Sewell v. Nelson. Mrs. Patrick to G. B. W. Sewell was a loaning of money and the securing of it by a mortgage which was on its face apparently a deed, and which was subsequently paid off by Mrs. Patrick, whether G. B. W.'s vendee without consideration-that is, without such full and fair consideration as brings him within the description of a bona fide purchaser for value-will be allowed to successfully claim against Mrs. Patrick's vendee for value, and without knowledge of the deed to her mortgagee's vendee. The burden was upon appellant to show that he was a purchaser for value. It was shown that Vivion was a purchaser for value; that he had not actual knowledge or notice of the transactions between Mrs. Patrick and G. B. W. Sewell, or the one between G. B. W. Sewell and appellant. He had thereby made a prima facie case of title, and upon that was entitled to recover, unless appellant could establish either that Vivion had actual notice at the time of his purchase of appellant's claim, or that appellant was in that attitude that gave Vivion constructive notice of the state of the record. It is upon the latter phase alone that appellant pretends to have made a case. The statute in force at the time of the execution of these deeds permitted a purchaser to have his deed recorded within 60 days after its execution, to have the same effect as if recorded on the day of its execution. Section 14, c. 24, General Statutes. However, that statute must be read in connection with section 2 of chapter 44 of the General Statutes, which is: "Every gift, conveyance, assignment, transfer or charge made by a debtor, of or upon any of his estate without valuable consideration therefor, shall be void as to all his then existing liabilities, but shall not, on that account alone, be void as to creditors whose debts or demands are thereafter contracted, ner as to purchasers with notice of the voluntary alien Sewell v. Nelson. tion or charge; and though it be adjudged to be void as to a prior creditor, it shall not therefore be deemed to be void as to such subsequent creditors or purchasers." "Between estates equal in quality it may be assumed as a principle that those having the priority will be preferred. 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." Taylor v. McDonald's Heirs, 2 Bibb, 422. In the early case of Gilpin v. Davis, 2 Bibb, 418, 5 Am. Dec., 622, which was a contest between two persons claiming under deeds from the same vendor, the first one of which was shown to have been fraudulent, the junior was allowed to prevail. Said the court: "If he [the holder of the junior conveyance] was a bona fide purchaser for valuable consideration, he was qualified, under the statute, to avoid the prior conveyances from Morgan by showing that they were made with an intent to deceive him." Section 2 of article 1 of chapter 44 of the General Statutes, above quoted, was the same as section 1907 of our present statutes. In the case of Winter v. Mannen, 81 Ky., 124 (4 ̧ R., 949), the court had occasion to consider this statute. In that case the owner had made a voluntary conveyance to his children, some of whom reconveyed to him. After his death his heirs at law sold and conveyed the land to Pepper for full consideration in money. Those of the original heirs who had not reconveyed to the father brought this action against the last vendees. The court held: "The very language of the statute implies the converse of its expressed meaning, that a purchase made with actual notice of the voluntary alienation is void, which, of course, is subject to the condition that the voluntary alienation is not in addition actually fraudulent, for then a purchaser for value with actual notice would be protected." The court held Vol. 118-12 Sewell v. Nelson. that, although the voluntary conveyance had been duly recorded, it did not constitute constructive notice to a subsequent purchaser for value. In Ward v. Thomas, 81 Ky., 452 5 R., 495), the court held that the recording of a voluntary conveyance was not constructive notice as against subsequent purchasers or creditors. These cases were fol lowed in Brown v. Connell, 85 Ky., 404 (9 R., 27) 3 S. W., 794. The court said, considering the second section of chapter 44 of General Statutes: "Under the first section of the statute supra, the rule is that, if the conveyance is actually fraudulent, the subsequent purchaser for value is not affected by either constructive or actual notice of the Conveyance. Under the second section the rule is that a voluntary conveyance is prima facie fraudulent as to a subse quent purchaser, and unless he has actual notice of the conveyance his title is perfect, and he is not affected by the fact that the voluntary conveyance is of record. Aetual, and not constructive, notice must be brought home to him." Jones' Adm'r v. Jenkins, 83 Ky., 391 (7 R., 408). In Enders v, Williams, 1 Metc., 352, construing a statute not so favorable to purchasers as the statute now under consideration, it was held: "A voluntary conveyance should, however, be deemed presumptively fraudulent against a subsequent purchaser for a valuable consideration without actual notice. It should not, in our opinion, be deemed absolutely void, but the question of fraud should be left open for investigation. The subsequent sale, however, raises a strong presumption of fraud in the gift, and imposes the burden of proving that it was made bona fide on the person who claims under the voluntary conveyance." "Constructive notice, arising from the recording of the conveyance, is not sufficient to affect the conscience of the purchaser. Actual knowledge is necessary for this purpose." Sewell v. Nelson. We do not find it necessary to pass upon the question of actual fraud charged by appellee against appellant and his vendee, G. B. W. Sewell. It seems to us to be clearly settied as the law of this State that where the senior conveyance, even though recorded, was voluntary, or not based upon that adequate consideration that makes its vendee a purchaser for value, within the contemplation of law, the subsequent purchaser for actual and sufficient value is not required to take constructive notice of the first conveyance, but, as against it, his equity and legal title will prevail. It is claimed by appellant that the deed from Patrick to Vivion did not embrace the land in controversy. The description in that deed, so far as it affects the land in controversy, is this: "One tract lying on the waters of the Kentucky river, in said county, above and below the town of Jackson, known as the Town Tract' of the Sewell estate, and containing 2,400 acres." It was shown that town tract, as mentioned in this deed, embraced all of the land of Sewell in that immediate locality, and which was described in the commissioner's report to partition the estate of Sewell as being one tract adjoining the town of Jackson, and containing about 2,500 acres. This tract was divided into two tracts, one of which was subsequently desig nated as the "Town Tract," containing 1,018 acres, and the other containing 1,482 acres. We are satisfied from the evidence and exhibits in this case that the deed to Vivion was intended to and did embrace the land in contest. The other legal question presented by this appeal is whether appellant is protected by the statutes of limitation. Appellee was in possession at the time of the bringing of this suit, and had been for five or six years before. Appeliant had never been in possession of the land. Appellee brought the suit to quiet his title against appellant's claim, Sewell v. Nelson. appellee asserting title for himself. Appellant set up his claim under the deed from G. B. W. Sewell. Appellee, replying, sought to avoid the effect of this deed by showing that it was fraudulent and voluntary. Appellant pleaded that this deed had been made in 1884, and that, as more than 10 years had elapsed from that time before the filing of the suit, the statutes of limitation against relief, when based upon fraud or mistake, operated to perfect his ti tle. The argument is a novel one. It is that one out of possession, claiming a right to possession under a fraudulent and void conveyance it may have such conveyance ripened by time into a perfeet one; that it may sustain an action of ejectment against one originally having the better title and in possession. The position is fallacious. The statutes of limitation do not apply (as respects property) to any one not in possession. The plea is a defense toward maintaining the status quo. A mere claim, for whatever time, unaccompanied by actual possession, can give no right under the statute. be, can The judgment of the circuit court was to the effect that appellee, under the Vivion deed, took the better title, and that judgment is affirmed. |