GREGORY S. BILLITER and ELANA J. BILLITER v. BILLY R. MILLER; WANDA MILLER; and LARRY DAVID BILLITER
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RENDERED: AUGUST 8, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001592-MR
GREGORY S. BILLITER and
ELANA J. BILLITER
APPELLANTS
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
CIVIL ACTION NO. 99-CI-00845
v.
BILLY R. MILLER;
WANDA MILLER; and
LARRY DAVID BILLITER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
PAISLEY and TACKETT, Judges; HUDDLESTON, Senior Judge.1
HUDDLESTON, Senior Judge:
Gregory Billiter and his wife, Elana
Billiter, appeal from a Pike Circuit Court judgment voiding a
November
1997
deed
(the
Billiter
deed)
under
which
Gregory
claims title to the property (a portion of “the old Ross Miller
1
Senior Judge Joseph R. Huddleston sitting as Special Judge
by assignment of the Chief Justice pursuant to Section 110(5)(b)
of the Kentucky Constitution and Ky. Rev. Stat. (KRS) 21.580.
place)
at
the
center
of
this
dispute.
Pursuant
to
that
judgment, Gregory shall not “inherit any portion of the property
described in that deed by virtue of being an heir of Marie
Billiter pursuant to the Affidavit of Descent . . . .”
Having
found that Gregory “had notice of an unrecorded deed to Raymond
[Miller (the Miller deed)],” the court declared the Miller deed
“to be superior thus vesting title in and to the Defendants
[Appellees].”
Our
standard
review
Because
established.
of
this
case
in
was
this
tried
context
before
is
the
well
court
without a jury, its factual findings “shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses
.
.
.
.”2
If
a
factual
finding
is
supported
by
substantial evidence, it is not clearly erroneous.3
Substantial
evidence
consequence
is
sufficient
people.4
“evidence
to
induce
of
substance
conviction
in
and
relevant
the
minds
of
reasonable
However, Gregory and Elena are essentially arguing that
2
Ky. R. Civ. P. (CR) 52.01; Cole v. Gilvin, Ky. App., 59
S.W.3d 468 (2001).
3
Cole, id. at 472-473.
4
Id. at 473.
2
the court misapplied the law to the facts, a matter which is
reviewed de novo.5
In reaching its decision, the circuit court summarized
the relevant facts as follows:
1.
Ross
Miller[,]
who
owned
property
on
Cowpen [Creek,] had several children and deeded his
property to them.
All of those children except Marie
Billiter and Raymond Miller sold their parts and the
property came to be owned by [Marie and Raymond], her
brother.
property
[Marie
between
and
Raymond]
themselves.
In
then
divided
1963
they
the
divided
that tract with Marie getting the [upper tract] and
Raymond getting the [lower tract].
Raymond, thinking
that Marie would outlive him and having no objects of
his bounty [nearer], deeded his property to [Marie]
but continued to live on his part.
2.
[Marie’s] health started to fail sooner
than Raymond’s and so[, she] deed the property back to
Raymond on June 7, 1994[,] [by deed] of record in Deed
Book 765, Page 525.
But[,] that deed was not recorded
until February 18, 1999.
5
That deed would have left
Bob Hook Chevrolet-Isuzu, Inc. v. Transportation Cabinet,
Ky., 983 S.W.2d 488, 490 (1998).
3
intact
the
division
between
[Marie
and
Raymond],
brother and sister, of the old Ross Miller place.
3.
Before Raymond [] recorded his deed[,]
Marie[] died in March of 1997. [Her husband], Luther
Billiter[,]
and
six
children
surviv[ed]
her.
See
Affidavit of Descent of record in Deed Book 744, Page
95.
4.
The
Defendant,
Gregory
S.
Billiter,
[is] one of those children and [he] had been living on
Marie’s part of the old place for many years.
On
April 30, 1997[,] [by deed] of record in Deed Book
736, Page 667, he [acquired] a portion of the Marie
Billiter
tract.
but
property
which
adjoined
the
Raymond
Miller
The validity of that deed is not in dispute
its
boundaries
with
the
Old
Raymond
Miller
property are and that will be discussed hereafter.[6]
5.
deed
from
the
In the meantime[,] [Gregory] prepared a
Marie
Billiter
heirs
to
himself
for
Raymond’s old property, which Marie had deeded back to
6
Gregory did not appeal the court’s determination that “the
correct boundary line between the property of the parties hereto
is as shown on Luke Hatfield’s map dated July 31, 1999, and runs
as the ‘line claimed by Billiter’ on that map from where the
maple tree fell on the north side of Cowpen Creek to the
mulberry tree in a straight line.”
Accordingly, further
discussion of that issue is unnecessary.
4
Raymond
Luther
[the
but
which
Billiter
Billiter
Raymond
[Gregory’s
deed],
had
not
father]
dated
then
recorded.
signed
November
6,
that
deed
1997[,]
of
record in Deed Book 756, Page 188 and recorded July
20, 1998, but none of the other children did.
That
deed therefore gave paper title to Gregory[] [of] a
7/12ths interest in the property, his dad’s half and
[]
1/12th
by
inheritance
from
his
mother,
Marie
Billiter.
6.
Billiter
As to the 5/12th interest of the Marie
estate
not
conveyed
to
[Gregory],
the
recording by Raymond Miller of his deed [the Miller
deed]
on
February
18,
1999
vested
in
him
their
interests.
7.
The
deed
to
Gregory[],
the
one
that
conveyed paper title to 7/12ths, [by deed] of record
in Deed Book 756, Page 188, covered the old Raymond
Miller place.
8.
The
Defendants
now
assert
that
[Gregory’s] deed from the Marie Billiter heirs [the
Billiter deed], recorded first, is of no worth because
[Gregory
and
Elena
(the
Billiters)]
Raymond Miller’s prior unrecorded deed.
had
notice
of
That is hard
to refute given the fact that on April 30, 1997, [by
5
the Billiter deed of record in] Deed Book 736, Page
667,
being
the
deed
whereby
he
[acquired]
the
[property] on which he had been living, over on the
old Marie Billiter side of the line, runs . . .” from
the fence to Raymond Miller’s line, thence with the
said Miller line, to a creek, thence with the creek to
the
beginning.”
Elena]
on
notice
sufficient
would
That
or
at
information
have
led
to
certainly
least
to
its
put
puts
[Gregory
provides
them
discovery
on
them
and
[with]
inquiry
upon
a
that
search.
[Gregory’s] sister, testifying [on] his behalf, said
that she was pretty sure that [Gregory] would have
known of the earlier deed.[7]
Raymond Miller lived on
the property at the time of the deed [and was] going
back and forth between the home[] of a woman he had
married
certainly
in
Floyd
County
sufficient
to
and
put
his
anyone
home.
on
That
notice
of
is
a
deed.
7
Although Gregory takes issue with this characterization of
his sister’s testimony, the court did not rely solely upon this
factor in reaching its determination, nor do we.
When asked
whether Gregory would have known that Raymond owned the property
in question, Gregory’s sister replied: “I guess. I can’t speak
for what Steve knows.” In response to being asked whether “. .
. everybody knew that Raymond had a deed for it,” she said: “I
assume so.”
Although the quoted language is not decisive, the
court’s interpretation is not inappropriate when viewed in
context.
6
9.
Wanda
Miller,
The
Defendants,
[acquired]
a
Billy
portion
R.
of
Miller
the
and
Raymond
Miller tract in 1999 [by virtue of a] deed of record
in Deed Book 768, Page 665.
Citing Turner v. McIntosh,8 the circuit court correctly
observed that “[a]n unrecorded deed is valid and must prevail
over a subsequent deed if the subsequent [g]rantee knew or had
notice
of
its
existence
prior
to
its
purchase,
or
had
information sufficient to put him on inquiry that would have led
to
its
discovery
upon
equivalent to notice.”
a
search;
such
information
is
deemed
Again relying upon Turner, the court
further concluded that “where facts and circumstances suggest
the necessity of investigation and such investigation would have
led to [the] discovery of an unrecorded deed[,] information is
legally sufficient to constitute notice.”
Applying these principles to the facts presented, the
court
voided
the
Billiter
deed
based
on
its
finding
that
Raymond’s possession of the property and the reference thereto
in the Billiter deed constituted information sufficient to put
Gregory on inquiry notice of the prior unrecorded Miller deed.
8
Ky., 379 S.W.2d 470, 472 (1964), citing, in turn, Hurley v.
Hackney, 202 Ky. 452, 260 S.W. 16 (1924).
7
On appeal, Gregory and Elana argue that Gregory had
neither actual nor constructive notice of Raymond’s unrecorded
1994
deed
when
challenge
the
he
recorded
finding
that
his
deed
Raymond
in
1998.
lived
issue during the relevant time frame.9
on
They
the
do
not
property
at
Rather, they contend that
this fact “did not put [Gregory] on constructive notice that
[Raymond]
owned
the
[Gregory]
recorded
property
his
on
deed,
July
because
20,
1998,
[Raymond’s]
the
date
use
and
possession of the property had continued after he had deeded the
property to Marie in 1993.”
Consequently, any search resulting
from knowledge of Raymond’s possession would have produced the
1993 deed from Raymond to Marie, leading to the conclusion that
“Raymond’s
possession
was
inconsistent
with
record
title
or
color of title.”
In
their
view,
the
instant
case
is
distinguishable
from Turner “due to the nature, timing and circumstances” of
Raymond’s possession of the subject property.
Because Raymond
did not testify that Gregory was aware of the unrecorded deed,
“there is simply insufficient proof that [Gregory] had actual
knowledge of the unrecorded deed.”
According to Gregory, his
explanation of the descriptive language contained in his deed is
9
Raymond has apparently lived in a trailer located on the
property and maintained a garden there since 1994.
He also
allowed Gregory and Elena to raise a garden on a portion of the
property.
8
“credible, upon reviewing the two (2) prior deeds in the chain
of title to the April 30, 1997 deed from Luther Billiter, Jr.”
as
this
Court
“is
certainly
aware
of
the
common
mountain
practice”10 of utilizing a property description from an earlier
deed in the chain of title.
In response, the appellees contend that “possession of
land, when exclusive and not shared with the record title holder
is notice to the world of every legal and equitable right that
the possessor has in it, putting all persons on inquiry as to
the
nature
of
the
claims
of
the
occupant.”
Under
their
reasoning, since Gregory and Elena recorded a deed referencing
Raymond’s property line and knew he was living in a mobile home
on the property, they were required to inquire further and “such
inquiry would have led to the discovery of the unrecorded deed.”
During
the
proceedings
below,
the
court
heard
testimony from the parties and their respective witnesses which,
if
believed,
factual
constitutes
findings.
substantial
Although
the
evidence
testimony
is
to
support
conflicting
its
on
collateral points,11 “[i]t is within the province of the fact-
10
On cross-examination, Gregory testified that:
“Plain and
simple, we just took the deed my dad had and went to an
attorney, and he typed the same thing up.”
11
Raymond’s former wife, to whom he was married from 1991
until 2000, testified that she was unaware of the 1994 deed by
virtue of which Raymond claims ownership of the subject
property. She further testified that she lived with Raymond on
9
finder to determine the credibility of witnesses and the weight
to be given the evidence.”12
Beyond that, the parties are in
agreement regarding the sequence of events which prompted the
instant
focusing
litigation
on
the
as
outlined
“race-notice
by
the
court
issue.”
with
the
debate
Accordingly,
the
dispositive question becomes whether Raymond’s possession of the
subject property coupled with Gregory’s implicit acknowledgement
of same, i.e., adoption of the call to “Raymond Miller’s line”
in his subsequent deed, constitutes information sufficient to
put him on inquiry that would have led to discovery of the prior
unrecorded deed.
Gregory acknowledges that he failed to make inquiry
despite
being
aware
that
Raymond
was
in
possession
of
the
property when he recorded his deed, arguing that to do so would
have been an exercise in futility.
In relying upon the fact
that he did not have “actual” knowledge of the prior unrecorded
the property for one year before returning to her house in Betsy
Lane.
According to her, Raymond kept the home and furnishings
located on the property, traveled back and forth between the two
homes and maintained a garden on the property.
Raymond
testified that he did not recall mentioning the 1994 deed to her
at the time.
12
Cole, supra, n. 2, at 473.
10
deed
and
arguing
that
his
explanation
regarding
the
deed
description is “credible,”13 Gregory misconstrues applicable law.
In
relevant
Kentucky’s
Turner,
part,
that
viewing
a
highest
Court
recorded
lease
concluded,
which
had
in
been
executed by the holder of a prior unrecorded deed to the tract
of land in question and which included a mention by date of that
deed
constituted
lease.14
sufficient
notice
of
the
contents
of
the
Thus, the grantees [including Turner] were not bona
fide purchasers for value without notice.15
Beginning its analysis with the excerpt adopted by the
circuit court, the Turner Court then engaged in the following
analysis which is equally applicable here:
We
appellants
believe
[Gregory
it
and
is
abundantly
Elena],
when
clear
they
that
purchased
[acquired] the two interests, had sufficient knowledge
to place them on such inquiry as would have led upon
investigation
to
the
[Raymond’s]
prior
deed
interests.
The
discovery
conveying
evidence
13
is
of
to
clear
him
that
McIntosh’s
the
same
appellant,
Whether this practice is common in a particular geographic
area is not the relevant question.
Contrary to Gregory’s
implicit assertion, we are neither required nor permitted to
treat
him
any
differently
than
other
citizens
of
the
Commonwealth because of a local custom.
14
Turner, supra, n. 8, at 473.
15
Id.
11
Turner [Gregory], knew S.E. Clair had negotiated to
sell the two interests to McIntosh [Raymond was in
possession of the property as indicated by his mobile
home and garden], although S.E. Clair [Raymond had not
recorded his deed and did not claim that Gregory was
aware of its existence] claimed the transfer did not
take place.
this
was
not
Appellants [Gregory and Elena] maintain
enough
information
probing upon their part.
to
prompt
further
On the other hand, there
were other facts and circumstances that should have
alerted them [the deed description].
This pertinent
statement appears in 92 C.J.S. Vendor and Purchaser §
326, pp. 233-234:
So,
where
the
vendor
[grantor]
presents
conveyances to himself which are prima facie
valid, and assures the purchaser [grantee]
that his title is perfect, it has been held
that
the
latter
is
under
no
duty
to
investigate further, in the absence of facts
and
of
circumstances
suggesting
investigation;
but
the
necessity
where
such
circumstances exist, the purchaser [grantee]
is not justified in relying on the vendor’s
[grantor’s] statements.
12
It is the general rule that whatever puts a party on
inquiry amounts “amounts in judgment of law to notice, provided
the inquiry becomes a duty, and would lead to a knowledge of the
facts
by
the
understanding.”16
has
been
held
to
exercise
of
ordinary
intelligence
and
Possession of land by a third party [Raymond]
constitute
sufficient
information
to
put
a
subsequent grantee on inquiry.17
To have the effect of notice, however, the possession
must be of such a character that the “attention of the purchaser
[grantee]
is
at
once
called
to
it;”
the
possession
and
occupation must be “inconsistent with the title upon which the
subsequent purchaser relies.”18
Such is the case here.
Whether
a subsequent grantee (Gregory) had actual notice or sufficient
information to put him on inquiry that would have led to the
discovery of the unrecorded deed is “purely a factual matter”
for the court to resolve.19
Because there is substantial evidence to support the
circuit court’s finding that the call to Raymond’s property line
16
Everidge v. Martin,
(1915)(citation omitted).
164
Ky.
497,
175
17
S.W.
1004,
1008
Leslie v. First Huntington Nat’l Bank, 301 Ky. 145, 191
S.W.2d 204, 208 (1945)(citation omitted).
18
Id. (citation omitted).
19
See OAG 83-276 and the cases cited therein.
13
in the Billiter deed and/or Raymond’s possession of the subject
property constituted sufficient information to put Gregory on
inquiry that would have led to discovery of the Miller deed upon
a search, we are bound by that finding.
Further, we agree that
imposing such a burden on someone in Gregory’s position is not
unreasonable given the circumstances.
In
summary,
the
circuit
court’s
resolution
of
the
notice issue is both equitable and consistent with governing
precedent,
including
Turner.
Accordingly,
its
judgment
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Robert C. Bishop
ROBERT C. BISHOP & ASSOCIATES,
PLLC
Radcliff, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
14
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