires parties to a deed to include within its body what is commonly referred to as a “consideration certificate.”

On October 26, 2005, James filed a motion for summary judgment arguing that the deed is void ab initio for the reasons stated in his complaint. On January 4, 2006, the Shelby Circuit Court granted James’ motion holding that the deed in question did not meet the requirements of KRS 382.135 and was “so flawed on its face as to render it void ab initio.

Lee challenged the trial court’s decision by filing a motion to alter, amend or vacate the judgment. In denying that motion, the trial court specifically stated that “the basis for this Court’s decision is statutory compliance with deed formalities, not a claim for failure of consideration.” This appeal followed.

When a trial court considers a motion for summary judgment, it must view the evidence in a light most favorable to, and resolve all doubts in favor of, the party opposing the motion. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). The court should not grant summary judgment if any issue of material fact exists. Id. This Court, in turn, must determine whether the trial court correctly found that no genuine issue of material fact existed and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996). Since findings of fact are not in dispute, we review the trial court’s decision de novo. Id.

[249]*249Additionally, the interpretation of a deed is a matter of law and, for that reason as well, our review of this case is de novo. Florman v. MEBCO Ltd. Partnership, 207 S.W.3d 593, 600 (Ky.App.2006). In interpreting a deed, we look to the intentions of the parties, “gathered from the four corners of the instrument,” Phelps v. Sledd, 479 S.W.2d 894, 896 (Ky.1972) (citations omitted), giving common meaning and understanding to the words used. Franklin Fluorspar Co. v. Hosick, 239 Ky. 454, 39 S.W.2d 665, 666 (1931). We will “not substitute what grantor may have intended to say for what was said” in the deed itself. Phelps, 479 S.W.2d at 896. “The rule is also well settled that the deed will be construed most strongly against the grantor and in favor of the grantee if it admits of two constructions.” Florman, 207 S.W.3d at 600 fn. 23, quoting Franklin Fluorspar, 39 S.W.2d at 666.

Before steering our attention to the deed, however, we first examine the statute in question, for its violation is the foundation of the circuit court’s judgment. The statute’s relevant provision requires that a deed to real property shall contain the following:

(a) The mailing addresses of the grantor and grantee;
(b) A statement of the full consideration; and
(c) In the case of a transfer other than by gift, or with nominal or no consideration a sworn, notarized certificate signed by the grantor or his agent and the grantee or his agent, or the parent or guardian of a person under eighteen (18) years old, that the consideration reflected in the deed is the full consideration paid for the property; or
(d) In the case of a transfer either by gift or with nominal or no consideration, a sworn, notarized certificate signed by the grantor or his agent and the grantee or his agent, or the parent or guardian of a person under eighteen (18) years old, stating that the transfer is by gift and setting forth the estimated fair cash value of the property.

KRS 382.135(1). County clerks are prohibited from filing “any deed that does not comply with the provisions of this section.” KRS 382.135(5).

Lee agrees with the legal concept that failure to conform to KRS. 382.135(1) makes a deed unrecordable, but argues that this flaw does not make the document void or legally insufficient so as to divest Lee of title to the property. He also argues that the deed in question substantially complies with the statute. We agree with both contentions.

In general, recording a deed is “necessary only to secure the title against subsequent creditors and purchasers[.]” Travis v. Saunders, 198 Ky. 742, 743, 249 S.W. 1040, 1040 (1923), citing Fitzhugh v. Croghan, 25 Ky. 429, 2 J.J. Marsh. 429 (1829). It has been consistently held in this state that deeds are valid between the parties claiming under them, even though they may not be recordable instruments under our statutes. See Fitzpatrick v. Layne, 291 Ky. 523, 165 S.W.2d 13, 17 (1942) (a deed duly executed and delivered need not be recorded to pass title); Blankenship v. Green, 283 Ky. 700, 143 S.W.2d 294, 296 (1940) (a deed properly signed is good between the parties even if it is not acknowledged or recorded); Brewer v. Lee, 252 Ky. 798, 68 S.W.2d 409, 410 (1934) (an unrecorded deed is valid to both parties to the deed but also all others who have notice).

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Smith v. Vest
265 S.W.3d 246 (Court of Appeals of Kentucky, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
265 S.W.3d 246, 2007 Ky. App. LEXIS 466, 2007 WL 4209084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-vest-kyctapp-2007.