179 Iowa 790 | Iowa | 1917
On this appeal, rye have to deal only with the rights of the children of A. T. Keeney in the land. It is claimed by these children that the widow, Stella B'lachly, upon the death of her husband, A. T. Keeney, had only a one-third interest in the land, and that her deed to Lou K. Newburn conveyed no more than this interest, and that the other defendants took only the interests of their grantors. The defendants, however, contend that, on the 12th day of July, 1910, about two months before the death of the said Keeney, he conveyed all liis right, title and interest in the lot in question to his wife, Stella Keeney; that, at the time she made the conveyance to Lou B. Newburn, December 13, 1913, she had good and perfect title to the land, and her deed to Newburn conveyed a perfect title, which passed to the other defendants by subsequent conveyances. The plaintiff's reply is that the deed relied upon as having been executed by A. T. Keeney to his wife, Stella Keeney, was a forgery; was neither executed nor delivered during his lifetime; that it passed no title to Stella of any interest held by Keeney in the land; that the only interest she had at the time of his death was her one-third interest as widow, and her right to occupy it as a homestead.
It is apparent that, if A. T. Keeney did not make this deed to Stella Keeney, purporting to be executed on July 12, 1910, then, on his death, only one third passed to her, and two thirds to his children. It is apjmrent, then, that if Stella had, at the time of Keeney’s death, but her statutory right to a distributive share in the properly, she could and did pass nothing more than that by her deed io Newburn, and that Mrs. Newburn could convey no more than she had received. The district court found for the plaintiffs, and that the purported deed from Keeney to his wife was a forgery; that Lou B. Newburn took only a one-
It is conceded that, on and prior to the 12th day of July, 1910, A. T. Keeney was the owner of Lot á in Block 1 in Buncombe & Behring’s Addition to Fort Dodge; that at that time he was the husband of the plaintiff Stella Keeney Blachly; that, on September 11, 1910, Keeney was killed in a railroad wreck; that he had been married to Stella about 7 years; that he had two children by her, Fernie and Freddie Keeney; that, at the time of the trial, Fernie was 10 years old and Freddie 9; that, at the time of his death, he had two other children, born of a previous marriage, both under 18 years of age at the time of the trial; that Keeney died intestate; that, on the “31st” day of September, 1913, Stella Keeney intermarried' with her co-plaintiff, C. W. Blachly; that, soon after her marriage to Blachly, she became acquainted with one John Newburn, a lawyer in Des Moines; that she met him at Fort Dodge; that Blachly, at the time of his marriage with Stella, had a divorced wife living; that Newburn came to Mrs. Blachly’s house with her husband to see about a case that Newburn was then trying for her husband; that Newburn subsequently visited the home to consult with her husband, Blachly, with reference to the custody of some minor children, who, it appears, were in the custody of his former
. “This article of agreement made and entered into this 6th day of November, A. D. 1913, by and between Mrs. Stella Blachly and Charles W. Blachly, of Webster County, Iowa, parties of the first part and John Newburn of Polk County, Iowa, party of the second part, witnesseth, to wit : That the said Stella Blachly and Charles W. Blachly have employed the said John Newburn to bring an action to modify a certain decree of divorce in the case of Clara Blachly vs. Charles W. Blachly, entered in the district court of Polk County, Iowa, during the May term of 1913, said modification’s desire is to obtain the -custody of the minor child Francis Mary Blachly, child of the said Clara Blachly and Charles W. Blachly, and if need be, to go to the city of Wichita, Kansas, to obtain the custody of said child, and if need be, in case of the failure to get said decree modified in the district court of Polk County, Iowa, to appeal said case to the Supreme Court of .the state of Iowa in an effort to get said decree modified. It is the opinion of (lie said Newburn that the said decreé can be modified, but he has not guaranteed same to the.parties of the first part, and the said Stella Blachly and Charles-W. Blachly are to convey to the said Néwburn and furnish a good and perfept title to the property known as 'Lot 4, Block {I,’ in Buncombe and Behring’s Addition :to Fort Dodge.. Iowa, free of all lien and incuhibrances whatsoever, and the said John Newburn is to pay to the said Stella Blachly, when the title is perfect, including money that has. been advanced within the last 5 days in the aggregate sum of $250, and the remainder of said property or value thereof
On the 24th day of November, 1913, following the execution of this contract, the deed in controversy was put on record. This deed purports to be executed by A. T. Keeney, husband of Stella Keeney, to Stella Keeney, in consideration of one dollar and love and affection, and conveys to her the property in controversy, with covenants of warranty, and is dated on the 12th day of July, 1910. There is evidence that this alleged forged defed was in the hands of John Newburn, but there is no evidence that it was ever delivered to, ■ received by, or in the possession of, Stella Keeney, or that she ever knew of its existence until the year 1915. The deed purports to be acknowledged. The following acknowledgment is attached:
“State of Iowa, Polk County, SS.
“On this 12th day of July, A. D. 1910, before me, a notary public in and for said county, personally came A.. T. Keeney, to me personally known to be the identical person whose name is affixed to above deed as grantor, ¿nd acknowledged the execution of the same to be his voluntary act and
“T. L. Sellers,
“Notary Public in and for Polk “(Notarial Seal.) • County, Iowa.”
Edith Anderson was called on behalf of the plaintiff, and testified that she was 22 years old; a stenog'rapher, 3 years’ experience; knew John Newburn; commenced working for him in July, 1913, and continued until April, 1914; that she was the only stenographer in the office; used an L. C. Smith typewriter; that that was the only kind in Newburn’s office; that she thought she saw the deed in-controversy before in the city of Des Moines. It was shown to her on the trial. She said:
“I think I wrote out that papei’, so far as the typewritten portion is concerned. It was while I worked in Newburn’s office. Cannot say the exact date. Wrote it at Mr. Newburn’s request. Did not see anyone sign the name of A. T. Keeney to the paper. While I was writing it, Mr. Newburn saw me erasing, and he wanted to know what I was doing. I told him I had made a mistake about the date. He told me that I better take another blank and copy the deed. I remember this transaction because I asked him if he wanted to have the dates on it as they were on the copy he gave me. He said, ‘The same dates.’ He wanted me to"copy it just exactly as he had written it. It was his custom to make a draft of whatever deed he had, and have me copy it. What impresses this upon my mind was the fact that the dates were so old, and I remember writing it and antedating it, dating it back. Newburn died after I left there. I cannot recall the date I wrote the deed, but it was between July, 1913, and April, 1914.”
Mrs. Stella B'lachly, called' on the part of the plaintiffs, testified:
“We were married in September, 1913, and in November, 1913, Newburn came to my house with my husband.”
She further answered: “The comparison that I have made of the signature on the deed in question with other signatures that I know to be genuine, is not the only reason why I say that the signature on the deed in question is not genuine.”
G. B. Wheeler, called for the plaintiff, testified that he was cashier of the Fort Dodge National Bank. Had been in the banking business for 25 years. Had been cashier, assistant cashier, and paying teller’, of banks. Had made an effort to study and familiarize himself with the characteristics of handwriting, and with signatures. Had experience in examining and studying handwriting and signatures. He was then shown the signature to the deed in question. He was also shown what was admitted to be. the genuine signature of A. T. Keeney. His opinion was asked as to whether or not both signatures were made by the same individual. He answered:
“I shouldn’t like to pay a check knowing one to be genuine axxd ixot knowing the other was. They don’t look to me as though they were written by the same person.”
E. H. Zuerrer, called for the plaintiff, testified that he resided in Fort Dodge. Had been engaged in the banking business for 16 years. Connected with the Commercial National Bank. Had occupied the position of assistant cashier. Had made a study and devoted time in reference to the
“I should say that the signature of A. T. Keeney in the deed iii question and the ‘ signature upon the exhibit admitted to be genuine, are not both written by one and the sdme hand. I should' say that they were not written by one and the same hand.”
D. J. Cong'hlan testified:
“l am cashiér of the Iowa Savings Bank of Fort Dodge. Have been connected with that bank 12 years. Was formerly connected with the First National Bank for 13 years. I was a teller of the First National Hank about 7 years. Have made a study of handwriting. Knew A. T. Keeney. He kept an account in the Iowa Savings Bank. We had his signature in the bank. It is ciistomary, when an account is opened at the bank, to have the signature of the depositor on file. Mr. Keeney signed a card marked ‘O.’ On Exhibit ‘O'1 is Mr. Keeney’s ' genuine signature. The card was left in the bank for the purpose of identification. He did business with the bank up to the time of his death. It .does not seem to me that the signature on exhibit ‘O’ and the signature on the deed in question is in the same handwriting. It is very different looking signature. On the card, the signature is more free.” .
T. L. Sellers, called on behalf of' the defendant, testified that he was an attorney, and had resided in Des Moines for 30 years; that his office was on 5th and Locust Streets, on the east side; that he was acquainted with John New-burn; that Newburn had an office on the west side of the river in the Flynn Building, just opposite the Chamberlain Hotel; that he was a notary public in the year 1910. He further testified:
“In the matter of taking acknowledgments, I am always acquainted with the person, or acquainted with the person that introduces him. Sometimes I take acknowledg
He was asked this question:
“What do you say as to whether' or not that acknowledgment was or was not taken on the date shown thereon, July 12, 1910? A. I would say that the acknowledgment was taken on the date that it shows.”
He also testifies that he was a notary public in November, 1913; that he couldn’t recall A. T. Keeney at all; didn’t remember the man; knew no reason why A. T. Keeney should come down to his office on the east side to acknowledge a deed; that he, himself, did not prepare the deed; that the only-connection he had with it was simply the affixing of his signature and the notarial seal.
This constitutes substantially all the evidence on which the case was submitted. Tins record discloses a mental attitude on the part of Newburn and a personal interest that might lead him to do the thing charged to have been done by him. Lou R. Newburn is the wife of John New-burn, and was during all the time covered by the matters here in. controversy. We think the 'record discloses beyond much controversy that the signature in this deed is not in the handwriting of A. T. Keeney.
Two legal questions arise upon this record, and are urged upon our attention:
1st. The competency of Stella Keeney Blachly to testify to personal transactions and communications between her and John Newburn, under the inhibitions of Section 4604 of the Code of 1897. John Newburn was dead at tne time she was examined as a witness.
The statute which it is contended makes her incompetent as a witness (Section 1G01 of the Code of 1897) provides:
The purpose of this rule is to exclude.the testimony of the survivor as to a personal transaction with the decedent, when offered against the latter’s estate. The basis of the rule is that, the dead man’s mouth being closed, the law closes the mouth of him who seeks to assert a claim against the dead man’s estate, in so far as, in the assertion of the claim, the proof may rest upon personal transactions or communications between him and the dead man. Evidence as to personal transactions or communications between the living and the dead are not prohibited by this statute, even when the living .is a party to the suit, and even though the suit be against the estate of the dead man, or against those who are the representatives of the dead man’s estate, or successors of the dead man to an estate left by him. The inhibition of the statute as to testimony concerning personal transactions and communications between the living and the dead, relates to the party to the suit, etc., and then only when the suit is a.gainst the executor of a dead man, the administrator of a dead man, heir at law or next of kin of a dead man, the assignee of a dead man, the legatee of a dead man, or the devisee or survivor of said
In the case at bar, the controversy is between the living, Lou E. Newburn, and her grantees, and the plaintiffs in this suit. It is not against anyone claiming an interest in the estate of John Newburn in any of the capacities mentioned in the statute. In French v. French, 84 Iowa 655, 659, the basic principle of the statute is stated in this language:
“The statute under consideration (meaning the statute in question) was designed to protect persons claiming some right or title from a person loho at the time of the examination is dead■, or incompetent to testify by reason of mental • unsoundness.”
None of the parties against whom Stella Keeney Blachly was permitted to testify claimed any right or title from John Newburn, and she did not come within the inhibition of the statute. If John Newburn acted in any capacity, he acted as the agent of his wife, Lou. Transactions" with him as agent do not come within the inhibitions of the statute.- See Reynolds v. Iowa & Nebraska Ins. Co., 80 Iowa 563; also Salyers v. Monroe, 104 Iowa 74. We have not overlooked what is said and the construction put upon the statute in Campbell Banking Co. v. Cole, 89 Iowa 211. In Sorensen v. Sorensen, (Neb.) 100 N. W. 930, the Supreme Court of Nebraska said:
“It may be conceded that the witness was interested, and the testimony is of conversations and transactions had between the witness and the deceased; yet, unless the adverse party is the representative of the deceased person, the evidence is not within the ban of the statute.”
• It is true that, in the suit at bar, Lou R. Newburn was the widow of John Newburn and was a party to the suit, and is the one through whom the other defendants claim title. It is true that the testimony of Stella Keeney
That John Newburn came to the plaintiff Stella Blachly, and in conversation with her discovered that she had no deed to the property in controversy; that the title was in her husband; that she was only claiming a distributive share in the property, and her statutory right of occupancy as a homestead; that he was told by her that, so far as she knew, her husband had left no deed; that he learned that her husband had two children by a former wife, who would' inherit from their father an interest in the estate; that he told her she ought to have the deed to the place; that she ought to- have it fixed up; that he could make her a perfect deed; that she could have a perfect, deed, and that she could then do with the home as she pleased; that he went to Des Moines and returned; that this was in November, 1913, long after the death of her husband; that, on his return, he presented to her and her husband the article of agreement dated November 6, 1913, hereinbefore set out, in which it was provided that Stella Blachly and her husband, Chas. W. Blachly, should convey to him a good and perfect title to the property in controversy, free of all liens and incumbrances whatsoever; that, between that time and the 24th day of November, 1913, following, a deed from A. T. Keeney
We do not pretend to account for the fact that the acknowledgment was taken before a reputable lawyer of this city, and appears to have been acknowledged on the 12th day of July, 1910. The notary, however, testifies that he did not personally know Keeney; had no personal recollection of his eve]’ appearing before him; that he cannot account for the fact that Keeney, who had ño acquaintance with the notary, should have gone from the corner of 8th Street on the west side to 5th Street on the east side to have this deed acknowledged. He further testifies that he took acknowledgments when he was not acquainted with the person, if he was acquainted with the person who introduced him as the person, providing the person who introduced him was, in his judgment, a reputable person and reliable. It does not appear that he was acquainted even with the signature of A. T. Keeney. The statute, hoAvever. provides:
“That the person making the acknowledgment was known to the officer taking the acknowledgment to be the identical person whose name is affixed to the deed as gran
The notary called by the defendant in his testimony lessens the probative force of the certificate by negativing one of the facts essential to be, and which in fact was, stated in the certificate, to Avit: “Personally came A. T.
Keeney, to me personally knoAvn to be the identical person Avhose name is affixed to the aboAre deed as grantor.” The notary did not know the man who purported to acknoAvledge the deed; did not know his handwriting; had no acquaintance Avith him at all; has no recollection of ever seeing him; and the notary evidently depended, in making his certificate, upon some person’s assertion whose name is not recorded, and not made known in this record. Our only conclusion from this record is that the notary Avas imposed upon in some way, and did not give attention to the dates appearing upon the instrument as he should have done in performing this solemn ministerial act. There is no evidence of the execution of this instrument outside of the mere fact of the acknowledgment appearing upon it. and Ave conclude that this has been overcome by the substantive evidence and the facts and circumstances disclosed in this record.
Upon the Avhole record, Ave think the court was right, and the cause is — Affirmed.
