Fifer v. McCarty
243 Mo. 42
Mo.
1912
Check Treatment
GRAVES, P. J.

Action in equity to set aside a quitclaim deed to certain lands in Clark county on the ground that the name of plaintiff was forged thereto, and to set aside a subsequent deed made by the grantor in the alleged forged deed to defendant Hiller. The salient facts pleaded and proven fall within a comparatively small compass. The answers are (1) a general denial, (2) the ten and twenty-four year Statutes of Limitations, (3) laches and estoppel by laches.

Thomas J. Singleton,, formerly of Clark county, Missouri, was the father of plaintiff and the husband of defendant McCarty. In 1881 he died testate; and by his will his lands were devised to his wife for life, with a remainder in fee to an undivided half thereof to the plaintiff in this case.

In 1882 the quitclaim deed in dispute was acknowledged before a justice of the peace in that county, but was not delivered to Mrs. Singleton, the widow, until the day of her marriage to McCarty in the year 1883. The deed was duly recorded shortly after its delivery. All parties interested were residents of Clark county. The fight nisi centered upon the question of forgery or no forgery. Defendant McCarty claims" to have purchased the interest of plaintiff in the lands in dispute, and to have paid for it with a cow and two horses, the stipulated consideration being three hundred dollars. Upon material points the evidence was conflicting, but the trial court solved the conflicts by a judgment for defendants, from which the plaintiff has appealed. Such is an outline of the case.

*47I. The quitclaim deed is regular upon its face as is the acknowledgment of the justice attached thereto. Under our statute, section 2820, Revised Statutes 1909, and the case law of this State, the certificate of acknowledgment is not conclusive proof of the facts recited therein. [Albright v. Stevenson, 227 Mo. 340, and cases cited therein.] The certificate can be rebutted by evidence showing a different state of facts from those recited in the certificate. The case law only differs upon the quantum of proof required. In this State some of the cases require the proof to be “clear, cogent and convincing” and others say that it must be made by “a clear and decided preponderance of evidence” and still others say that such proof should be “clear and satisfactory.” In some other States the proof must be such as to remove all reasonable doubt as to the falsity of the officer’s certificate. Suffice it to say that our rule is not so broad. We have to consider the statute in fixing the rule as to the quantum and character of proof. Whilst as above indicated we have expressed the rule in verbiage somewhat different, yet the meaning is the same. In other words, before we will hold for naught the certificate of acknowledgment, the proof must be clear, cogent and convincing. As we gather from the briefs, counsel do not materially differ as to the rule. It might be gathered from appellant’s brief that counsel were of opinion that the Albright case, supra, relaxed the rule, but if such is the view of counsel he is in error. That case must be read in the light of the facts in judgment. There the officer taking the acknowledgment was the party accused of the forgery and was the real beneficiary of the instrument forged. Having fixed upon the rule of law, we take other questions presented.

II. Defendant invokes the doctrine that we should yield somewhat to the judgment of the trial *48court upon disputed facts. We have often said in equity eases that we will defer somewhat to the judgment of the chancellor below1, because of the fact that he is really in better position to judge of the credibility of the witness. On the other hand we have also said that in equity cases we will speak from our own conscience and not from that of the chancellor, nisi. The latter doctrine we have usually announced in cases wherein we were impressed with the idea that the facts proven did not justify the judgment and decree of the lower court. The fact, however, remains that in equity cases we try the cases de novo and reserve to ourselves the right to satisfy our own conscience. This reservation, however, does not preclude us from yielding in a measure to the judgment of the trial court in cases where there is sharp conflict in the evidence, and wherein the credibility of the witnesses play an important part in the determination of the quantum and weight of the proof. To my mind this is a case peculiarly within the rule contended for by the defendants. There is sharp conflict between the witnesses upon material points. The trial court saw these witnesses. He observed their demeanor upon the stand. He not only heard their language, but he saw their facial expression. He evidently thought some of them had not measured up to the full standard required of them by the oath administered to them. Others he evidently gave credit. We have gone over thé record and are not prepared to say he was wrong. In such case we can well yield in deference to the judgment below.

III. But in this case we need not invoke this rule. The evidence strikes us as it did the lower court. The defendant McCarty is an old woman. She was above seventy at the date of the trial. It is urged that she is contradicted as to the person from whom she actually received the deed. She said it was handed to *49her by Mr. Whiteside, and in this we think she is mistaken. It must have been some other lawyer. That she got the deed and placed it on record there is no question. . That she thought she got it from Mr. White-side, is evident, because Mr. Whiteside was of counsel against her, and she knew the statement could be denied at the time she made it. It was denied and we think that the lapse of twenty-six years furnishes the explanation. We have no doubt that she thought she got the deed from Mr. Whiteside, when in fact she got it from some other person with whom it had been left by the plaintiff’s husband to be delivered to her.

Now going to other facts in this case. When defendant McCarty got her deed she immediately placed it of record, and this too, in the face of the fact that the plaintiff and her husband lived in the county, and not far distant from the county seat. This is not the act of one guilty of forgery or of one cognizant of forgery. For twenty-six years she remained in the county and a part of the time lived in plaintiff’s home. She was the stepmother of plaintiff. Her conduct is not shown to be that of a wrongdoer. The deed she could not produce, but says that her trunk was broken open while in the custody of plaintiff’s husband, and this deed abstracted. The husband of the plaintiff does not deny signing this deed or one like it.- Neither is it denied that the defendant contracted for plaintiff’s interest in the land and actually turned over one horse which was sold by plaintiff’s husband for $135. Plaintiff, it is true, claims that she refused to sign the deed, and defendant demanded the note and got it.

Going now to the other side of the casé. It is admitted by plaintiff that she learned of this deed in August, 1907, yet she says nothing about the forgery for a year thereafter. She says she learned it from Mr. McCarty, the husband of defendant, but awaits *50Ms death before she makes the charge of forgery. Recalling the date in 1907, when plaintiff found out about the deed, let us look at some further facts. In February, 1908, after the death of Mr. McCarty, we find defendant McCarty at plaintiff’s house. "We find her trunk broken into and the original deed taken. We find the plaintiff and her husband trying to induce the old woman to buy a house and have the deed made so as to give her a life estate and to them the remainder in fee. Failing in this, we find that a sanity inquiry was begun, and this failing the present suit was brought. Upon the facts the court below did right.

We might go further. The justice of the peace was long since dead. The man who bought the horse and gave the note above mentioned, was long since dead. The husband alleged to be the party giving the information to plaintiff about the alleg’ed forged deed, was permitted to die before the charge of forgery was preferred. Nearly twenty-six years had elapsed since the deed had been placed of record, and its contents as well as its signatures thereby disclosed to the world. We shall not do it, but, if need be, the rules of evidence might be relaxed in this case. In the case of Richards v. Elwell, 12 Wright (Pa.) l. c. 367, a distinguished jurist said: “There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness and vigor to the dull and torpid brain.” How fitting to the case at bar. After twenty-six years an old woman is charged with forgery. A justice of the peace, dead for eighteen years, is charged with violating the trust imposed upon him by the law. Other most material witnesses gone to the great beyond. Under such circumstances why not relax the rigid rules of evidence? But we do not say we will relax these rules in this case. We are not called upon to do so. Viewed from all the bear*51ings, tbe facts and circumstances in evidence measure up to tbe usually required standard, and justify fully tbe decree rendered by tbe learned chancellor presiding in tbe lower court. Tbe decree was for tbe right party and we affirm it.

All concur.