101 Cal. 405 | Cal. | 1894
The defendant, Bailey K. Leach, borrowed one thousand dollars from the plaintiff July 18, 1891, and, to secure the payment thereof, executed to him a mortgage upon certain lands which appeared by the record to have been conveyed to him by his wife, Mattie A. Leach. This action was brought to foreclose the mortgage against husband and wife, the plaintiff alleging in his complaint that the wife claims some interest in the mortgaged lands, but that her •claim was subject to the lien of his mortgage. Mattie A. Leach filed a separate answer, alleging that she was the sole owner of the lands, and that her husband had never had any interest therein. Upon the trial of these issues the court found that the wife’s signature to the deed under which the husband claimed title was a forgery, but that she had acknowledged its execution to the notary public, and that the conveyance had been placed on record with the notary’s certificate of her acknowledgment indorsed thereon. Ho question was made of the good faith of the plaintiff in loaning the money, and the court held that he was entitled to rely .upon the record evidence of title, and rendered judgment for the foreclosure of the mortgage. From this judgment the defendant, Mattie A. Leach, has appealed.
The Civil Code, section 1091, requires that a grant of real property shall be subscribed by the grantor in order that the title may be transferred thereby, but it is not necessary that the signature of the grantor be affixed by
When the instrument in question was presented to Mrs. Leach for her acknowledgment it was competent for her to adopt the signature of her name that had been placed there without her knowledge or authority, and by such adoption give it the same validity as if placed there by herself. She must be presumed to know her own handwriting, and her statement to the notary that she had executed the instrument to which it was affixed prevents her from questioning the correctness of that statement as against one who, in reliance thereon, has parted with his property. The statute has designated a notary public as one of the officers to whom a grantor may make a formal acknowledgment of his execution of an instrument for the purpose of establishing the fact of such execution, and having a public record made thereof; and when such acknowledgment is made by the grantor and certified by the notary it is a public declaration of that fact to all persons "who may in good faith act thereon, which the grantor is estopped from denying. If the notary is himself deceived, as, for in
Although the court does not find that Mrs. Leach in terms adopted the signature to the deed, yet its finding that she was so negligent in acknowledging its execution as to estop her from disputing the plaintiff’s claim is fully sustained by the evidence. By her own testimony she did not at the time of her acknowledgment deny the genuineness of her signature, and although she says that she then thought the instrument was not the one she had signed in the morning, she failed to give it such an examination as to convince her of that fact, and the testimony of the notary that he handed the instrument to her for her examination, and that she appeared to examine it, shows that she had every opportunity for determining whether or not it was her deed. Having this opportunity for repudiating or adopting the signature, her acknowledgment of its validity es-tops her from questioning that fact, as against the plaintiff, who in good faith has parted with his money to the one in whose favor she made the acknowledgment. If afterwards she ascertained that she had been deceived, and had acknowledged the validity of a deed which was in fact a forgery, the loss would be her own, as against an innocent party who had relied upon such acknowledgment. If she neglected to give the instrument such an examination as would inform her either that another instrument had been substituted for the one which she had signed, or that the signature thereto was not her own, the consequences of such neglect should fall upon herself, rather than upon one who, by
The judgment and order are affirmed.
Garoutte, J. and Paterson, J., concurred.