DEMART BOWLING v. JOYCE VANHOOSE AND DAVID VANHOOSE
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RENDERED:
NOVEMBER 3, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001799-MR
DEMART BOWLING
v.
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE DANIEL SPARKS, JUDGE
ACTION NO. 00-CI-00119
JOYCE VANHOOSE AND
DAVID VANHOOSE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON,1 SENIOR JUDGE.
EMBERTON, SENIOR JUDGE:
This is a property dispute.
Demart
Bowling alleges that by quit claim deed dated August 5, 1997,
and recorded on August 8, 1997, he is the sole owner of certain
property located in Johnson County.
The circuit court found
that Bowling jointly owned the lot with the appellees and James
Tevis.
At a judicial sale, the Vanhooses purchased the property
and the sale was ultimately confirmed.
1
Bowling maintains that
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
the court erred when it found that the parties are tenants in
common and that it should have appointed commissioners pursuant
to KRS 381.135(4) to make a recommendation as to the
divisibility of the property.
We find no error.
The disputed property is a 60 X 140 foot lot purchased
in 1947 by Ray and Ethel Tevis.
Ray died intestate in 1967.
The deed, however, was not recorded until October 31, 1997, and
the affidavit of descent not until 2002.
Ray’s wife, Ethel, and
their four children, Ronald Tevis, Davis Tevis, Joyce Tevis, now
Joyce Vanhoose, and James Tevis are listed as heirs in the
affidavit.
As Ray’s wife, Ethel received a one-half interest in
Ray’s undivided one-half interest in the property giving her a
three-fourths interest.
The remaining one-fourth interest
descended a one-sixteenth to each of the four children.
Ethel later married Lawrence Vanhoose, and in 1994,
she died testate.
In accordance with her will, one-half of her
three-fourths undivided interest was left to Lawrence and the
remaining one-half interest was devised in equal parts to David
and Ronald.
Thus, Lawrence owned a six-sixteenths undivided
interest; David and Ronald each owned a four-sixteenths interest;
and Joyce and James Tevis continued to own a one-sixteenth
interest each.
In August 1997, Lawrence Vanhoose, by quit claim deed,
purported to transfer the entire interest in the property to
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Bowling who, in August 1997, recorded the deed.
Subsequently,
David and his wife and Ronald and his wife conveyed their
combined eight-sixteenths interest to Joyce Vanhoose.
That deed
was recorded on December 21, 1999.
On March 8, 2000, the Vanhooses filed a complaint
seeking judicial sale of the jointly owned property.
Bowling
opposed the petition alleging that by reason of the recorded
deed to him from Lawrence, he was the exclusive owner of the
property.
The property was sold and the sale confirmed.
Bowling does not dispute the facts nor does he
challenge the finding of the trial court that Ethel and her four
children were tenants in common after Ray’s death.
His claim of
sole ownership is based on the fact that neither Ray nor the
appellees recorded a deed to the property prior to his filing of
the deed from Lawrence to him; and, therefore, under KRS
382.270,2 his deed takes precedence over any earlier non-recorded
deed.
The statute in effect at the time this case was decided
provided:
No deed . . . conveying a legal or
equitable title to real property shall be
valid against a purchaser for a valuable
consideration, without notice thereof . . .
until such deed . . . is acknowledged or
proved according to law and lodged for
record.
2
Kentucky Revised Statutes.
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The purpose of the recording statute is to protect
good faith purchasers against claims to the property of which
they are not and could not have been reasonably aware.
It would
be a complete misconstruction of the statute and of well
established property rules, however, to hold that merely
recording a deed can divest tenants in common of their interest
in the property.
It is a fundamental rule that the grantor can
grant only his interest in the property and no more.
KRS
381.150 states:
A deed and warranty of land purporting to
pass or assure a greater right or estate
than the person can lawfully pass or assure,
shall operate to convey on warrant so much
of the right and estate as such person can
lawfully convey.
And in Vanhoose v. Fairchild,3 the court stated that:
Where no title, legal or equitable,
passed by a conveyance to the purchaser, for
the reason that the title was in another
person than the vendor, the fact that the
purchaser paid value and had no notice is
immaterial.
Although dealing with facts not identical to those
presented in this case, the reasoning of the court in Sirls v.
Jordan4 has direct application to our analysis.
In Sirls, an
affidavit of descent omitted three heirs at law of the decedent.
After the property was sold to a purchaser with no knowledge of
3
145 Ky. 700, 141 S.W. 75, 76 (Ky. 1911) (citations omitted).
4
625 S.W.2d 106 (Ky.App. 1981).
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the undisclosed heirs, one undisclosed heir brought an action
for partition or sale of the property.
The purchasers in that
case relied on two recording statutes, KRS 382.0805 and KRS
382.120,6 neither of which the court held could defeat the
interest of the undisclosed heirs.
Particularly relevant to the
present case is the court’s discussion of basic property law.
Finally, we are confronted by the
principle that the decedent’s estate in
intestacy vests in the heirs at law
immediately upon his death. It is
undisputed that the appellee is an heir at
law of the decedent and that title vested in
her and the other heirs at Eukley McNeely’s
death. We add to this the fundamental rule
that what passes under a deed is that title
that the grantor had.
* * * *
The inescapable conclusion is that the four
heirs could warrant and convey only the
interests which they inherited from the
decedent.7
Applying the recited law to this case, Lawrence could not have
conveyed to Demart the entire property because the heirs of Ray
Tevis owned their undivided interest under the law of intestate
descent and distribution.8
Ray’s death.
Their title vested immediately upon
KRS 382.270 is simply intended to protect innocent
5
KRS 382.080, like KRS 382.270, is a recording statute and extends to leases
of oil, gas, coal, or mineral right and privilege for longer than five (5)
years.
6
KRS 382.120 provides the requirements for an affidavit of descent to enable
the heir to file a deed and convey his interest.
7
Id. at 108 (citations omitted).
8
KRS 391.010.
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purchasers against claims to property that was conveyed to them.
It does not alter the long standing, undisputable rule, that the
deed can not pass greater title than was possessed by the
grantor.
Finally, Demart contends that the circuit court was
required to appoint three commissioners to determine
divisibility.
Demart never requested division of the property
and, to the contrary, stated in an affidavit that the property
was not subject to division.
Moreover, where the court can
ordinarily presume and take judicial notice that the property
can not be divided without materially impairing the value of the
several interests, there is no requirement that proof be offered
on indivisibility.9
The 60 X 140 lot in question is owned in
three fractional interests.
There was no request to partition
the property, and the court properly found that it was not
divisible; there was, therefore, no need to appoint
commissioners.10
The orders and judgment of sale of the Johnson Circuit
Court are affirmed.
ALL CONCUR.
9
10
Foreman v. Taylor, 239 S.W.2d 260 (Ky. 1951).
KRS 381.135(4).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul D. Deaton
Paintsville, Kentucky
George K. Wells
Paintsville, Kentucky
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