Sutton v. Puckett

Court of Appeals of Kentucky

Sutton v. Puckett

11 Ky. Op. 89, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 156

DecidedMarch 2, 1881

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This text of 11 Ky. Op. 89 (Sutton v. Puckett) 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

Sutton v. Puckett, 11 Ky. Op. 89, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 156 (Ky. Ct. App. 1881).

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Opinion

Opinion by

Judge Hines:

The mortgage in this case purports to convey the whole estate in the mortgaged property. The homestead right is thus destroyed, whether the fee be in the wife or in the husband. Wing v. Hayden, 10 Bush (Ky.) 276.

The mortgage was acknowledged before a deputy, who made his indorsement in the usual form, and afterwards the clerk wrote out the certificate as if the acknowledgment had been made before him. [90]*90put the mortgage and certificate to record, but failed to sign the certificate written on the mortgage or on the record. After the term of service of the clerk had expired, the mortgage remaining in the office, his successor signed the name of the former clerk both to the mortgage certificate and to the certificate on the record. The mortgage was executed while the Revised Statutes were in force. 1 Rev. Stat. (1867), Ch. 24, § 27, authorizes such signing without prescribing the effect. The effect of this signing by the clerk of the certificate made by his predecessor is to1 give it the same force and validity that it would have had if signed by the clerk who wrote it. Otherwise the statute is imperative. Treating the certificate as if signed by the clerk who wrote it, there being no fraud charged upon the mortgagee, and no mistake alleged on the part of the clerk making the certificate, it is conclusive as to the fact of acknowledgment as certified. Harp ending’s Exrs. v. Wylie, 14 Bush (Ky.) 380.

M. Merritt, for appellant. M. Yeoman, for appellee.

Judgment reversed and cause remanded with directions for further proceedings.

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Opinion by

Judge Hines:

The mortgage in this case purports to convey the whole estate in the mortgaged property. The homestead right is thus destroyed, whether the fee be in the wife or in the husband. Wing v. Hayden, 10 Bush (Ky.) 276.

The mortgage was acknowledged before a deputy, who made his indorsement in the usual form, and afterwards the clerk wrote out the certificate as if the acknowledgment had been made before him. [90]*90put the mortgage and certificate to record, but failed to sign the certificate written on the mortgage or on the record. After the term of service of the clerk had expired, the mortgage remaining in the office, his successor signed the name of the former clerk both to the mortgage certificate and to the certificate on the record. The mortgage was executed while the Revised Statutes were in force. 1 Rev. Stat. (1867), Ch. 24, § 27, authorizes such signing without prescribing the effect. The effect of this signing by the clerk of the certificate made by his predecessor is to1 give it the same force and validity that it would have had if signed by the clerk who wrote it. Otherwise the statute is imperative. Treating the certificate as if signed by the clerk who wrote it, there being no fraud charged upon the mortgagee, and no mistake alleged on the part of the clerk making the certificate, it is conclusive as to the fact of acknowledgment as certified. Harp ending’s Exrs. v. Wylie, 14 Bush (Ky.) 380.

M. Merritt, for appellant. M. Yeoman, for appellee.

Judgment reversed and cause remanded with directions for further proceedings.

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11 Ky. Op. 89, 2 Ky. L. Rptr. 316, 1881 Ky. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-puckett-kyctapp-1881.

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